UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

MCCOY, MICHAEL


99-3088a

D.C. Cir. 2000


*	*	*


Ginsburg, Circuit Judge: Michael McCoy pleaded guilty to  conspiring to
distribute and to possess with intent to distrib- ute cocaine base.
Prior to sentencing, however, McCoy  moved to withdraw his plea. The
district court denied the  motion and sentenced McCoy to 262 months in
prison, to be  followed by five years of supervised release. Upon
appeal  McCoy contends that the district court abused its discretion 
by denying his request to withdraw his plea.


We find McCoy's plea was not voluntary, and he has  presented legally
cognizable defenses to the charges against  him. In addition, the
Government has conceded that its  ability to prosecute him has not
been prejudiced. We hold  that in these circumstances the district
court abused its  discretion by denying McCoy's motion to withdraw his
plea of  guilty.


I. Background


The grand jury indicted McCoy on one count of conspiracy  to distribute
and to possess with intent to distribute 50 grams  or more of cocaine
base, in violation of 21 U.S.C. s 846, and  on one count of
distribution of five grams or more of cocaine  base, in violation of
21 U.S.C. ss 841 (a)(1) & (b)(1)(B)(iii).  McCoy and his co-defendant,
Bernard Sanders Jr., soon  began to negotiate a plea agreement with
the Government,  which made the following proposal: McCoy would (1)
plead  guilty to the conspiracy charge; (2) be held accountable for 
between 150 and 500 grams of cocaine base; and (3) be  sentenced in
accordance with the United States Sentencing  Guidelines. The
Government also informed McCoy that if he  chose to proceed to trial,
then the Government intended to  file an information pursuant to 21
U.S.C. s 851 regarding his  previous two felony drug convictions and


convicted after trial, he would be sentenced as a career  offender to a
mandatory term of life imprisonment. After  further negotiations with
the Government yielded no better  terms, McCoy signed an agreement
substantially identical to  the Government's original proposal.


Before McCoy agreed to plead guilty, his counsel had  determined that
he would face from 188 to 235 months in  prison if he accepted the
Government's offer. Counsel had  arrived at that conclusion by
consulting the drug quantity  table in U.S.S.G. s 2D1.1(c)(3) and
determining that McCoy's  base offense level would be 34; after a
three point reduction  to reflect McCoy's acceptance of
responsibility, see U.S.S.G.  s 3E1.1(a) & (b), his total offense
level would be 31. Al- though the matter is not entirely clear from
the record,  counsel apparently had understood that under s 4B1.1 of
the  Guidelines McCoy would be treated as a "career offender"  and
therefore assigned a criminal history category of VI. See  U.S.S.G. s
4B1.1. Quite clearly, however, counsel did not  realize that s 4B1.1
also enhances the base offense level of a  career offender; because
McCoy would be pleading guilty to  a crime for which the maximum
penalty is life imprisonment,  see 21 U.S.C. ss 841(b)(1)(A)(iii) &
846, his base offense level  would be 37 rather than 34. See U.S.S.G.
s 4B1.1. McCoy's  sentence would therefore be in the range of 262 to
327  months of imprisonment, not the 188 to 235 months predicted  by
McCoy's counsel. See U.S.S.G. Ch. 5, Pt. A (table). The 
miscalculation committed by McCoy's counsel had been rein- forced when
the prosecutor, in response to an inquiry from  counsel for McCoy,
likewise had estimated the applicable  sentencing range at 188 to 235


At a hearing held for the purpose of accepting McCoy's  plea, the court
informed McCoy of the minimum statutory  penalty he faced but not of
the maximum statutory penalty,  nor of the applicable sentencing range
under the Guidelines.  At the same proceeding the Government claimed
that if  McCoy went to trial, it could prove the following facts:


On July 9, 1998 Sanders arranged to sell 62 grams of  cocaine base to
an undercover agent of the Drug En-


forcement Agency. That same evening McCoy met the  undercover agent,
told him he did not have the full 62  grams, and sold him 44.5 grams
of cocaine base. McCoy  also gave the agent a pager number to be used
to  arrange future transactions. Several months later a  confidential
informant for the DEA contacted Sanders to  purchase 125 grams of
cocaine base. Sanders agreed to  meet the informant at a shopping mall
in Maryland on  October 6, 1998; he arrived at the appointed time in a
 car driven by McCoy. Upon meeting the informant,  however, Sanders
was uneasy and he canceled the sale  and left with McCoy. The police
followed Sanders and  McCoy for a few miles and then arrested them.
Prior to  being stopped, Sanders threw from the car a bag contain- ing
119.6 grams of cocaine base.


