United States of America v. Xavier Levar Smit

Atlanta, GA - Criminal defense lawyer represented defendant with a being a felon in possession of a firearm charge.

Smith's firearm conviction at issue was initially the subject of state

proceedings recounted below.

A. State Court Charges and Plea Negotiations

In June 2018, members of the Palm Beach County Sheriff's Office and

agents with the Drug Enforcement Administration executed a search warrant at

defendant Smith's apartment, where they found drugs, drug paraphernalia, and a

semi-automatic handgun that was reported stolen. Video and audio recordings and

DNA evidence linked Smith to the gun.

Initially, the State of Florida charged Smith with multiple drug-related

offenses and being a felon in possession of a firearm, in violation of Fla. Stat.

§ 790.23(1)(a), (c), (e), and (3). The state prosecutor, John Parnofiello, served in a

dual role as a Special Assistant United States Attorney, and a state public defender

represented Smith.

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The state offered Smith a plea deal for a three-year prison sentence, which

Smith rejected. Afterwards, two state charges were dropped because of negative

lab results. Then, in an October 1, 2018 email, Parnofiello (1) offered a plea deal

of a five-year prison sentence, (2) described Smith's offense conduct and the

state's evidence, and (3) listed Smith's three prior Florida felony convictions for

sale of cocaine. Although Smith's case was "currently filed with the State,”

Parnofiello advised Smith's counsel that the three cocaine convictions were

controlled substance offenses under the federal Sentencing Guidelines and would

increase Smith's base offense level under U.S.S.G. § 2K2.1. Parnofiello calculated

Smith's federal advisory guidelines range as 92 to 115 months' imprisonment "if

Mr. Smith was ONLY being charged with felon in possession of a firearm at the

federal level” and "if [Smith] were to plea immediately after indictment . . . .”

In an October 15, 2018 email to Smith's counsel, prosecutor Parnofiello

stated that "[u]pon further review,” he had determined that Smith "qualifie[d] as an

Armed Career Criminal . . . subjecting him to a 15 year federal minimum

mandatory sentence.” Parnofiello repeated the October 1 offer stating, "My offer

to resolve the case without taking the case federally is a 5 year DOC [state]

sentence.” Parnofiello warned that the plea offer expired at the close of business,

and he was "in the process of preparing the federal indictment information.” At

counsel's request, Parnofiello agreed to a one-week extension.

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That same day, Smith's counsel visited Smith at the jail and gave

Parnofiello's emails to Smith to read. Smith rejected the five-year plea deal.

B. Federal Charge and Motion to Dismiss

On November 13, 2018, a federal grand jury charged Smith with being a

felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e).1

The federal court appointed new counsel for Smith. Smith's federal

counsel moved to dismiss the indictment, contending Smith's state counsel, Perry

Thurston, rendered ineffective assistance during the state plea negotiations. Smith

admitted that Thurston showed him Parnofiello's emails containing the state's fiveyear plea offer. Smith claimed, however, that Thurston was unable to advise Smith

"about the federal sentencing guidelines,” whether "a plea to state charges

completely prevent[ed] a federal indictment for the same set of facts,” or if Smith

was "truly an armed career criminal facing a mandatory minimum of 15 years

imprisonment under federal law if indicted in federal court.” Smith argued that

Thurston's ineffective assistance required the district court to either dismiss the

federal indictment or compel the federal government to make the original plea

offer, after Smith had competent counsel, who practiced federal criminal law, to

advise him.

1 Shortly thereafter, the state charges were dismissed.

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Opposing Smith's motion, the government argued, among other things that:

(1) Smith's Sixth Amendment right to counsel for his federal offense had not

attached during his state plea negotiations; and alternatively (2) Smith could not

establish ineffective counsel because Thurston's performance was objectively

reasonable, and Smith could not show prejudice.

C. Evidentiary Hearing

A magistrate judge held an evidentiary hearing. Thurston testified about his

plea negotiations with prosecutor Parnofiello and his discussions with Smith.

