[00:00:00] Speaker 02: Case number 23-3019, United States of America, Princess David Floyd at balance. [00:00:06] Speaker 02: Ms. [00:00:07] Speaker 02: Amato for the at balance, Ms. [00:00:08] Speaker 02: Kelly for the at balance. [00:00:11] Speaker 00: Morning, Mr. Martin. [00:00:12] Speaker 02: Good morning. [00:00:13] Speaker 02: Good morning, Your Honors. [00:00:15] Speaker 02: May it please the court? [00:00:17] Speaker 02: On behalf of Mr. Floyd, we assert that his trial counsel at the district court level was ineffective during the plea negotiation phase by agreeing to an enhancement, which was part of the ultimately the plea agreement, which was signed. [00:00:31] Speaker 02: and agreed to. [00:00:32] Speaker 02: He was ineffective in the negotiation, in informing the client, the defendant, Mr. Floyd, at that time that this was an appropriate plea agreement. [00:00:46] Speaker 02: Mr. Floyd, in this case, was charged, as the court is aware, with one count of drug conspiracy. [00:00:52] Speaker 02: But as part of the guideline calculations, as part of the plea agreement, the parties agreed to a two-level upward adjustment under 2D1.1B1, otherwise known as the gun enhancement. [00:01:03] Speaker 00: Did the parties agree to that? [00:01:05] Speaker 00: I mean, Mr. Floyd's counsel reserved the right to argue that it was not applicable, right? [00:01:14] Speaker 02: did not. [00:01:15] Speaker 02: The parties agreed that the application of the guidelines would start out with a drug offense level, which they agreed to, and then also to the two level points upward for the 2D1.1B enhancement. [00:01:29] Speaker 02: So this was not a plea where the parties agreed to disagree. [00:01:32] Speaker 02: This was a plea where both parties agreed to that and [00:01:37] Speaker 02: And so therefore, if later on defense counsel tried to object to it, it would have been a breach of the plea. [00:01:46] Speaker 02: And so therein lies the issue and the ineffectiveness in agreeing straight out in the plea agreement that the enhancement applied. [00:01:56] Speaker 02: And submit that under the Strickland prong, the first prong, that it was [00:02:05] Speaker 02: that trial counsel's conduct fell below an objective standard of reasonableness. [00:02:10] Speaker 00: How are we to interpret the reservation of allocution section of the plea agreement that said that the parties could address the correctness of any guidelines calculation by this pre-sentence report? [00:02:28] Speaker 00: even if those calculations differed from the estimated guidelines range in the plea agreement. [00:02:37] Speaker 02: That's a different scenario from what they could object to relative to the plea agreement. [00:02:43] Speaker 02: The plea agreement, the parties have agreed that this is the framework, drug offense level plus the two points for the enhancement. [00:02:50] Speaker 02: Now, if the pre-sentence report writer came back with some other enhancements, then the parties could have disagreed and objected to those additional enhancements. [00:02:59] Speaker 02: But as to the enhancement of the 2D1.1B1, which was part of the plea agreement, [00:03:06] Speaker 02: the defense could not at that point object because it was part of the plea agreement. [00:03:11] Speaker 02: So, the pre-sentence report, if they came up with additional enhancements, that was something the defense reserved the right to object to, but that's not what happened here. [00:03:20] Speaker 02: It wasn't that the pre-sentence report just came up with an additional enhancement. [00:03:24] Speaker 02: The enhancement was part of the plea agreement, and so that's the issue here because that enhancement did not apply. [00:03:37] Speaker 00: The commentary for the guidelines in lots of cases in this and other works talk about the fact that guns and drugs go together. [00:03:46] Speaker 00: And that's in fact the reason why the enhancement is in the guidelines. [00:03:53] Speaker 00: So it seems to me that for you to prevail on your deficiency argument, [00:04:04] Speaker 00: You have to show that in this case, it was completely unreasonable for his lawyer to agree that drugs and guns could go