USA v. Melvin Knight

Filing

OPINION [1618611] filed (Pages: 12) for the Court by Judge Kavanaugh. [14-3010, 14-3016]

USCA Case #14-3010

Document #1618611

Filed: 06/10/2016

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 9, 2016

Decided June 10, 2016
No. 14-3010

UNITED STATES OF AMERICA,
APPELLEE
v.
MELVIN KNIGHT,
APPELLANT

Consolidated with 14-3016

Appeals from the United States District Court
for the District of Columbia
(No. 1:13-cr-00131-2)
(No. 1:13-cr-00131-1)

Howard B. Katzoff, appointed by the court, argued the
cause for the appellants. With him on the joint briefs were
Mary E. Davis and Christopher M. Davis.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman and Suzanne Grealy Curt, Assistant U.S. Attorneys.
Before: HENDERSON, ROGERS, and KAVANAUGH, Circuit
Judges.

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Opinion for the court filed by Circuit Judge KAVANAUGH.
KAVANAUGH, Circuit Judge: Shortly after midnight on
January 28, 2013, Tamika Yourse heard gunfire outside her
Washington, D.C., home. Looking out her window, she saw
two men, one of whom had a gun, trying to force her neighbor
Edmund Peters and a woman into Peters’ apartment. Ms.
Yourse called 911. A large number of police officers
responded to the call and swarmed the premises.
At the scene, the police arrested Melvin Knight and Aaron
Thorpe for the D.C. Code offense of kidnapping while armed,
as well as other D.C. Code offenses. The next day, Knight
and Thorpe appeared in D.C. Superior Court. They were held
without bond pending a preliminary hearing scheduled for
February 1, 2013.
In the District of Columbia, the U.S. Attorney’s Office is
the prosecutor for most criminal cases in D.C. Superior Court.
At the February 1 preliminary hearing, the federal prosecutor
stated on the record that the Government had extended a plea
offer of one count of assault with a deadly weapon to Knight
and Thorpe. The offers were “wired,” meaning that each offer
was contingent on acceptance by the other defendant. The
hearing continued on February 19, 2013. The prosecutor
again mentioned the plea offer, but stated that Knight and
Thorpe had not accepted it. The hearing went forward, and
Knight and Thorpe continued to be held without bond. The
D.C. Superior Court later set a trial date of May 15, 2013.
In early May, however, the U.S. Attorney’s Office
dropped the charges in D.C. Superior Court and obtained a
federal grand jury indictment against Knight and Thorpe. The
federal indictment charged each defendant with the federal
offense of being a felon in possession of a firearm, as well as

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the D.C. Code offenses of conspiracy, assault with a dangerous
weapon, kidnapping while armed, burglary while armed,
possession of a firearm during a crime of violence, and
obstruction of justice. (In the unique structure of the District
of Columbia, the U.S. Attorney may prosecute D.C. Code
offenses in federal court so long as federal offenses are also
charged.)
On June 12, 2013, the defense filed a motion to dismiss the
indictment, arguing that the Government had violated the
Speedy Trial Act.
That Act requires an indictment or
information within 30 days of an arrest for a federal criminal
offense. The U.S. District Court denied the motion because
the original arrest was for D.C. Code violations and therefore
did not trigger the Speedy Trial Act’s 30-day clock. The
federal trial commenced on July 22, 2013. A jury found
Knight and Thorpe guilty of all counts. The District Court
sentenced Knight to 22 years and four months of imprisonment
and sentenced Thorpe to 25 years’ imprisonment.
On appeal, Knight and Thorpe raise several challenges.
First, they claim that the Government violated the Speedy Trial
Act. Second, Thorpe argues that his 25-year sentence was
unreasonable. Third, both defendants assert that they received
ineffective assistance of counsel regarding the plea offers they
received in D.C. Superior Court.
We affirm the judgment of the District Court as to the
Speedy Trial Act issue and Thorpe’s sentence. Consistent
with our usual practice, we remand the ineffective assistance of
counsel claims to the District Court for consideration in the
first instance by that court.