Parnofiello told Thurston, "[W]e are looking at indicting [Smith] [f]ederally. If he

takes the five years we won't do that.” In turn, Thurston "expressed that to Mr.

Smith specifically.” He and Smith had "lots of discussions” about the plea offer

and the possibility of a federal indictment, but Smith "did not think that would

happen” and never wanted to consider the five-year offer.

Thurston also asked Parnofiello to advise what Smith "would be looking at”

if Smith rejected the five-year plea and was indicted in federal court. Thurston

wanted to give Smith the potential alternatives, even though Smith did not want

them and already had given him "strict instruction to prepare for trial.” In

response, Parnofiello sent the two October 1 and 15 emails.

Thurston then met with Smith at the jail and gave him physical copies of

both emails. Thurston told Smith that the five-year offer was still pending and that

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the emails were the prosecutor's indication of what Smith faced if he were indicted

in federal court. Thurston tried to discuss the contents of the emails with Smith,

telling Smith, "I know you don't want it, but I want you to have this because these

are [the] potential consequences if the [g]overnment goes ahead and files the

[f]ederal charges against you.” Smith, however "was not interested in any of those

emails” and told Thurston "unequivocal[lly] that he was not going to take any plea

offer.”

Thurston believed it was "more than likely” that Smith's case "would be

taken [f]ederally” if Smith did not accept the state plea offer. Smith, however, told

Thurston that: (1) Parnofiello "was bluffing”; (2) "I am not going to be [federally]

indicted”; (3) "they had nothing on him”; (4) he did not want to talk about any plea

offer; and (5) if Thurston presented plea offers, then Thurston was working for the

state instead of "preparing his case to go to trial.” Smith asked Thurston if he still

wanted to represent Smith because Smith wanted his case prepared for trial. Smith

never indicated to Thurston that he would accept the state's plea offer. Smith

never asked him to negotiate a more favorable plea agreement.

Thurston testified that he was a thirty-year member of the Florida bar with

no disciplinary history. While in private practice, he had represented criminal

defendants in federal court, most recently in 2011, and he was familiar with the

ACCA and the federal Sentencing Guidelines. He admitted that he did not

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currently practice federal law, but he would have consulted friends who were

federal public defenders if Smith had asked any questions about the contents of

Parnofiello's emails. Thurston did not independently verify Parnofiello's

guidelines calculations or Smith's prior convictions and status as an armed career

criminal. Thurston did not do so because Smith was adamant that he would not

accept any plea offer and wanted to go to trial.

Thurston denied that Smith expressed concern that he could still be indicted

in federal court even if he took the state plea offer. Rather, "[f]rom the beginning,”

Thurston had discussed with Smith "that [they] want[ed] to take the offer so that

there will not be any [f]ederal charges filed.” There was no doubt in Thurston's

mind that Smith understood there would be no federal charge if he took the state

plea. Thurston also explained to Smith that if federal charges were filed, Smith

would not have a trial in state court.

After Thurston's testimony, the government submitted audio recordings of

Smith's phone calls from jail to his girlfriend. In a November 2, 2018 call, Smith

said, "I'm going to trial; I'm taking it to trial, dog. Like at the least, I'm trying to

get all my charges dropped but, in reality, man, I might be facing, you know what

I'm saying some serious time. Hopefully, I ain't gon' take . . . no serious time,

like, but they talking like three to five years.” Smith told his girlfriend, "I can beat

this charge” and that he would "fight this shit.” Later in the same conversation,

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Smith said, "If them crackers come at me and say 'Will you take six months, eight

months, a year in the county?' I might have to jump on it, you feel me, I'm just

letting you know.” In another call a week later, Smith told his girlfriend he would

"be coming home soon,” and that he hoped for a "decent plea” to "a year at the

most” of "county time.”

D. Denial of Motion to Dismiss

After hearing argument from counsel, the magistrate judge issued an oral

recommendation that Smith's motion to dismiss the indictment be denied. The

magistrate judge declined to address the government's claim that Smith's Sixth

Amendment right to counsel never attached as to the federal charge and instead

denied Smith's ineffective assistance claim "on factual grounds.”