together in this case. [00:04:23] Speaker 02: Excuse me. [00:04:25] Speaker 02: The circuit has found that there needs to be a nexus between the guns and the drugs. [00:04:31] Speaker 02: In the case of US versus Miller, 890 F3rd, 317, DC Circuit case of 2019. [00:04:39] Speaker 02: And here we have no nexus between the guns and the drug conspiracy. [00:04:44] Speaker 02: What we have here, the statement of facts points out. [00:04:49] Speaker 02: basically puts out what the facts are in this case. [00:04:52] Speaker 02: On January 19th, we have Mr. Floyd and his brother traveling from the United States down to St. [00:04:57] Speaker 02: Thomas. [00:04:57] Speaker 02: The next day, January 20th of 2021, Mr. Floyd and his brother go to the post office in St. [00:05:04] Speaker 02: Thomas and they seek to mail two packages of the cocaine, the drugs from St. [00:05:09] Speaker 02: Thomas. [00:05:11] Speaker 02: The packages are intercepted by law enforcement. [00:05:16] Speaker 02: Ultimately, there's a controlled delivery of these drugs on January 29th, 2021 to an address in Bladensburg Road, DC. [00:05:24] Speaker 02: The brother of Mr. Floyd is present. [00:05:26] Speaker 02: He receives the drugs. [00:05:27] Speaker 02: He's arrested. [00:05:28] Speaker 02: A month and a half later, on March 12th, is when Mr. Floyd then seeks to send the two weapons, which are [00:05:35] Speaker 02: part of this 2D 1.1B1 enhancement, but not back to St. [00:05:40] Speaker 02: Thomas. [00:05:40] Speaker 02: He's trying to send them to St. [00:05:42] Speaker 02: Martin. [00:05:43] Speaker 02: So you've got this one and a half month time period, but regardless from when the drugs were being sent from St. [00:05:50] Speaker 02: Thomas to the United States, but even if it was the next day, there's no nexus here in the statement of facts. [00:05:57] Speaker 02: that were presented to the court or at any point in any of the arguments in the plea hearing or the transcript that tied those guns that Mr. Floyd tried to send to St. [00:06:07] Speaker 02: Martin to the drugs. [00:06:10] Speaker 02: The plea paperwork and the statement of facts then goes on to jumps to October 7th, some six, seven months later. [00:06:18] Speaker 02: which a wiretap is requested by law enforcement of Mr. Floyd's phone for a 30-day period. [00:06:26] Speaker 02: Based on that, it's determined that Mr. Floyd is still selling drugs. [00:06:30] Speaker 02: Then there's a search warrant on November 10th, and then he's arrested. [00:06:33] Speaker 02: But those guns that he tries to ship on March 12th [00:06:37] Speaker 02: I mean, there's no connection whatsoever. [00:06:40] Speaker 00: But there's guns that are found when they arrest him, right, at his residence or a residence that he's connected to. [00:06:50] Speaker 02: There is a gun that's found at the residence that he's connected to. [00:06:54] Speaker 02: He's not arrested there. [00:06:55] Speaker 02: So the question is whether there's constructive possession. [00:06:59] Speaker 01: What's interesting, though, is- And the guns are next to scales and a bunch of other drug paraphernalia. [00:07:06] Speaker 02: Correct. [00:07:07] Speaker 02: But what's interesting about that gun and this pleahee is the government was very specific in their statement of facts as to what gun applied to the 2D1.1B enhancement. [00:07:18] Speaker 02: And although they mention in the section, which is section number one for the drug conspiracy, that weapon that's found at that other location, they never mention it in the section for the 2D1.1B one. [00:07:30] Speaker 02: And I have to think, well, why is that? [00:07:34] Speaker 00: I believe that- Is there a requirement that they, some sort of specificity requirement that they mention a particular gun as a basis for that enhancement in the plea agreement or indictment or? [00:07:57] Speaker 02: Yes, Your Honor, I believe there should be, because how else can one, how can the court then ascertain whether or not the enhancement applies? [00:08:03] Speaker 00: I understand you say there should be, but what authority is there that there is such a requirement? [00:08:11] Speaker 02: Well, I believe