USA v. Burroughs, No. 08-3085.

613 F.3d 233

UNITED STATES of America, Appellee

v.Aaron BURROUGHS, Appellant.

No. 08-3085.

United States Court of Appeals,District of Columbia Circuit.

Argued Feb. 26, 2010.

Decided July 16, 2010.

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Appeal from the United States District Court for the District of Columbia (No. 1:07-cr-00126-RJL-1).

Tony Axam Jr., Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.

Mary B. McCord, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief was Roy W. McLeese III, Assistant U.S. Attorney.

Before: SENTELLE, Chief Judge, BROWN and GRIFFITH, Circuit Judges.

Opinion concurring in part and dissenting in part filed by Circuit Judge BROWN.

GRIFFITH, Circuit Judge:

Aaron Burroughs pled guilty to several offenses involving the sexual abuse of a minor and was sentenced to a term of imprisonment followed by supervised release. On appeal Burroughs challenges his sentence, including several special conditions of his release. For the reasons set forth below, we vacate two of the conditions and remand for further proceedings consistent with this opinion. Otherwise, we affirm.

I.

S.G. was fourteen years old in the fall of 2005 when she met Burroughs, then a volunteer assistant football coach at her high school in Maryland. Not long afterwards, Burroughs introduced S.G. to prostitution. He became her pimp, taught her how much she could charge for various sex acts, and repeatedly took her to an area of the District of Columbia known for its high levels of prostitution. This misconduct continued until July 31, 2006, when police discovered S.G. engaged in prostitution in an automobile in Takoma Park, Maryland. S.G. directed the police to Burroughs, who was arrested later that evening.

Burroughs confessed to having vaginal and oral sex with S.G. and to arranging “dates” between her and several of his friends. He also led authorities to one of those friends, Michael Malloy, a U.S. Capitol Police Officer. Burroughs admitted to twice videotaping himself and Malloy engaging in sex acts with S.G.

Burroughs pled guilty to one count each of sexual exploitation of a minor, 18 U.S.C. § 2251(a) (2006); transportation of a minor to engage in prostitution, id. § 2423(a); and first degree child sexual abuse, D.C. CODE § 22-3008. His guideline range was 235 to 293 months' imprisonment. Based on Burroughs's substantial assistance in the investigation and prosecution of Malloy and others, the government authorized the court to grant a downward departure under § 5K1.1 of the Sentencing Guidelines and to impose a sentence below the statutory minimum in accordance with 18 U.S.C. § 3553(e). The government proposed imprisonment for 180 months, the statutory minimum for sexual exploitation of a minor. See 18 U.S.C. § 2251(e). Burroughs asked for a sentence of no longer than 120 months.

In granting the § 5K1.1 departure and selecting a sentence of 192 months' imprisonment and 120 months' supervised release, the district court explained that Burroughs deserved a longer sentence than Malloy's 180 months. See Sentencing Hr'g Tr. at 30 (“[Y]our sentence has to be greater than Malloy's to some degree to reflect the seriousness of your conduct, especially vis-à-vis his. But in light of your cooperation, it shouldn't be much greater.”). The court also imposed, without explanation, numerous conditions of supervised release.

On appeal, Burroughs alleges his counsel at sentencing rendered ineffective assistance and challenges some of the conditions of his supervised release. We have jurisdiction under 18 U.S.C. § 3742(a)(1). See United States v. Hankerson, 496 F.3d 303, 304-05 (3d Cir.2007) (ineffective assistance at sentencing); United States v. Love, 593 F.3d 1, 5-6 (D.C.Cir.2010) (conditions of supervised release).

II.

The Sixth Amendment right to counsel in “all criminal prosecutions” is the right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim that he was denied this right, a defendant must show that his lawyer's representation was deficient in a way that caused him prejudice. See id. at 687, 104 S.Ct. 2052. “To establish deficiency, [he] must show his ‘counsel's representation fell below an objective standard of reasonableness.’ To establish prejudice, he ‘must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” Porter v. McCollum, --- U.S. ----, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009) (quoting Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052) (citations omitted).