After ruling that Thurston's testimony was credible, the magistrate judge

found that: (1) Thurston had "handed a copy of the email to Mr. Smith, [plus] they

had multiple discussions and the plea offer was fully communicated”; (2) Smith

"told [Thurston] that he believed the [g]overnment was bluffing,” which was

buttressed by Smith's phone conversations with his girlfriend in which he said, "he

would not take a deal that would require him to do a year, let alone five years”; and

(3) Smith was "told and did understand that if he rejected the plea offer, and if the

[g]overnment wasn't bluffing, he would be facing 15 years in jail” and "knowing

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that information, Mr. Smith expressed a firm desire to go to trial, not to have plea

discussions, [and to] prepare for trial . . . .”

Based on these facts, the magistrate judge concluded that Thurston provided

Smith with sufficient information about whether to reject the state plea offer and

that Smith's decision to do so was a knowing and voluntary decision. The

magistrate judge explained that Thurston's knowledge of the federal sentencing

laws was not germane. Even if Thurston had fully researched the sentencing issue,

he "would have known Mr. Parnofiello [was] right” and that Smith in fact was

"looking at 15 years” if indicted in federal court.

Over Smith's objection, the district court adopted the magistrate judge's

recommendation and denied Smith's motion to dismiss the indictment. The district

court determined that the magistrate judge's fact findings and credibility

determinations were supported by the record and adopted them in full. The district

court found that Thurston communicated to Smith that (1) "he could plead guilty in

exchange for a 5-year sentence” and (2) "if he rejected the offer, he would be

federally indicted and subject to a 15-year minimum mandatory sentence.” The

court then found (1) Smith "was unwilling to accept the 5-year offer or engage in

any plea discussions”; (2) Smith "stated that the government was bluffing and that

he wanted Mr. Thurston to prepare for trial”; and (3) Smith "has not demonstrated

a reasonable probability that he would have accepted the plea offer.” The district

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court concluded that even if Thurston's performance was deficient, Smith had not

shown prejudice. The district court did not address the government's argument

about when Smith's Sixth Amendment right to counsel attached because there was

no prejudice in any event.

E. Plea and Sentencing

After the district court's ruling, Smith pled guilty to Count 1 pursuant to a

plea agreement. In a stipulated statement of facts, Smith agreed that he had three

prior felony convictions for sale of cocaine, in violation of Fla. Stat.

§ 893.13(1)(a)(1).

Smith's presentence investigation report ("PSI”) noted that the statutory

mandatory minimum term for his § 922(g)(1) firearm offense was 15 years under

§ 924(e)(1). The PSI calculated an adjusted offense level of 30 consisting of: a

base offense level of 24 under U.S.S.G. § 2K2.1(a)(2), because Smith had three

prior felony convictions for sale of cocaine; a 2-level increase under

§ 2K2.1(b)(4)(A), because Smith's handgun was stolen; and a 4-level increase

under § 2K2.1(b)(6)(B), because he used the handgun in connection with another

felony offense, namely possession of controlled substances. Because Smith was

subject to the ACCA's enhanced sentence and his three sale of cocaine convictions

qualified as "controlled substance offense[s]” under U.S.S.G. § 4B1.2(b), the PSI

increased Smith's adjusted offense level by another 4 levels to 34 pursuant to

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§ 4B1.4(b)(3)(A), the armed career criminal provision. After a 3-level reduction

for acceptance of responsibility, Smith's total offense level was 31. With a

criminal history category VI, Smith's advisory guidelines range was 188 to 235

months' imprisonment.

Smith objected to his ACCA classification. Smith agreed that a Florida sale

of cocaine offense was a "controlled substance offense” under U.S.S.G. § 4B1.4.

