Appeal from the United States District Court for the District of Columbia (No. 92cr00196-02)
Before: Silberman, Henderson and Tatel, Circuit Judges.
Karen LeCraft Henderson, Circuit Judge
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the court filed by Circuit Judge Henderson.
Appellant Paul Williams, Jr. filed a habeas petition to modify his sentence, arguing that his counsel rendered ineffective assistance by failing to move for a one-level reduction to his base offense level pursuant to section 3E1.1(b)(2) of the United States Sentencing Guidelines (guidelines). Section 3E1.1(b)(2) rewards a defendant who "timely notif[ies] authorities of his intention to enter a plea of guilty." The district court denied the petition and we affirm.
On April 9, 1992 Williams was arrested on a charge of armed bank robbery. At his detention hearing the following day the district court put him on work release and ordered him to stay at a local halfway house. That same day the government sought his cooperation in the prosecution of his co-defendant in exchange for a favorable plea arrangement, "something substantially less than an armed bank robbery." Joint Appendix (JA) 25-26. Williams declined the offer. On May 7 Williams and his co-defendant were indicted and charged with armed bank robbery. At arraignment Williams pleaded not guilty. During a June 12 discovery conference the government tendered a formal plea offer: Williams could plead guilty to the lesser-included offense of unarmed bank robbery in exchange for his cooperation. Williams declined the offer and on June 15 the court scheduled his trial for September 29, 1992. On June 19 Williams absconded from the halfway house. JA 29. He was apprehended on June 25 and the next day the court ordered him held without bond pending trial.
On September 8 Williams told his counsel he wanted to change his plea because his co-defendant had decided to plead guilty. That same day his counsel informed the prosecutor that Williams had authorized him to negotiate a plea agreement and the prosecutor offered to let Williams plead guilty to one count of unarmed bank robbery. JA 55. Williams accepted the offer between September 8 and September 23. The court accepted his plea at a hearing on October 5. On January 22, 1993 he was sentenced. Pursuant to section 3E1.1(a), the court reduced his base offense level by two levels for his acceptance of responsibility and sentenced him to 63 months (within the guideline range of 51-63 months). Williams appealed neither his conviction nor his sentence.
Eighteen months later Williams filed a 28 U.S.C. Section(s) 2255 petition to modify his sentence. He argued that his counsel rendered ineffective assistance by failing to request an additional one-level reduction pursuant to subsection (b)(2) of section 3E1.1, a reduction to which, he alleged, he was entitled by having "timely notif[ied] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently." USSG Section(s) 3E1.1(b)(2). The district court denied the petition without a hearing. On appeal we remanded with these instructions:
On remand the court should make factual findings regarding when appellant or his counsel first notified the government of appellant's desire to enter a guilty plea, and whether such notice was sufficiently timely and unequivocal that it relieved the government of the burden to prepare for trial. The district court should further determine whether, in light of the facts found, it would have granted appellant the additional one-point reduction provided by U.S.S.G. Section(s) 3E1.1(b)(2) had his counsel raised it at sentencing. Finally, the district court should reconsider appellant's motion filed pursuant to 28 U.S.C. Section(s) 2255 in light of the aforementioned findings and conclusions.
United States v. Williams, No. 95-3004 (D.C. Cir. June 28, 1995). After a remand hearing, at which Williams's trial counsel was the only witness, the court held that Williams had not established ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984). The court concluded, inter alia, that Williams was not entitled to the additional one-level reduction under subsection (b)(2) because his decision to plead guilty was untimely and did not permit the court to allocate its resources efficiently. JA 174. We conclude that its determination was not clearly erroneous. See United States v. Morillo, 8 F.3d 864, 871 ...