McCoy admitted the Government's account was true and  accurate and he
accepted responsibility for between 150 and  500 grams of cocaine
base. The court then accepted his plea.


It was not until after the plea hearing, when McCoy  received the
presentence report, that he discovered he was  facing a higher
sentencing range than his attorney and the  prosecutor had previously
indicated. After realizing his mis- take but still prior to
sentencing, McCoy filed a motion to  withdraw his plea of guilty. He
argued that an "important  element of [his] willingness to plead
guilty was based on [his]  counsel's, along with the attorney for the
government's, calcu- lation of [his] total sentence." Although he
remained willing  to plead to a charge with a possible sentence of
from 188 to  235 months in prison, he stated that "in deliberating
over the  issue of whether to forego a trial or enter into a plea 
agreement, he did not contemplate the fact that he would be 
submitting himself to a sentence with a minimum imposition  of 22
years and a maximum sentence of 27-1/2 years."  Because he had
misunderstood the applicable sentencing  range when he entered his
plea, McCoy argued, his plea had  been involuntary and hence
unconstitutional. The Govern- ment opposed the motion upon the grounds
that McCoy's plea  had not been involuntary and that he had not


Government conceded, however, that the passage of time  since McCoy
pleaded guilty had not "in any way prejudiced  its case."


In response, McCoy asserted his innocence and argued that  he had done
so throughout the negotiations over the plea  agreement. McCoy
specifically noted that he had filed a  motion challenging the
undercover agent's identification of  him as the seller in the
transaction that took place on July 9,  based in part upon evidence
that other officers at the scene  had indicated in their surveillance
notes that the seller was a  "white male," whereas McCoy is a black
male. (At the  sentencing hearing the prosecutor conceded that McCoy
had  consistently claimed he was unaware, when he drove Sanders  to
the shopping mall, that Sanders intended to sell drugs;  according to
McCoy, it was not until they left the mall that he  "was aware that a
transaction either had been planned or that  that was the purpose of


The district court denied McCoy's motion to withdraw his  plea. The
court discounted McCoy's claim of innocence be- cause, when the court
had accepted his plea, McCoy had  admitted that the Government's
allegations were true and  gave as one of his reasons for pleading
guilty that he had  committed the crime charged. After acknowledging
the Gov- ernment's concession that it would not be prejudiced by 
proceeding to trial, the court also rejected McCoy's argument  that he
would not have pleaded guilty if he had known the  actual sentencing
range to which he was exposed. The court  discounted McCoy's claimed
reliance upon the range his  attorney had told him would apply if he
pleaded guilty  because McCoy's plea agreement explicitly stated that
he had  not been promised a specific sentence and McCoy stated  when
pleading guilty that he had not been made any promise  outside of the
plea agreement. Additionally, the court noted  that in his motion to
withdraw McCoy had characterized his  counsel's representations about
his sentencing range as "ap- proximate." Therefore, the court
concluded that McCoy's  plea had not been contingent upon a specific
sentencing  range, denied his motion to withdraw the plea, and


him to 262 months of imprisonment, to be followed by five  years of
supervised release.


II. Analysis


McCoy argues upon appeal that the district court abused  its discretion
by denying his motion to withdraw his plea:  "Withdrawal of a guilty
plea prior to sentencing is to be  liberally granted, and permitted
for 'any fair and just rea- son.' " United States v. Taylor, 139 F.3d
924, 929 (D.C. Cir.  1998) (quoting Fed.R.Crim.P. 32(e)). In reviewing
the dis- trict court's denial of a motion to withdraw we focus upon 
three factors: "(1) whether the defendant has asserted a  viable claim
of innocence; (2) whether the delay between the  guilty plea and the
motion to withdraw has substantially  prejudiced the government's
ability to prosecute the case;  and (3) whether the guilty plea was
somehow tainted." Id.  Because the Government concedes the second
factor, we  confine our analysis to the remaining two.