Because the record will not often “disclose the facts necessary to decide either prong of the Strickland analysis,” a claim of ineffective assistance ordinarily cannot be resolved on direct appeal. Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). When a “defendant raises on appeal a colorable and previously unexplored claim of ineffective assistance,” United States v. Rashad, 331 F.3d 908, 908 (D.C.Cir.2003), our practice has been to remand to the district court to give the defendant an opportunity to develop the factual basis for his claim, see United States v. Geraldo, 271 F.3d 1112, 1115-16 (D.C.Cir.2001). But “[w]e do not reflexively remand.” United States v. Harris, 491 F.3d 440, 443 (D.C.Cir.2007). To raise a colorable claim, the defendant must make “factual allegations that, if true, would establish a violation of his sixth amendment right to counsel.” United States v. Poston, 902 F.2d 90, 99 n. 9 (D.C.Cir.1990). Once that threshold is cleared, we remand for an evidentiary hearing unless the “record alone conclusively shows that the defendant either is or is not entitled to relief.” Rashad, 331 F.3d at 909-10 (internal quotation marks omitted).

Burroughs alleges that his lawyers should have had him evaluated by a mental health expert before he was sentenced. Although Burroughs could not have afforded the evaluation, the Criminal Justice Act (CJA) makes funding available for expert services “necessary for adequate representation” when the defendant “is financially unable to obtain them.” 18 U.S.C. § 3006A(e)(1). According to Burroughs, his lawyers “realized” that his “mental health was relevant” to the sentencing decision and went so far as to suggest he undergo a mental health evaluation, but they failed to request CJA funding for one. Reply Br. at 5. If their failure to seek funding under the CJA “reflected ignorance of the law, rather than a reasonable strategic decision, ... then the [attorneys'] performance must be deemed deficient.”

United States v. Williams, 358 F.3d 956, 964 (D.C.Cir.2004) (emphasis omitted).

We assume, without deciding, that Burroughs's lawyers erred, but we do not remand because Burroughs has not raised allegations that, if proven at an evidentiary hearing, would show prejudice. Burroughs contends that a mental health evaluation could have led to evidence that could have resulted in a downward variance from the guideline range in addition to the downward departure he received under § 5K1.1. But this argument rests on the assumption that the district court would have provided funding for an evaluation.

Because “[i]t cannot be true ... that a defendant always has a right to a psychiatrist under § 3006A,” United States v. Chavis, 476 F.2d 1137, 1142 (D.C.Cir.1973), the CJA requires a showing of necessity, see, e.g., United States v. Kennedy, 64 F.3d 1465, 1470 (10th Cir.1995) ( “[T]he defendant must do more than allege that the services would be helpful.”). “Necessity is made out where ... a reasonable attorney would engage such services for a client having the independent means to pay for them.” United States v. Anderson, 39 F.3d 331, 343 (D.C.Cir.1994) (internal quotation marks omitted), rev'd on other grounds, 59 F.3d 1323 (D.C.Cir.1995) (en banc). Burroughs points to four factors he thinks demonstrate that expert mental health assistance was necessary in his case: the nature of the offense, his lack of prior convictions, his post-incarceration depression, and his request to enter a sex offender treatment program. See Reply Br. at 4. Setting aside for a moment his depression, the factors Burroughs invokes are present in the case of nearly every first-time sex offender seeking a mental health evaluation. Paid counsel regularly and ably represent their clients in these circumstances without the aid of expert psychologists. Clearly these allegations do not suffice to show the necessity of expert services under the CJA.

About his depression, the Presentence Investigation Report notes that Burroughs was briefly treated for “depression and adjustment disorder with depressed mood” following “a difficult adjustment to incarceration.” PSR ¶ 41. Burroughs provides no reason to think that his trouble acclimating to prison indicates that he suffers from other, underlying mental health issues. Indeed, his initial difficulties may reflect nothing more than the normal course of adjustment to life in prison. See Craig Haney, The Psychological Impact of Incarceration: Implications for Postprison Adjustment, in Prisoners Once Removed 33, 37-40 (Jeremy Travis & Michelle Waul eds., 2003). Without more-and Burroughs offers nothing more-his post-incarceration depression provides no basis for concluding that a mental health evaluation was necessary for adequate representation at sentencing. See United States v. Anderson, 547 F.3d 831, 833-34 (7th Cir.2008).

Should an evidentiary hearing demonstrate the truth of everything Burroughs alleges, it still would not be reasonably probable that the district court would have granted him funding under the CJA. Without “any substantial issue that requires a determination of facts,” Poston, 902 F.2d at 99...