Baker v. United States

109 F.4th 187

Steven L. BAKER, Appellant v. UNITED STATES of America

No. 23-2059

United States Court of Appeals, Third Circuit

Argued May 1, 2024

Opinion Filed: July 25, 2024

Appeal from the United States District Court for the District of New Jersey (District Court No. 3-14-cv-00370), U.S. District Judge: Honorable Peter G. Sheridan

Alison Brill, Esq. (Argued), Office of Federal Public Defender, 800-840 Cooper Street, Suite 350, Camden, NJ 08102, Counsel for Appellant

Sabrina G. Comizzoli, Esq. (Argued), Mark E. Coyne, Esq., Steven G. Sanders, Esq., Office of United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Counsel for Appellee

Before: KRAUSE, CHUNG, and AMBRO, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge

Following a robbery of the First Atlantic Federal Credit Union in Neptune, New Jersey on January 13, 2010, federal prosecutors charged Steven Baker with bank robbery and using a firearm during the robbery, the latter in violation of 18 U.S.C. § 924(c). They offered Baker a plea agreement, under which he would plead guilty to those two charges and also admit to, but not be charged with, the commission of two other bank robberies while using a firearm.

It was here the problems at the heart of this appeal began. Baker's counsel advised him that he faced a total of 15-17 years' imprisonment if he accepted the plea and that, if he did not accept it, the Government would also charge him in connection with the two other armed bank robberies. As to the three potential Section 924(c) counts, his counsel told him that he faced a consecutive term of 21 years' imprisonment. In fact, he faced a consecutive 57-year mandatory minimum sentence under the statute's "stacking" provision then in effect. After receiving this highly inaccurate advice, Baker turned down the plea, was charged in connection with the other robberies, and proceeded to trial, where he was convicted on all counts. His sentence was 57 years on the Section 924(c) counts plus 87 months on the bank robbery charges.

Baker filed a direct appeal, and we affirmed the judgment and sentence. United States v. Baker, 496 F. App'x 201, 206 (3d Cir. 2012), cert. denied, 568 U.S. 1148, 133 S.Ct. 992, 184 L.Ed.2d 770 (2013). He then filed a Section 2255 federal habeas motion, arguing that his counsel was constitutionally ineffective for severely miscalculating his sentence exposure as he weighed the plea offer. 28 U.S.C. § 2255. The District Court denied relief, determining Baker could not show prejudice.

Considering the significant disparity in Baker's comparative sentence exposure between accepting the plea offer and going to trial and crediting his testimony that he would have accepted the plea agreement but for his counsel's error, we conclude that Baker has demonstrated prejudice. Thus, we reverse and remand.

I. Background

A. Plea Offer and Trial

The initial charges against Baker included two counts: (1) bank robbery by force and violence, in violation of 18 U.S.C. §§ 2113(a) and 2; and (2) using or carrying a firearm in furtherance of the robbery, in violation of 18 U.S.C. § 924(c). Baker hired an attorney to represent him, who remained his counsel through his direct appeal.

On February 17, 2010, the Government offered Baker a plea agreement. If accepted, Baker would plead guilty to the two counts above (although the initial bank robbery charge would be upgraded to armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d)) and also admit to committing two other bank robberies: one on September 24, 2009, of the Investors Savings Bank in Lakewood, New Jersey, and another on November 9, 2009, of the PNC Bank in Brick, New Jersey. In exchange, the Government would not bring additional charges against Baker in connection with the two earlier robberies. The agreement was set to expire on March 17, 2010, a month later.

Baker met with his counsel to discuss the plea offer on March 21, 2010—four days after its original expiration date—at the Monmouth County Correctional Institution. Surprisingly, there is nothing in the record bearing on whether the Government extended the initial deadline. Nonetheless, both parties assume that the offer remained open for Baker to accept when he met with his counsel.

Baker's counsel told him that if he accepted the agreement, his sentence exposure on the two counts would be 15-17 years (8-10 years for the bank robbery charge and a mandatory consecutive 7 years for the Section 924(c) charge). She also advised him that if he rejected the plea offer, he would be charged in connection with the two earlier bank robberies, i.e., with two additional counts of armed bank robbery under 18 U.S.C. § 2113(a), (d) and two more firearm counts under Section 924(c), resulting in six counts total.

