United States of America v. Charles Lee Smoot

On September 20,

2017, Appellant, Charles Smoot, pled guilty to one count of

bank robbery in violation of 18 U.S.C. § 2113(a). He was

subsequently sentenced to 96 months of incarceration. He now

appeals to overturn his conviction and sentence.

In support of his appeal, Appellant raises three claims of

ineffective assistance of counsel. He contends, first, that his

counsel was inadequately prepared for trial, second, that his

counsel failed to object to an erroneous finding allegedly made

by the District Court during sentencing and, third, that a

conflict of interest existed between him and his counsel.

Appellant’s first claim of ineffective assistance of counsel fails

because, even assuming that counsel was inadequately

prepared, Appellant has failed to show that this caused him to

plead guilty. Appellant’s second claim fails because it is based

on a mischaracterization of the record. Appellant asserts that

the District Court erroneously found, at sentencing, that

Appellant possessed a gun during the robbery, and that counsel

for Appellant should have objected to that finding. The record

is clear, however, that the District Court made no such finding

and, therefore, counsel could not have been ineffective for

failing to object. Appellant’s third claim fails because he has

not even alleged that the purported conflict of interest actually

affected his counsel’s performance.

Appellant also argues that his plea agreement is invalid

because the District Court impermissibly participated in plea

bargaining in violation of Rule 11 of the Federal Rules of

Criminal Procedure (“Rule 11”). However, we find no merit in

this claim because the record establishes that the trial judge did

not attempt to influence or coerce Appellant into taking a plea,

nor did the judge otherwise inappropriately participate in plea

bargaining.

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Because Appellant has failed to show that he was

prejudiced by his counsel’s performance and, further, because

the record shows that the District Court did not inappropriately

participate in plea bargaining, we affirm.

I. BACKGROUND

On July 5, 2017, at 9:45 a.m., the TD Bank on Rhode

Island Avenue in Washington, D.C., was robbed by a man

wearing a hat with a skull on it, sunglasses, jeans with frayed

cuffs and an insignia, a large black watch with a white border,

and light gray shoes with white soles. The robber was also

carrying a magazine and a black bag with an Under Armour

logo on it. The robber passed demand notes to two tellers, and

he said something along the lines of “Give me all your money

or I’ll kill everyone in here.” The tellers gave him

approximately $5,000. The money that was handed over by the

tellers included GPS trackers. The robber did not brandish a

weapon, but he did keep one hand concealed in the bag

throughout the robbery. The robbery was captured on high

definition surveillance cameras from several angles in the

bank.

Shortly after the robbery, the police began tracking the

money using data coming from the GPS devices. The two

tracking devices appeared together for a period of time before

separating near 62nd Street N.E. Officers found one tracking

device along with some of the money in a black plastic bag near

308 63rd Street N.E. Data from the second tracking device led

them to a residence at 405 60th Street N.E. They began

surveilling the house and saw a man later identified as

Appellant. His clothing did not match the clothes seen on the

robber, but he was wearing a watch and sneakers that appeared

to be the same as those worn by the robber. The officers

observed Appellant holding what appeared to be a large wad of

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currency. They also saw a different individual put a GPS

tracking device in a storm drain in front of the house, where it

was later found. Appellant then drove away from the house.

The officers attempted to conduct a traffic stop to detain

Appellant, but he fled.

Officers then obtained a warrant to search 405 60th Street

N.E., a residence where approximately a dozen individuals,

including Appellant, were living at the time. During the search,

officers found, on a washing machine in the house, the pants

with the frayed hem and emblem that the bank robber wore.

The officers also found a bag that looked like the Under

Armour duffel bag carried by the robber. Another resident of

the house told the officers that the bag belonged to “Chuck,” or

Charles Smoot. That resident also informed officers that

Appellant had been in the house that morning, left for a period

of time, and then returned to the house. She told officers that

Appellant was wearing a hat with a skull on it, like the hat worn

by the bank robber.

Appellant was arrested two days later. At the time of his

arrest, he was wearing gray sneakers with white soles like those

worn by the bank robber. He was also wearing a large black

watch with a white border, like the watch worn by the robber.

A DNA examiner concluded that Appellant’s DNA was on the

Under Armour bag found at 405 60th Street N.E. A

handwriting expert who analyzed the demand notes at the bank

concluded that they were likely written by Appellant.

Appellant’s fingerprints were found on the magazine carried by

the robber, which had been left behind in the bank. In addition,

a witness who knows Appellant identified him as the robber

based on stills from the bank surveillance cameras.

