United States of America v. JASON LESLIE JULIANO

San Francisco - Criminal defense lawyer represented defendant

with being a felon in possession of a firearm and ammunition (Count 1), and for possession with intent to distribute fifty grams or more of actual (pure) methamphetamine (Count 2) charges. He now files a motion to vacate, set aside, or correct his sentence.

In January 2018, Juliano was indicted for being a felon

in possession of a firearm and ammunition (Count 1), and

for possession with intent to distribute fifty grams or more

of actual (pure) methamphetamine (Count 2). Five months

1 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5194–

249 (2018).

4 UNITED STATES V. JULIANO

later, on June 7, 2018, Juliano entered a plea agreement with

the government and agreed to plead guilty to both counts. A

few months later, on October 9, 2018, the district court

accepted the plea agreement and sentenced Juliano to

120 months for Count 1 and to 240 months for Count 2, to

run concurrently.

Notably, in the plea agreement, the government agreed

to recommend the minimum 240-month imprisonment and

file only one sentence enhancement. At the time, for the

offense charged in Count 2, 240 months was the minimum

penalty permitted for a defendant who, like Juliano, had one

prior felony drug offense conviction. See 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)(viii) (2010) (amended 2018). For

Juliano, that minimum penalty compared favorably with the

262- to 327-month guideline imprisonment range based on

his total offense level and criminal history category.

Two and a half months after Juliano's sentencing, the

First Step Act (Act) was signed into law on December 21,

2018. The Act reduced the mandatory minimum penalty for

certain drug crimes, including those for which Juliano was

convicted, from twenty years to fifteen years. 21 U.S.C.

§ 841(b)(1)(A). As is often the case with legislation, the Act

did not enjoy easy passage. See, e.g., Shon Hopwood, The

Effort to Reform the Federal Criminal Justice System,

128 Yale L.J. F. 791, 794–95 (2019).

In September 2019, Juliano filed a pro se motion under

28 U.S.C. § 2255 to vacate, set aside, or correct his sentence

on the ground of ineffective assistance of counsel. Juliano

argued, inter alia, that his attorneys provided ineffective

assistance by failing to investigate or inform him about the

First Step Act, which was pending in Congress when he was

sentenced, or move for a continuance of his sentencing. In

evaluating his petition, the district court reasoned that courts

UNITED STATES V. JULIANO 5

"have uniformly concluded that a defense attorney is not

deficient in failing to anticipate a change in the law.” It also

noted that "it is doubtful the Court would have been

receptive to a request to delay sentencing by—at

minimum—more than two months based solely on

[Juliano]'s desire to be sentenced under a more favorable

statutory scheme, the enactment of which was at that point

only a possibility.” The district court therefore denied

Juliano's petition.

III. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. §§ 2253 and

2255(d), and "[w]e review de novo a district court's decision

to deny a motion under 28 U.S.C. § 2255.” United States v.

Chacon-Palomares, 208 F.3d 1157, 1158 (9th Cir. 2000).

"A claim of ineffective assistance of counsel raises a mixed

question of law and fact, which we review de novo.” Id.

IV. Discussion

The Sixth Amendment guarantees "a defendant pleading

guilty to a felony charge . . . . the right to the effective

assistance of counsel.” McMann v. Richardson, 397 U.S.

759, 771 n.14 (1970) (citations omitted). To establish

ineffective assistance of counsel, a defendant must show

both that: (1) "counsel's performance was deficient,” and

(2) "the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). "Under

Strickland, a criminal defendant's counsel may be deemed

ineffective only if counsel's performance falls outside the

wide range of reasonable professional assistance.” TorresChavez v. Holder, 567 F.3d 1096, 1100–01 (9th Cir. 2009)

(citation and internal quotation marks omitted). "Our

scrutiny of counsel's performance must be highly

deferential, and the defendant must overcome the

6 UNITED STATES V. JULIANO

presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id. at 1101

(citation and internal quotation marks omitted).

"In particular, we must evaluate the conduct from

counsel's perspective at the time, taking care not to view a

lawyer's decisions in the distorting effects of hindsight . . . .”

Id. (citation and internal quotation marks omitted).

"Because advocacy is an art and not a science, and because

the adversary system requires deference to counsel's

informed decisions, strategic choices must be respected in

these circumstances if they are based on professional

judgment.” Id. (citation omitted). The Strickland "test

applies to challenges to guilty pleas based on ineffective

assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58

(1985).

Given that the reasonableness of counsel's conduct must

be evaluated based on the time it occurred, courts have

articulated a rule that ineffective assistance of counsel claims

generally cannot be predicated on counsel's failure to

anticipate changes in the law.2 For example, in Lowry v.

Lewis, we determined that a "lawyer cannot be required to

anticipate our decision” in a separate § 1983 suit raising

2 See, e.g., United States v. Fields, 565 F.3d 290, 294 (5th Cir. 2009)

("[W]e have repeatedly held that there is no general duty on the part of

defense counsel to anticipate changes in the law.” (citation and internal

quotation marks omitted)); Sistrunk v. Vaughn, 96 F.3d 666, 670–71 (3d

Cir. 1996) ("[I]n making litigation decisions, there is no general duty on

the part of defense counsel to anticipate changes in the law.” (citation

and internal quotation marks omitted)); Carter v. Hopkins, 92 F.3d 666,

670 (8th Cir. 1996) ("We have stated previously that counsel need not

anticipate a change in existing law to render constitutionally effective

assistance of counsel.” (citation and internal quotation marks omitted));

Lilly v. Gilmore, 988 F.2d 783, 786–88 (7th Cir. 1993) (observing that

counsel is not required to forecast changes or advances in the law).