Smith, however, contended that it did not qualify as a "serious drug offense” under

the ACCA using the categorical approach, because Fla. Sta. § 893.13 contains no

mens rea element. Smith conceded that this Court's binding precedent in United

States v. Smith, 775 F.3d 1262 (11th Cir. 2014), foreclosed his ACCA-mens rea

argument but noted that the Supreme Court had granted certiorari to address the

issue in United States v. Shular, 736 F. App'x 876 (11th Cir. 2018), cert. granted,

139 S. Ct. 2773 (2019).

At sentencing, the district court overruled Smith's ACCA objection based on

Smith and adopted the PSI's guidelines calculations. The district court varied

downward from the advisory guidelines range of 188 to 235 months and imposed

§ 924(e)'s mandatory minimum 180-month sentence.

II. STANDARD OF REVIEW

Generally, we do not review an ineffective assistance of counsel claim raised

on direct appeal. However, where, as in defendant Smith's case, the district court

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has entertained the claim and "the record is sufficiently developed,” we will do so.

See United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). We review

such a claim de novo. Id. We review the district court's underlying fact findings,

including its credibility findings, regarding counsel's assistance for clear error.

Chateloin v. Singletary, 89 F.3d 749, 753 (11th Cir. 1996).

III. INEFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment guarantees a criminal defendant the right to effective

assistance of counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S.

668, 684-86, 104 S. Ct. 2052, 2063 (1984). A defendant's right to effective

assistance of counsel applies at all critical stages of a criminal proceeding,

including when the defendant enters a guilty plea. Lee v. United States, ___ U.S.

___, 137 S. Ct. 1958, 1964 (2017). The parties vigorously dispute whether Smith's

Sixth Amendment right to counsel had attached during his state plea negotiations,

which occurred before his federal indictment was filed. We need not address this

issue. Even assuming Smith's Sixth Amendment right to counsel attached, Smith

failed to establish that Thurston's representation was constitutionally ineffective.

To demonstrate ineffective assistance of counsel under Strickland, a

defendant must show both that: (1) counsel's representation fell below an objective

standard of reasonableness; and (2) the defendant was prejudiced as a result. Id.

At the outset, we note that Smith does not contest any of the district court's fact

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findings or its decision to credit defense counsel Thurston's hearing testimony. In

light of these fact findings, Smith's ineffective assistance claim fails both prongs of

the Strickland test. We address performance and prejudice in turn.

A. Counsel's Performance

Whether counsel's performance fell below an objective standard of

reasonableness is determined based on "reasonableness under prevailing

professional norms.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65.

Counsel's performance is entitled to a presumption of reasonableness, and to

overcome that presumption, a defendant must show that "no competent counsel

would have taken the action that his counsel did take.” Chandler v. United States,

218 F.3d 1305, 1315 (11th Cir. 2000). In the context of plea negotiations, "defense

counsel has the duty to communicate formal offers from the prosecution to accept a

plea on terms and conditions that may be favorable to the accused.” Missouri v.

Frye, 566 U.S. 134, 145, 132 S. Ct. 1399, 1408 (2012); see also In re Perez, 682

F.3d 930, 932 (11th Cir. 2012).

Here, Smith has not shown that Thurston's performance was deficient.

Thurston repeatedly advised Smith that he should accept the five-year state plea

deal to avoid the federal indictment that prosecutor Parnofiello said he was

preparing. Thurston visited Smith at the jail and showed him the prosecutor's two

emails. Thurston informed Smith that, according to Parnofiello, Smith faced at

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least a 15-year mandatory minimum sentence under the ACCA if Smith was

indicted in federal court. Thurston further advised Smith that if he rejected the

state plea offer, Thurston believed a federal indictment was likely and that it would

mean there would be no trial in state court.

In response, Smith was adamant, as he had been in the past, that: (1) he was

not interested in Parnofiello's five-year plea offer; (2) he, unlike his counsel,

thought Parnofiello was bluffing about seeking a federal indictment; and (3) he

wanted Thurston to prepare for a state trial.

The record clearly establishes that Thurston conveyed to Smith the plea

offer—five years in state prison in exchange for no federal charges being filed—

and advised Smith of the possible consequences if he rejected it—a federal

indictment that could subject him to a 15-year mandatory minimum sentence.