On July 11, 2017, Appellant was indicted by a grand jury

on one count of bank robbery, in violation of 18 U.S.C.

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§ 2113(a). The next day, Appellant appeared before a

magistrate judge and requested that the judge replace his

counsel, a federal public defender. That request was granted

and, on July 13, a new attorney entered an appearance to

represent Appellant.

The parties appeared before the District Court on several

occasions during the pendency of the case. During one pretrial

hearing, which took place on September 1, it came to light that

defense counsel may not have communicated the details of a

then-expired plea offer to Appellant. In light of this revelation,

the Government re-extended the plea offer to Appellant. When

Appellant indicated that he was going to reject the offer, the

Government asked the District Court to explain the details of

the plea offer to Appellant on the record to ensure that

Appellant understood the offer and was knowingly and

voluntarily rejecting it. The District Court then explained the

offer and answered Appellant’s questions about it. At the

conclusion of the hearing, Appellant rejected the plea offer.

On September 15, the parties appeared again before the

District Court. Among other matters, the parties discussed a

pro se motion for substitute counsel filed by Appellant, which

motion the District Court denied.

Shortly thereafter, Appellant accepted an offer identical to

the offer he had rejected on September 1. On September 20,

Appellant entered a guilty plea before the District Court. The

plea agreement provided that the Government would “cap its

allocution at the low end of the Guidelines,” which it estimated

to be 63 to 78 months. Supplemental Appendix 201–02. The

agreement further provided that Appellant would waive certain

rights, including his right to appeal,

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except to the extent the Court sentences [Appellant]

above the statutory maximum or guidelines range

determined by the Court or [Appellant] claims that [he]

received ineffective assistance of counsel, in which case

[Appellant will] have the right to appeal the illegal

sentence or above-guidelines sentence or raise on appeal

a claim of ineffective assistance of counsel, but not to

raise on appeal other issues regarding the sentencing. . . .

Realizing the uncertainty in estimating what sentence the

Court ultimately will impose, [Appellant] knowingly and

willingly waives [his] right to appeal the sentence, to the

extent noted above, in exchange for the concessions

made by the Government in this Agreement.

Id. at 204.

The District Court sentenced Appellant on January 19,

2018. First, the court calculated Appellant’s Federal

Sentencing Guidelines (“Guidelines”) range. The court gave

Appellant the benefit of a three-point reduction for acceptance

of responsibility because he pled guilty. The court then

concluded that Appellant’s Guidelines range was 77 to 96

months, an increase from the parties’ calculation based on a

two-point enhancement for making a death threat during the

offense. See USSG § 2B3.1(b)(2)(F). Although the

Government honored its agreement to recommend 63 months

of incarceration, the District Court sentenced Appellant at the

top of the Guidelines range: 96 months of incarceration, 36

months of supervised release, and a $100 special assessment.

After detailing Appellant’s extensive criminal history, which

included eighteen prior convictions, including seven

convictions for gun crimes, the District Court explained its

sentence as follows:

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[T]he reason, Mr. Smoot, is not that you haven’t taken

responsibility . . . . It’s because of what you did and what

you have done in your past. And the bottom line is,

sometimes judges need to take a step back and ask

themselves, what is in the best interest of the community

to protect people, and this is one of those cases. . . . [A

longer sentence is] an additional period of time that you

are not in the community, it’s an additional period of

time that [you] are not putting people at risk.

Appendix (“A.”) 338.

Appellant then filed a timely appeal with this court.

II. ANALYSIS

A. Ineffective Assistance of Counsel

Appellant presses three claims of ineffective assistance of

counsel. First, he asserts that his counsel was inadequately

prepared for trial. Second, he contends that his counsel failed

to object to an erroneous, prejudicial finding by the District

Court during sentencing. Third, he alleges that a conflict of

interest existed between him and his counsel.

A defendant claiming ineffective assistance of counsel

must “show two things: (1) that counsel’s performance was

deficient, and (2) that the deficient performance prejudiced the

defense.” In re Sealed Case, 901 F.3d 397, 404 (D.C. Cir.

2018) (quoting United States v. Anderson, 632 F.3d 1264, 1268

(D.C. Cir. 2011)). When an ineffective assistance of counsel

claim is raised on direct appeal, this court generally remands

the case to allow the district court to develop a factual record

and address the merits of the claim in the first instance. We

decline to remand only if “the record alone conclusively shows

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that the defendant either is or is not entitled to relief.” Id.