the guidelines require there to be, I mean, for this to come into play, how would one be able to bring it into play if one just [00:08:23] Speaker 00: I mean, that sentencing, you know, as you're well aware, the government brings up all sorts of things, some things that aren't charged, some things that aren't even in the statement of offense at all. [00:08:38] Speaker 00: Right. [00:08:38] Speaker 00: And they can be used to [00:08:44] Speaker 00: you know, as part of the guidelines calculation. [00:08:47] Speaker 00: We've never, at least I'm not aware of a case where we've said that you can't do that because that wasn't set forth at the time of the plea. [00:08:57] Speaker 02: Certainly. [00:08:58] Speaker 02: But I would say in this particular case, because they were so specific as to which gun applied that the government at the trial level didn't feel that they had enough evidence as well to tie that other gun in that residence. [00:09:11] Speaker 02: Although they indicate that Mr. Floyd was connected to that residence, [00:09:17] Speaker 02: They don't indicate that his name was on the lease, which would mean that there were other people connected to that residence. [00:09:23] Speaker 02: There's nothing in the plea agreement in which it's definitive that Mr Floyd agreed that he possessed that weapon. [00:09:30] Speaker 02: So I believe the government had several hurdles. [00:09:32] Speaker 02: There was no DNA evidence in the record that tied him to that gun. [00:09:35] Speaker 02: There was no fingerprint evidence that tied him to that gun. [00:09:38] Speaker 02: So I believe in the record, the government felt that they had an issue being able to put that forth as an enhancement, which [00:09:44] Speaker 02: And therefore, they never brought it forth to argue that that would have been another enhancement that they could have presented in support. [00:09:53] Speaker 01: He gave up a litigable issue on the enhancement. [00:09:58] Speaker 01: In return for that, he got all sorts of benefits. [00:10:01] Speaker 01: They didn't prosecute on the ghost gun. [00:10:03] Speaker 01: They didn't seek the mandatory minimum of 10 years. [00:10:07] Speaker 01: They didn't prosecute him for being a felon in possession. [00:10:10] Speaker 01: Sounds like a pretty good deal. [00:10:14] Speaker 02: I mean, he was charged in one count for the government to have broad additional counts that would have required more work and for the government might have been just as happy to try to negotiate this so they wouldn't have to do that additional work. [00:10:31] Speaker 00: All right, we'll give you some time on rebuttal. [00:10:33] Speaker 02: Thank you. [00:10:46] Speaker 03: Morning, Your Honor. [00:10:47] Speaker 03: May it please the court? [00:10:48] Speaker 03: Katherine Kelly on behalf of the United States. [00:10:51] Speaker 03: Your Honor, I would like to point out just in addition to the points the court had made linking the gun as a proper reason for the gun enhancement in this case, there was also in this situation, Mr. Floyd has shown no prejudice that would show that his counsel was ineffective. [00:11:10] Speaker 03: As the court had just pointed out, the plea agreement freed him from numerous other potential convictions. [00:11:20] Speaker 03: He had the potential without the plea agreement to be sentenced to a mandatory minimum of 10 years rather than the mandatory minimum of five years that was placed in the plea agreement terms. [00:11:32] Speaker 03: He received three points for the early acceptance of responsibility by pleading guilty. [00:11:39] Speaker 03: It freed him also from prosecution separately under 922G for the gun he used at the Maryland firing range during the conspiracy. [00:11:48] Speaker 03: The guns he mailed to St. [00:11:51] Speaker 03: Martin as he possessed them in the District of Columbia while he was mailing them on March 12th. [00:11:56] Speaker 00: Why did the government indict those in the first place if this was such a [00:12:03] Speaker 00: big deal. [00:12:03] Speaker 00: I mean, he didn't have to negotiate anything away with respect to that because the government didn't indict it in the first