Although Smith contends Thurston did not provide "adequate legal counsel to

make an informed decision about the plea offer,” he does not identify any

additional information he needed to make an informed decision.2

2 Smith points out that Parnofiello's first, October 1 email failed to account for Smith's

armed career criminal status in calculating Smith's potential advisory federal guidelines range.

This "mis-information” is immaterial, however, given that Parnofiello's follow-up email on

October 15 correctly advised Thurston and Smith that Smith's three Florida felony convictions

for sale of cocaine qualified him as an armed career criminal under the ACCA and that Smith

faced a mandatory minimum 15-year federal sentence as a result. In other words, Parnofiello's

October 15 email, which Thurston gave to Smith to read, correctly advised Smith that the

downside risk of rejecting the state five-year plea deal was a minimum 180-month federal

sentence. Yet, knowing this, Smith rejected the plea offer.

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Instead, defendant Smith merely points to the fact that Thurston, as a state

public defender, was not currently practicing criminal law in federal court. Even

so, this fact alone does not mean Thurston's advice to Smith fell below an

objective standard of reasonableness. Indeed, Thurston's advice to take the state

five-year offer to avoid a possible 15-year federal sentence was sound and

reasonable. The problem for Smith is not that his counsel Thurston failed to advise

him, but that Smith failed to heed that advice.

Defendant Smith's argument that Thurston failed to verify prosecutor

Parnofiello's information about his federal sentencing exposure is equally

unavailing. Had Smith expressed any interest at all in entertaining the state's fiveyear offer or in pursuing further negotiations with Parnofiello, Thurston said he

would have verified Parnofiello's information about Smith's status under the

ACCA. But Smith was adamant, as he had been all along, that he did not want to

accept the state plea and was convinced Parnofiello was bluffing about pursuing

federal charges. The record establishes that Thurston conveyed the five-year plea

offer to Smith and adequately advised Smith that if he rejected the offer, the

downside risk was possible federal prosecution and a mandatory minimum 15-year

sentence.

Accordingly, Smith cannot show his counsel's representation with respect to

the state plea offer was objectively unreasonable under Strickland.

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B. Prejudice

Smith's ineffective assistance claim also fails for lack of prejudice. Smith

alleges Thurston's ineffective assistance led him to reject the five-year plea offer,

causing his 15-year sentence. To show prejudice, Smith must show that "but for

the ineffective advice of counsel there is a reasonable probability” that: (1) he

"would have accepted the plea”; (2) "the prosecution would not have withdrawn it

in light of intervening circumstances”; (3) "the court would have accepted its

terms”; and (4) "the conviction or sentence, or both, under the offer's terms would

have been less severe than under the judgment and sentence that in fact were

imposed.” Lafler v. Cooper, 566 U.S. 156, 164, 132 S. Ct. 1376, 1385 (2012); see

also Frye, 566 U.S. at 147, 132 S. Ct. at 1409; Carmichael v. United States, 966

F.3d 1250, 1259 (11th Cir. 2020). The defendant's "own conclusory after-the-fact

assertion” that he would have accepted a guilty plea, without more, is insufficient

to satisfy the first prong of the prejudice test. Rosin v. United States, 786 F.3d

873, 879 (11th Cir. 2015) (stressing that the record evidence that the defendant

"had absolutely no interest in” pleading guilty contradicted his later claim that he

would have done so); see also Diaz v. United States, 930 F.2d 832, 835 (11th Cir.

1991).

Here, Smith did not show, under the first prong of Lafler and Frye, that but

for Thurston's advice, he would have accepted the state five-year plea deal. See

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Lafler, 566 U.S. at 164, 132 S. Ct. at 1385; Frye, 566 U.S. at 147, 132 S. Ct. at

1409. To the contrary, the evidence proved the opposite—that Smith was never

going to accept a plea deal of five years. Smith had no interest in the emails

containing the five-year plea offer or prosecutor Parnofiello's information about

the federal sentence he likely faced if he rejected the offer. Smith thought

prosecutor Parnofiello was bluffing about filing federal charges and that

Parnofiello "had nothing on him.” Smith instructed Thurston to prepare for trial if

Thurston was going to continue representing him.