(quoting United States v. Bell, 708 F.3d 223, 225 (D.C. Cir.

2013)).

Appellant’s first claim – that counsel was inadequately

prepared for trial – fails because he has not shown 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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The

evidence against Appellant was overwhelming, including: high

definition surveillance footage from the bank; forensic DNA,

fingerprint, and handwriting evidence; physical evidence taken

from a house where Appellant was residing; and statements

from a witness who identified Appellant as the person in the

surveillance video. GPS trackers led police officers to a

residence where Appellant was staying. Appellant was there

when the officers arrived, he was seen with what appeared to

be a large wad of currency, and he fled when the police officers

attempted to detain him. When he was eventually arrested, he

was wearing a watch and shoes that matched those worn by the

robber at the bank.

In addition, if Appellant had gone to trial, he would have

lost the benefit of the offense level reduction for acceptance of

responsibility. The three-point reduction lowered his

Guidelines range from 100 to 125 months to 77 to 96 months.

See USSG § 5A. Given the overwhelming evidence against him

and the “somewhat favorable” terms of the plea agreement,

Appellant has failed to show a reasonable probability that, had

counsel been better prepared, he would not have pled guilty and

would have insisted on going to trial. United States v. Hunt,

560 F. App’x 2, 3–4 (D.C. Cir. 2014).

Appellant’s second ineffectiveness claim is based on an

alleged finding made by the District Court during sentencing

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that Appellant used a gun during the robbery. Appellant asserts

that his counsel was ineffective for failing to object to this

finding. This claim fails, however, because the District Court

made no such finding. To the contrary, the District Court did

not apply any of the gun enhancements in his Guidelines

computation. And during the sentencing hearing, the District

Court repeatedly said that no one knew whether Appellant was

armed during the robbery. In short, counsel could not have been

ineffective for failing to object to a finding that Appellant was

armed during the robbery because that finding was never made.

Although it is not entirely clear from his briefing,

Appellant appears to raise a third claim of ineffective

assistance of counsel based on an alleged conflict of interest

with his trial counsel. Conflict of interest claims “are a ‘specific

genre’ of ineffective assistance of counsel claim.” United

States v. Wright, 745 F.3d 1231, 1233 (D.C. Cir. 2014)

(quoting United States v. Bruce, 89 F.3d 886, 893 (D.C. Cir.

1996)). “[I]f a defendant can show that ‘a conflict of interest

actually affected the adequacy of [the attorney’s]

representation,’ he ‘need not demonstrate prejudice in order to

obtain relief.’” United States v. Gray-Burriss, 791 F.3d 50, 62

(D.C. Cir. 2015) (alteration in original) (quoting Cuyler v.

Sullivan, 446 U.S. 335, 349–50 (1980)). Here, Appellant has

failed to even allege that a conflict of interest “actually

affected” his counsel’s performance. Id. at 62–63 (“When a

defendant claims a conflict between himself and his attorney,

he must show that the attorney was ‘forced to make a choice

advancing his own interest at the expense of his client’s.’”

(quoting United States v. Taylor, 139 F.3d 924, 930 (D.C. Cir.

1998))). Therefore, to the extent that Appellant is arguing a

third claim of ineffective assistance based on a conflict of

interest, that claim also fails.

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Relatedly, Appellant asserts that the District Court erred

by failing to adequately inquire into the alleged conflict of

interest and by failing to grant Appellant’s motion for

substitute counsel. When an indigent defendant seeks

appointment of substitute counsel, a district court is generally

obligated to “engage the defendant in a colloquy concerning

the cause of the defendant’s dissatisfaction with his

representation.” United States v. Graham, 91 F.3d 213, 221

(D.C. Cir. 1996). A defendant challenging the denial of a

motion to substitute counsel must show that he was not

“afforded effective representation” in order to show that denial

of the motion was prejudicial. Id. (quoting United States v.

Zillges, 978 F.2d 369, 372 (7th Cir. 1992)). As noted above,

the record conclusively shows that Appellant was not

prejudiced by his counsel’s performance. Therefore,

Appellant’s claims the District Court should have inquired

more deeply into his counsel’s performance and should have

granted his motion for substitute counsel also fail. See id. at

222 (“[Appellant’s] claim to substitute counsel must fall with

his claims to have received ineffective assistance from his

court-appointed lawyer.”).