His counsel then advised him on his sentence exposure on the six potential counts were he to reject the plea agreement and go to trial. For the bank robbery charges, it is unclear precisely what she told him. Baker testified that he understood he could receive 10-30 years for the three counts. But his counsel's handwritten notes from the plea discussion suggest she told him he faced 15-35 years on those counts.¹

For the three potential Section 924(c) counts, Baker's counsel told him he faced 21 years, 7 years for each count. This is reflected in her notes from the meeting, where she wrote "7-7-7" next to the 21-year figure added to his total sentence exposure—numbers that are inexplicable if not referring to the potential Section 924(c) charges. App. 176. Baker understood the 21-year total for those counts to be a maximum.²

His counsel's notes then summed up Baker's sentence exposure, calculating he faced a total term of imprisonment of 36-56 years if he were convicted of the six potential counts: 21 years for the Section 924(c) charges and 15-35 years on the bank robbery charges. But in light of Baker's testimony that he was told he faced 10-30 years for the bank robbery counts, the District Court gave him the benefit of the doubt and assumed instead that he was told the sentencing range was 31-51 years for all six counts. Baker also testified that he believed his chances of receiving the maximum sentence within that range—51 years—were "slim to none" based on conversations with his counsel. App. 93.

Altogether, then, his counsel told him he faced 15-17 years if he accepted the plea offer and either 31-51 or 36-56 years if he rejected the plea agreement and was convicted of all the potential counts at trial.

This calculation, however, substantially understated the amount of time Baker faced on the three Section 924(c) counts. He actually faced a 57-year mandatory minimum under the version of the statute then in force. This resulted from the "stacking" provision under Section 924(c), which provides a 7-year mandatory minimum for brandishing a firearm while committing a crime of violence (here, the bank robberies), 18 U.S.C. § 924(c)(1)(A)(ii), and, at the time, provided a 25-year mandatory minimum term of imprisonment "[i]n the case of a second or subsequent conviction," 18 U.S.C. § 924(c)(1)(C) (prior to the 2018 amendment). The term "second or subsequent conviction" was interpreted to include instances where a defendant was convicted of multiple counts in the same indictment, as occurred with Baker. See Deal v. United States, 508 U.S. 129, 132-37, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). Under this prior "stacking" provision, Baker thus faced one 7-year plus two 25-year mandatory minimum terms of imprisonment.

Congress then amended the statute as part of the First Step Act of 2018, Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221-22, which clarified that the "stacking" 25-year mandatory minimum term for a subsequent conviction only applies when a violation of that section—i.e., using or carrying a firearm during the commission of a violent felony—"occurs after a prior conviction . . . has become final." 18 U.S.C. § 924(c)(1)(C) (as amended in 2018).³

Relying on his counsel's miscalculation and without the benefit of knowing his true sentence exposure, Baker rejected the plea offer. The Government then filed a superseding indictment, adding two counts of armed bank robbery and two Section 924(c) counts.⁴ Baker pleaded not guilty and proceeded to trial, where the jury found him guilty of all counts. He testified that he only learned that the three Section 924(c) counts carried a mandatory minimum of 57 years after he read over his presentence investigation report.

The District Court sentenced Baker to the 57-year mandatory minimum for the Section 924(c) counts to be served consecutively to 87 months for the bank robbery counts, the latter being at the lowest end of the U.S. Sentencing Guidelines range of 87-108 months applicable to a total offense level of 27 and a criminal history category of III. U.S.S.G. ch. 5, pt. A. It also imposed supervised release of 5-year terms for each count, to be served concurrently, and restitution in the amount of $145,111.00. Baker was 40 years old at the time of sentencing. He represents in his briefing that, with his good time credit, he is required to serve at least 55 years total, meaning he will be in prison until he is roughly 95. Baker filed a direct appeal, and we affirmed the judgment and sentence. Baker, 496 F. App'x 201.⁵

B. Federal Habeas Proceedings

In January 2014, Baker filed pro se a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In this initial motion, he made numerous claims of ineffective assistance of counsel but not the one directly at issue here concerning his sentence exposure on the Section 924(c) counts. One claim alleged that Baker's counsel did not inform him of a separate plea deal he believed the Government had offered, which, in his understanding, would have required him to plead guilty to one count of criminal possession of stolen property in exchange for the dismissal of the bank robbery charges. Baker claimed that his counsel...