A. Legally Cognizable Defense


A defendant seeking to withdraw his plea of guilty "gener- ally must
make out a legally cognizable defense to the charge  against him."
United States v. Cray, 47 F.3d 1203, 1207  (D.C. Cir. 1995). The
defendant's "general denial" is not  enough; he must "affirmatively
advance an objectively rea- sonable argument that he is innocent, for
he has waived his  right to try his luck before a jury." Id.


McCoy has adequately presented cognizable defenses to  the charges
against him. As recounted above, the grand jury  indicted McCoy on two
counts: (1) conspiracy to distribute  and to possess with intent to
distribute 50 grams or more of  cocaine base; and (2) distribution of
5 grams or more of  cocaine base. The latter charge is based upon the
alleged  sale of 44.5 grams of cocaine base on July 9, 1998; the 
conspiracy charge is premised upon both the July sale and  the failed
sale of 119.6 grams of cocaine base in October 1998.


As for the July sale, McCoy has consistently argued that  the police
mistakenly identified him as the seller. This 


defense, if accepted by the jury, obviously would preclude  conviction
upon the charge of distribution and would eliminate  part of the basis
for the charge of conspiracy.


As for the failed transaction of October 6, McCoy maintains  that he
did not know Sanders intended to sell cocaine base  and that he did
not realize "something was not proper" until  the police stopped his
vehicle. To convict McCoy of conspira- cy under 21 U.S.C. s 846 the
Government must prove he had  "the specific intent to further the
common unlawful objective"  of the conspiracy. United States v.
Childress, 58 F.3d 693,  707-08 (D.C. Cir. 1995). McCoy's claim that
he did not know  Sanders intended to sell cocaine base on October 6
amounts  to an assertion that he lacked the requisite intent to
conspire  with Sanders. If a jury was to conclude the Government has 
not proved beyond a reasonable doubt that McCoy did partici- pate in
the sale on July 9, and to accept his claim that he  lacked specific
intent to conspire with Sanders on October 6,  McCoy could not be
convicted of the charge of conspiracy.  Accordingly, we hold that
McCoy has presented a legally  cognizable defense to each of the


B. Involuntariness of the Plea


Prior to sentencing the "standard for allowing withdrawal  of a plea is
fairly lenient when the defendant can show that  the plea was entered
unconstitutionally." Taylor, 139 F.3d at  929; see Cray, 47 F.3d at
1207. McCoy contends that his  plea was entered unconstitutionally
because it was based  upon legal assistance so defective as to deprive
him of his  constitutional right to assistance of counsel. A plea of
guilty  is constitutionally valid if and only if it "represents a
volun- tary and intelligent choice among the alternative courses of 
action open to the defendant." Hill v. Lockhart, 474 U.S. 52,  56
(1985); see United States v. Loughery, 908 F.2d 1014, 1019  (D.C. Cir.
1990). A plea based upon advice of counsel that  "falls below the
level of reasonable competence such that the  defendant does not
receive effective assistance," Loughery,  908 F.2d at 1019, is neither
voluntary nor intelligent. See  Taylor, 139 F.3d at 929.


In order to show that his plea was based upon constitution- ally
deficient assistance of counsel, the defendant must "ordi- narily
satisfy the two-pronged standard of Strickland v.  Washington, 466
U.S. 668, 687 (1984)." Id. He must show:  (1) "that his counsel's
performance 'fell below an objective  standard of reasonableness' by
identifying specific 'acts or  omissions of counsel that are alleged
not to have been the  result of reasonable professional judgment' ";
and (2) " 'that  there is a reasonable probability that, but for
counsel's errors,  he would not have pleaded guilty and would have
insisted on  going to trial.' " Id. 929-30. In this context, a
"reasonable  probability" is one "sufficient to undermine confidence"
in the  defendant's decision to plead guilty. Strickland, 466 U.S. at 


Usually a claim of "ineffective assistance of counsel ...  require[s]
an evidentiary hearing"; indeed, where the defen- dant did not raise
the claim before the district court, our  standard practice is to
remand for such a hearing. United  States v. Gaviria, 116 F.3d 1498,
1513 (D.C. Cir. 1997). In  this case, however, "the record is so clear
that remand is  unnecessary," United States v. Soto, 132 F.3d 56, 59
(D.C.  Cir. 1997); this court can confidently resolve McCoy's claim 
in the first instance.