B. Judicial Participation in Plea Negotiations

Appellant also asserts that the District Court

impermissibly participated in plea negotiations in violation of

Rule 11. See Fed. R. Crim. P. 11(c)(1) (“The court must not

participate in [plea] discussions.”). This court has held that a

trial judge may violate Rule 11 “even in cases where the district

judge technically did not participate in discussions with a view

toward a plea agreement.” United States v. Baker, 489 F.3d

366, 371 (D.C. Cir. 2007) (quoting United States v. Cannady,

283 F.3d 641, 644 (4th Cir. 2002)).

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Because Appellant did not object to the Rule 11 violation

at the time when it allegedly occurred, he cannot succeed on

this claim unless we find plain error. See United States v.

Davila, 569 U.S. 597, 608 (2013); see also id. at 608–11

(rejecting the argument that judicial participation in plea

bargaining claims under Rule 11 should be treated differently

than other Rule 11 claims). “[A] defendant who seeks reversal

of his conviction after a guilty plea, on the ground that the

district court committed plain error under Rule 11, must show

a reasonable probability that, but for the error, he would not

have entered the plea.” Id. at 608 (alteration in original)

(quoting United States v. Dominguez Benitez, 542 U.S. 74, 83

(2004)).

Appellant has failed to show plain error. To the contrary,

the record is clear that the District Court did not violate Rule

11. During the hearing in question, the District Court merely

explained the terms of the Government’s plea offer and

answered Appellant’s questions about the offer. None of the

District Court’s statements during that hearing could

reasonably be viewed as an attempt to influence or coerce

Appellant, nor did these statements otherwise constitute

impermissible participation in the plea negotiation.

Appellant argues that the District Court attempted to

convince him to take the plea offer by going “further than just

an observation when it actually argued with the appellant about

the favorability of the plea terms.” Appellant’s Br. 44. But the

transcript from the September 1 hearing does not support this

claim. Rather, what the record shows is that the District Court

accurately characterized the offer as “a slightly more favorable

plea offer” – as a result of the removal of a mandatory forfeiture

provision – than the Government’s prior offer. A. 119. The

District Court’s characterization of the pending offer as

“slightly more favorable” was a description, not an

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endorsement. And the trial judge never said anything to press

Appellant to accept the plea offer. Indeed, Appellant rejected

the offer after the trial judge explained it. In these

circumstances, we reject the suggestion that the District Court

impermissibly participated in plea bargaining.

Appellant also argues that the District Court “entered into

the plea negotiations by describing the government intentions

and predicting what the government wished to offer and what

it would not offer in further negotiations.” Appellant’s Br. 44.

Without question, certain predictions by a trial judge – for

example, that the Government will not make a better offer, or

that a defendant will receive a higher sentence if convicted

following trial – might be viewed as coercive. See, e.g., Baker,

489 F.3d at 374. However, in this case, the statement that

Appellant characterizes as a “predict[ion]” was merely a

restatement by the District Court of the Government’s position

that it would not offer the kind of global plea agreement that

Appellant had requested. See A. 129 (“That’s your answer, Mr.

Smoot, that the government is not prepared to do any more than

it’s offered to you today.”). Such a statement does not

constitute improper judicial participation in plea bargaining.

Furthermore, in order to establish plain error, Appellant

must show that he was prejudiced by the District Court’s

statements. As noted above, Appellant rejected the plea offer

during the September 1, 2017, hearing, and then accepted the

proposed deal more than two weeks later. Appellant does not

claim that he accepted the plea because of anything said or done

by the trial judge. And there is nothing in the record to indicate

that Appellant was in any way coerced by the District Court.

He acted of his own volition when he accepted the plea deal.

Therefore, we find no prejudice to Appellant’s decision to

plead guilty. See Davila, 569 U.S. at 601.

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C. Abuse of Discretion at Sentencing

Appellant also argues that the District Court abused its

discretion at sentencing by relying on Appellant’s prior

weapons convictions in crafting the sentence. However, this

claim is covered by the appeal waiver in Appellant’s plea

agreement. It is well settled that such waivers are enforceable

“if the defendant has the requisite awareness and understanding

of ‘the risks involved in his decision.’” In re Sealed Case, 901

F.3d at 400 (quoting United States v. Guillen, 561 F.3d 527,

529 (D.C. Cir. 2009)). Appellant has not argued that he lacked

the requisite understanding of the risks involved, nor has he

otherwise challenged the validity of his appeal waiver.

Therefore, Appellant waived his right to raise this claim on

appeal.

For the reasons stated herein, the conviction and sentence

are affirmed.