UNITED STATES V. JULIANO 7

similar issues. 21 F.3d 344, 346 (9th Cir. 1994). In Lowry,

the petitioner claimed ineffective assistance of counsel

because his lawyer did not move to suppress contraband

found from a search of the petitioner's body. Id. at 345.

Although his lawyer knew of a § 1983 lawsuit challenging

the search, the lawyer declined to move to suppress evidence

from the search after learning that related motions to

suppress had failed. Id. On habeas review, the petitioner

argued that the evidence from the search would have been

suppressed pursuant to one of our court's decisions rendered

in the § 1983 lawsuit. Id. at 346. But that decision was

issued after his lawyer declined to file a motion to suppress.

See id. Reasoning that counsel's conduct "must be evaluated

for purposes of the performance standard of Strickland as of

the time of counsel's conduct,” id. (citation and internal

quotation marks omitted), we concluded that counsel's

performance was not deficient when, among other things, he

failed to anticipate a future decision. See id.

Although Lowry concerned developments in the law

arising from a judicial opinion, a similar rationale applies to

changes in the law from legislation. Whether a change in the

law occurs from the issuance of an opinion or the enactment

of a bill, the crux of the deficiency prong in an ineffective

assistance of counsel claim centers on the reasonableness of

counsel's conduct at the time it occurred. See Strickland,

466 U.S. at 690; Lowry, 21 F.3d at 346. Here, similar to

Lowry, the law that Juliano argues his counsel allegedly

failed to anticipate was not actually law at the time of his

counsel's challenged conduct. Nor was it certain that it

would become law. Only a fraction of proposed legislation

8 UNITED STATES V. JULIANO

eventually becomes law.3 And for this particular proposed

legislation—despite its wide, bipartisan support (and

reported assurances from the President that he would sign it

into law if presented to him)—at the time of counsel's

challenged conduct, it remained unclear if and when it would

ever become law.4 Given the general uncertainty

surrounding pending legislation, Juliano's counsel's alleged

failure to advise Juliano about the First Step Act or to seek a

continuance based on this potential legislative change fails

to meet Strickland's highly deferential test. 466 U.S. at 689.

Applying the strong presumption that counsel's conduct was

reasonable and "sound trial strategy,” id. (citation omitted),

Juliano's counsel's failure to anticipate the First Step Act

was not objectively unreasonable. See id. at 688.

Holding otherwise would pose serious hindsight

problems. Juliano's counsel's alleged failure to predicate his

sentencing strategy on potential legislative changes only

begins to appear potentially deficient with the benefit of

hindsight that the Act eventually became law. Prior to its

enactment, the Act faced a possibility of failure in Congress.

At the time of sentencing, the possibility that the First Step

Act would be passed did not require Juliano's counsel to

change his approach to Juliano's sentencing. Just as

Strickland warned us against second-guessing counsel's trial

strategy, it also admonished us to make "every effort . . . to

eliminate the distorting effects of hindsight.” Id. at 689.

Requiring defense counsel to change their approach based

3 See Statistics and Historical Comparison, GOVTRACK (last visited

Aug. 25, 2021, 10:20 a.m.), https://www.govtrack.us/congress/bills/

statistics.

4 See Amy B. Cyphert, Reprogramming Recidivism: The First Step

Act and Algorithmic Prediction of Risk, 51 Seton Hall L. Rev. 331, 333

(2020).

UNITED STATES V. JULIANO 9

on legislative proposals that might become law would run

counter to Strickland's guidance.

This case in particular illustrates how permitting

criminal defendants to claim ineffective assistance of

counsel based on post-sentencing legislative changes invites

speculation. As part of Juliano's pre-First Step Act plea

deal, the government agreed to file only one prior conviction

enhancement, even though the government could have filed

multiple enhancements based on Juliano's criminal history.

See 21 U.S.C. § 851. There is no guarantee that the

government would have offered the same plea deal if Juliano

had attempted to delay his sentencing. And while Juliano's

mandatory minimum sentence under the First Step Act for

his plea with only one prior conviction enhancement would

have been fifteen years (instead of the twenty he received),

21 U.S.C. § 841(b)(1)(A), his mandatory minimum if the

government had filed two prior conviction enhancements

would have been twenty-five years under the First Step Act.

See id. The uncertainty of a better deal for Juliano after the

enactment of the First Step Act underscores the inability to

show that his counsel acted unreasonably.5

5 We further note that the ability of Juliano's counsel to have

obtained a delay in sentencing is questionable at best. Counsel for

defendants are not capable of delaying sentencing unilaterally; both

district courts and prosecutors face institutional pressures to close cases

and avoid dilatory tactics or delay.

Juliano has not shown that his counsel’s conduct

throughout his sentencing was objectively unreasonable.

His ineffective assistance of counsel claim therefore fails.



AFFIRMED