McCoy contends that his counsel's performance "fell below  an objective
standard of reasonableness" because she failed  correctly to apply the
career offender provisions of the Guide- lines when determining the
sentencing range McCoy would  face if he accepted the Government's
plea agreement. His  claim finds ample support in precedent. In
Gaviria one  defendant had refused to plead guilty to the charge of
con- spiracy to distribute narcotics because his counsel had in-
formed him that he would be treated as a career offender  under the
Guidelines and be subject to a sentence of from 360  months to life in
prison. See 116 F.3d at 1512. Almost a  year earlier, however, we had
held in United States v. Price,  990 F.2d 1367, 1370 (1993), that a
conspiracy conviction did  not count as a predicate crime for purposes
of the career  offender provisions of the Guidelines. Because the
defen- dant's counsel failed to realize that Price precluded treating


the defendant as a career offender, we held counsel's perfor- mance was
constitutionally deficient. See id.


The mistake McCoy's counsel made was even more egre- gious than that
made in Gaviria. Whereas counsel in Gavi- ria had failed to find and
apply a case interpreting the  Guidelines, McCoy's counsel failed to
follow the formula  specified on the face of the Guidelines. Of course
not every  error made in applying the Guidelines amounts to deficient 
performance under the standard of Strickland but, as a sister  circuit
pointed out some years ago in a case very similar to  this,
"familiarity with the structure and basic content of the  Guidelines
(including the definition and implications of career  offender status)
has become a necessity for counsel who seek  to give effective
representation." United States v. Day, 969  F.2d 39, 43 (3d Cir.
1992). We therefore hold that McCoy  has demonstrated that his
counsel's performance was consti- tutionally deficient.


McCoy has also satisfied the second part of the Strickland  test: He
has shown a "reasonable probability" that but for his  counsel's
mistake he would not have pleaded guilty. Counsel  told McCoy that by
accepting the plea he would get a prison  sentence in the range from
188 to 235 months; in fact, he  faced a range of 262 to 327 months.
The difference between  counsel's predicted range and McCoy's actual
range--more  than six years between the respective low ends and almost
 eight years between the respective high ends--is significant.


The Government argues, however, that McCoy probably  would have pleaded
guilty even if he had known the actual  sentencing range he faced: he
was never promised a specific  sentence prior to entering his plea,
and he was facing a  mandatory life sentence if convicted after trial.
But, as has  been pointed out before, a "defendant's understanding of
the  maximum penalties he will face if he enters a guilty plea may  be
of critical importance to the ... decision to accept the  Government's
offer rather than assume the risks of a trial."  United States v.
Horne, 987 F.2d 833, 840 (1993) (Buckley, J.  concurring). Although
McCoy was never promised a specific  sentence if he pleaded guilty, it
is undisputed that both his 


own attorney and the prosecutor in this case told him that the 
applicable sentencing range would be from 188 to 235 months  and he
credibly argues that he relied--understandably, we  might add--upon
that information. To be sure, McCoy has  not proven he would have gone
to trial had his (or the  Government's) counsel not given him
incorrect information,  but he has demonstrated a "reasonable
probability" that he  would have done so.


We conclude that McCoy's decision to plead guilty was not  "a voluntary
and intelligent choice among the alternative  courses of action open
to [him]." We therefore hold that his  conviction is
unconstitutional.


III. Conclusion


For the foregoing reasons, we remand this case to the  district court
with instructions to grant McCoy's motion to  withdraw his plea of
guilty.


It is so ordered.


Karen LeCraft Henderson, Circuit Judge, concurring:


I agree with the majority that the appellant has satisfied  the second
prong of the Strickland v. Washington prejudice  test, but only
barely. It seems unlikely, given the evidence  against him, the
appellant would actually have chosen to risk  trial and mandatory life
imprisonment rather than add 27  months to the 235 months he had
already agreed to serve.  Nevertheless, the Strickland test requires
only a reasonable  probability. Because the appellant has met this
standard, I  concur in the majority opinion.