place. [00:12:10] Speaker 03: The government in regard to the guns specifically sent to St. [00:12:14] Speaker 03: Martin? [00:12:15] Speaker 03: Yeah. [00:12:15] Speaker 03: Your honor. [00:12:16] Speaker 03: Well, the government certainly could have charged that as a separate 922-G offense. [00:12:21] Speaker 03: As during the plea bargaining, they chose not to, and they also could have charged the Glock that was found in the W Street apartment. [00:12:29] Speaker 00: I understand that, but [00:12:34] Speaker 00: Well, there's two aspects of this. [00:12:36] Speaker 00: The first aspect is that you say that there's no prejudice because all of those things could have been charged, but the government could have charged those all along, and they never did. [00:12:51] Speaker 00: The case was pending for over a year before the plea agreement was reached, if I remember correctly. [00:13:00] Speaker 03: It had been pending your honor, but my understanding of the plea negotiations is that those were also ongoing over the over the course of time, and I believe he had three attorneys. [00:13:10] Speaker 03: So this was something that was ongoing, but there is no reason why the government couldn't have charged those. [00:13:16] Speaker 03: And particularly in regard to what defense counsel said about the [00:13:20] Speaker 03: gun at the W Street apartment. [00:13:23] Speaker 03: There are strong links of Mr Floyd to that apartment. [00:13:27] Speaker 03: Number one, he rented that apartment. [00:13:30] Speaker 03: He also visited almost daily before going to his mother's house where he dealt and distributed drugs. [00:13:36] Speaker 03: Mr Floyd's passport was found there along with, I believe, a digital scale. [00:13:42] Speaker 03: $28,500 and the Glock 9-millimeter gun, which was loaded. [00:13:49] Speaker 03: So there are very strong ties to the W Street apartment and Mr. Floyd and drug dealing. [00:13:57] Speaker 03: That's at pages 64 and 65 of the public record in this case. [00:14:03] Speaker 00: Let me ask you about how we're supposed to view prejudice. [00:14:09] Speaker 00: Why isn't prejudice [00:14:12] Speaker 00: prism, the prism of sentencing, as opposed to what he could have been charged with had the plea agreement not gone forward. [00:14:24] Speaker 00: I mean, his claim is that this one specific sentencing enhancement shouldn't have been agreed to, and if it hadn't have been, then he would have started with a different [00:14:39] Speaker 00: guidelines range, which presumptively would have benefited him because that would be kind of the starting point, so to speak, in sentencing. [00:14:52] Speaker 00: So why isn't that the correct prism to look at the prejudice? [00:14:59] Speaker 03: Because when you're looking at a defendant who has claimed that the prejudices arising from his attorney's allegedly deficient performance during plea negotiations, the remedy for any potential deficient performance by his counsel is not simply just to take away a plea provision or rather a sentencing provision that he doesn't like. [00:15:22] Speaker 03: You don't take away a term of the plea agreement. [00:15:27] Speaker 03: have to look at the prejudice standard that applies in that situation, which is whether or not, but for counsel's allegedly deficient performance, the defendant would have, there's a reasonable probability that Mr. Floyd would not have pleaded guilty and would have insisted on going to trial. [00:15:44] Speaker 03: And Mr. Floyd has not met that burden here at all. [00:15:48] Speaker 03: In fact, he has not asserted, in fact, has been insistent that he wanted to enter his plea agreement. [00:15:54] Speaker 03: And in fact, he wanted to keep his plea agreement even when he was complaining about the gun enhancement at the hearing right before his sentencing. [00:16:06] Speaker 03: So for those reasons, he has not ever met the standard that actually applies to alleged deficiency during plea negotiations. [00:16:16] Speaker 03: And again, going to the prejudice, the court has been clear in United States versus Scanlon that neither this court nor the district court can modify or amend a plea agreement. [00:16:27] Speaker 