Smith's unwillingness to accept the five-year plea offer (and even the earlier

three-year plea offer) is further corroborated by his jail phone calls with his

girlfriend. In these calls, Smith said he would not take the "three to five years” the

state prosecutor was offering and that he was "taking it to trial.” Smith told his

girlfriend he thought he could "beat this charge,” and he was "trying to get all [of

his] charges dropped.” Smith indicated the most custodial time he would consider

was one year in the county jail, with credit for the five months he had already

served.

Likewise, Smith has not shown he was prejudiced by Thurston's failure to

verify independently Smith's ACCA status. As the district court stressed,

prosecutor Parnofiello's information about the ACCA sentence was correct. On

appeal, Smith concedes that he qualified as an armed career criminal based on this

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Court's Smith precedent at the time, something Thurston would have learned had

he researched the issue. Second, Smith rejected the five-year plea deal not because

he wrongly believed he was not an armed career criminal, but because he wrongly

believed Parnofiello was bluffing about the federal indictment. In other words,

even if Thurston had told Smith he had verified Smith's ACCA status, the record

demonstrates this information would have made no difference to Smith, who

wanted to prepare for trial and call Parnofiello's bluff.

In light of the record evidence, the district court did not err in concluding

Smith had not shown prejudice.

IV. SMITH'S SENTENCE

Pursuant to the ACCA, a defendant convicted under 18 U.S.C. § 922(g) is

subject to a mandatory minimum 15-year prison term if he has three prior

convictions for a "violent felony” or a "serious drug offense.” 18 U.S.C.

§ 924(e)(l). A "serious drug offense,” in turn, is defined in part as "an offense

under State law, involving manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance . . . for which a maximum term of

imprisonment of ten years or more is prescribed by law.” Id. § 924(e)(2)(A)(ii).

We review de novo a district court's determination that a prior conviction qualified

as a serious drug offense under the ACCA. United States v. White, 837 F.3d 1225,

1228 (11th Cir. 2016).

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This Court held in Smith that a prior conviction for sale of cocaine under

Fla. Stat. § 893.13, the conviction at issue here, qualifies as a serious drug offense

under § 924(e)(2)(A)(ii) of the ACCA. Smith, 775 F.3d at 1267-68.

Consistent with Smith, the Supreme Court recently clarified in Shular v.

United States that the ACCA's definition of a serious drug offense "requires only

that the state offense involve the conduct specified in the [ACCA].” Shular, ___

U.S. ___, ___140 S. Ct. 779, 782 (2020) (emphasis added). The Supreme Court

held that a court determining whether an offense qualifies as a serious drug offense

need only consider whether the offense's elements "necessarily entail” the types of

conduct identified in the ACCA's definition, rather than engage in a "genericoffense matching exercise.” Id. at 783-84 (quotation marks omitted).

In so holding, the Shular Court affirmed this Court's decision in petitioner

Shular's case, which relied on Smith, that a prior conviction under Fla. Stat.

§ 893.13 qualifies as serious drug offense under the ACCA. ___ U.S. at ___, 140

S. Ct. at 785-86. The Supreme Court further noted that the petitioner in Shular had

"overstate[d] Florida's disregard for mens rea,” because a defendant charged under

Fla. Stat. § 893.13(1)(a) who was "unaware of the substance's illicit nature can

raise that unawareness as an affirmative defense, in which case the standard jury

instructions require a finding of knowledge beyond a reasonable doubt.” Id. at

787.

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Here, the district court did not err in determining that defendant Smith's

three prior sale of cocaine convictions under Fla. Stat. § 893.13(1)(a)(1) were

serious drug offenses within the meaning of the ACCA. Smith's argument that his

prior convictions cannot qualify because the state offense lacks a mens rea element

is foreclosed by our Smith precedent and the Supreme Court's precedent in Shular.

See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (explaining that

a panel of this Court is bound by prior precedent until it is overruled by the

Supreme Court or this Court sitting en banc).

AFFIRMED.