03: So what Mr. Floyd is really asking for here is for this court to remove the gun enhancement sentencing provision that he now doesn't like in his plea agreement. [00:16:39] Speaker 03: That's just not a possibility. [00:16:41] Speaker 03: That remedy is just simply inappropriate. [00:16:44] Speaker 03: And again, when you look at the prejudice, the facts don't support prejudice, even if you used Mr. Floyd's inaccurate prejudice analysis. [00:16:57] Speaker 00: So let me ask you this. [00:16:59] Speaker 00: Suppose a defense lawyer agrees in a plea agreement to a sentencing enhancement that is [00:17:14] Speaker 00: when we look at it now was just patently not applicable. [00:17:23] Speaker 00: Assume that fact for the hypothetical. [00:17:28] Speaker 00: Are you saying that on review, the question is whether had the lawyer properly advised [00:17:42] Speaker 00: the defendant and not agreed to that. [00:17:49] Speaker 00: The question is whether the defendant had had the defendant known that would have gone to trial. [00:17:58] Speaker 03: Yes, we believe that is the standard. [00:18:02] Speaker 00: So why is that the standard in a situation where [00:18:12] Speaker 00: A reasonably competent lawyer would never have agreed to that enhancement because it doesn't apply. [00:18:22] Speaker 00: We would find that to be deficient performance. [00:18:29] Speaker 00: And wouldn't we say, well, we can't say that there was no prejudice because the government might agree to a plea agreement without this illegal enhancement, even if the defendant didn't really want to go to trial. [00:18:52] Speaker 00: The government didn't want to go to trial either. [00:18:54] Speaker 00: That's why they ended into a plea agreement. [00:18:59] Speaker 03: Well, I think another way that that prejudice standard has been put is that the remedy for an unknowing and involuntary plea agreement would be to permit the defendant to withdraw his guilty plea and return the parties to the negotiating table. [00:19:16] Speaker 03: So stated that way, the point really is to unwind the plea agreement. [00:19:21] Speaker 03: If there's a problem with the plea agreement, that doesn't necessarily mean that the government then absolutely has to take them to trial. [00:19:28] Speaker 03: If there's a way to negotiate another plea agreement that's favorable to both sides, the parties are still available to do that. [00:19:34] Speaker 00: But that's precisely my point. [00:19:37] Speaker 00: So why then isn't that really the prism that we're looking at and not necessarily that there has to be a showing that the defendant intended to or would go to trial if the plea agreement were unwell? [00:19:57] Speaker 03: I think that either wording can be used. [00:20:00] Speaker 03: I believe I've seen that in different cases, that the wording can be used in that regard as well. [00:20:07] Speaker 03: There is a point, though, that we pointed out in the Laffer versus Cooper cases that the remedy has to neutralize the taint of whatever constitutional violation is at play, but it can't grant a windfall to the defendant. [00:20:19] Speaker 03: And what the defendant is asking for here is just to simply have this court remove what he now sees as an objectionable part of his plea agreement. [00:20:28] Speaker 03: and then continue on to sentencing as if that provision didn't become part of the plea agreement in the first place. [00:20:35] Speaker 03: And that's the part that we think is inappropriate. [00:20:38] Speaker 03: What could have been done in this case is that the government could have substituted the gun found at W Street for the gun's mail to St. [00:20:47] Speaker 03: Martin if that became too objectionable in future plea negotiations. [00:20:53] Speaker 03: Because it sounds like Mr. Floyd, from what he told the court just before his sentencing hearings, he did want to keep the plea agreement. [00:21:01] Speaker 03: But our point is you can't just simply excise part of the plea agreement that you don't like because that is a windfall to the defendant. [00:21:08] Speaker 03: All the terms of the plea agreement have to be renegotiated. [00:21:12] Speaker 03: It can't just be a matter of picking and choosing at the time of sentencing, which provisions of the plea agreement that you fairly negotiated, mind you, with counsel that the district court found to be effective and found to have well represented Mr. Floyd in this case. [00:21:26] Speaker 03: So particularly here where the district court has heard from Mr. Floyd and his counsel, we think it would be particularly inappropriate to simply excise that term of the plea agreement that he now disagrees with. [00:21:41] Speaker 00: So thank you. [00:21:43] Speaker 03: Thank you, Your Honor. [00:21:49] Speaker 00: This motto will give you two minutes for rebuttal. [00:21:52] Speaker 02: Thank you. [00:21:54] Speaker 02: And I wanted to point out that this isn't a case where Mr. Floyd is trying to receive some type of a windfall. [00:22:00] Speaker 02: During the plea hearing, he actually brought up to the court when the parties put on the record what the plea agreement was. [00:22:07] Speaker 02: And the parties put on the record the drug offense as well as the 2D1.1B1 enhancement. [00:22:13] Speaker 02: And when he was asked about those guidelines, he lodged an objection and said he didn't agree with those, that they were incorrect. [00:22:20] Speaker 02: And we know that he didn't really understand or wasn't given full clarity relative to the guidelines because then later on in the plea hearing, the judge asked him if he had spoken with his counsel about sentencing and how the sentencing worked and he said no. [00:22:37] Speaker 02: And then a recess was taken. [00:22:38] Speaker 02: Unfortunately, the issue wasn't cured at that point because the judge didn't come back then and ask him specifically, have your issues with the guideline points been resolved? [00:22:49] Speaker 02: And also to clarify what those issues were. [00:22:51] Speaker 02: So Mr. Floyd sought at that point to lodge an objection to the guidelines. [00:22:59] Speaker 02: Basically, it didn't go anywhere. [00:23:01] Speaker 02: It wasn't cured. [00:23:02] Speaker 02: And then at sentencing, after he then had the time further to review the pre-sentence report and see most definitely that those guidelines were there and the enhancement was there, then he brought up the whole ineffective assistance claim and went from there. [00:23:16] Speaker 00: So... Suppose we were to agree with you. [00:23:18] Speaker 00: What is the remedy you think that we should... [00:23:21] Speaker 02: um give you uh well i mean of course mr floyd is asking for uh sentencing resentencing without the enhancement um that's what authority is there for that remedy well looking at the u.s versus thomas case and in this before this circuit um in which this court did specifically um find that um [00:23:47] Speaker 02: excuse me, that if a defendant can show a reasonable probability that the end result of the criminal process would have been more favorable by reasonable plea to a lesser charge or a sentence of less prison time, that he is satisfied that prejudicial prong. [00:24:02] Speaker 02: I mean, we know that he... [00:24:04] Speaker 02: In terms of the plea, he didn't want to plead with those two points. [00:24:08] Speaker 02: We don't have on the record, though, whether if it's a question of either this plea or going to trial, which he would have chosen. [00:24:15] Speaker 02: That's not in the record. [00:24:17] Speaker 02: We just know that he was seeking a plea without these two points. [00:24:21] Speaker 02: And so his remedy ultimately is to be resentenced without. [00:24:27] Speaker 01: All of the benefits of your bargain with none of the corresponding burdens [00:24:34] Speaker 02: Well, again, I mean, he had brought the issue up to the court during the plea hearing. [00:24:39] Speaker 02: It wasn't cured. [00:24:40] Speaker 02: And I guess that's where we're at at this point. [00:24:46] Speaker 02: Thank you. [00:24:46] Speaker 02: Thank you. [00:24:48] Speaker 00: Ms. [00:24:48] Speaker 00: Amado, you were appointed by the court to represent Mr. Floyd in this case, and the court thanks you for your assistance. [00:24:57] Speaker 02: Thank you, Your Honor. [00:24:58] Speaker 00: The case is submitted.