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I
The Speedy Trial Act issue in this case arises primarily
because of the unique status of the District of Columbia. The
U.S. Attorney’s Office in the District of Columbia prosecutes
both federal offenses and most D.C. Code offenses. The
Office may prosecute D.C. Code charges in D.C. Superior
Court. It may prosecute federal charges in U.S. District
Court. And it may prosecute combined federal and D.C. Code
charges in either U.S. District Court or D.C. Superior Court.
See D.C. Code § 23-101.
The U.S. Constitution guarantees criminal defendants a
speedy trial. U.S. CONST. amend. VI. Congress has
implemented that right for federal criminal defendants through
legislation. As relevant here, the Speedy Trial Act provides:
“Any information or indictment charging an individual with
the commission of an offense shall be filed within thirty days
from the date on which such individual was arrested or served
with a summons in connection with such charges.” 18 U.S.C.
§ 3161(b).
Importantly for this case, the Act defines
“offense” as “any Federal criminal offense.” Id. § 3172.
Knight and Thorpe were arrested for D.C. Code offenses
on January 28, 2013. The Government obtained a federal
grand jury indictment on May 7, 2013. More than 30 days
therefore passed between the defendants’ January 28 arrest for
D.C. Code offenses and their May 7 indictment for a federal
offense. But the January arrest for D.C. Code violations did
not trigger the Speedy Trial Act’s 30-day requirement. As
this Court has previously ruled, an arrest for a D.C. Code
offense is not an arrest for a federal criminal offense and
therefore does not trigger the Speedy Trial Act’s 30-day clock.
See United States v. Mills, 964 F.2d 1186, 1189-90 (D.C. Cir.
1992) (en banc); see also United States v. Clark, 754 F.3d 401,

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405 (7th Cir. 2014); United States v. Kelly, 661 F.3d 682, 689
(1st Cir. 2011).
The defendants point out that the prosecutor, at their initial
hearing in D.C. Superior Court on February 19, 2013, indicated
that federal charges were possible. But as this Court stated in
United States v. Seals, “whether the prosecutor contemplated
the filing of, or only tentatively decided not to bring, federal
charges at the time of the appellants’ arrests is irrelevant to
deciding when the clock starts.” 130 F.3d 451, 455 (D.C. Cir.
1997).
Knight and Thorpe also urge this Court to recognize a
“ruse” exception to the Speedy Trial Act for situations where
the Government arrests someone on D.C. Code charges with
the intent to bring later federal charges after the Speedy Trial
Act clock otherwise would have expired. But the Court has
previously declined to create such an exception to the Act. In
United States v. Mills, the defendants were arrested for
violations of the D.C. Code. More than 30 days later, the
Government obtained a federal indictment based on the same
conduct. Mills, 964 F.2d at 1188. The Mills defendants
advanced the same argument that Knight and Thorpe do here –
namely, that without a ruse exception, the Government will be
able to “park” defendants in D.C. Superior Court to avoid the
Speedy Trial Act’s 30-day clock. See id. at 1192. But the
Mills Court declined to adopt a ruse exception under the
Speedy Trial Act.
Although the Mills Court declined to create such an
exception under the Act, the Court recognized that a due
process problem may arise when the Government parks a
defendant in D.C. Superior Court to avoid the Speedy Trial
Act. The Court stated: “If a defendant showed that the U.S.
Attorney deliberately arrested him on D.C. charges and

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secured a Superior Court indictment in order to gain time to
gather additional evidence for a federal prosecution, he might
have a valid due process claim for pre-indictment delay.” Id.
But Knight and Thorpe have not demonstrated a due process
violation here. They have not demonstrated that they were
deliberately arrested on D.C. Code charges in order for the
Government to gain time to gather evidence for a federal
prosecution.
Because the January arrests were for D.C. Code offenses,
those arrests did not trigger the Speedy Trial Act’s 30-day
clock. Therefore, no Speedy Trial Act violation occurred in
this case.
II
Thorpe contests his 25-year sentence on a variety of
procedural and substantive grounds.
First, Thorpe raises the procedural argument that the
District Court allegedly failed to consider all of the relevant
Section 3553(a) factors – in particular, his intellectual
disability. That objection is subject to plain error review
because Thorpe did not raise it at his sentencing hearing.
United States v. Wilson, 605 F.3d 985, 1034 (D.C. Cir. 2010).
Thorpe has not pointed to any error, let alone a plain error.
At the sentencing hearing, the District Court heard
arguments from the Government’s attorney and from Thorpe’s
attorney. Both attorneys discussed Thorpe’s intellectual
disability. In sentencing Thorpe, the District Court explained
the Section 3553(a) factors to which it was giving particular
weight and those that it found less compelling. The District
Court emphasized Thorpe’s criminal history and the serious,
dangerous nature of the crimes of conviction. Although the

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District Court did not explicitly mention Thorpe’s intellectual
disability, that does not mean that the District Court did not
consider it. Indeed, given the parties’ discussions about
Thorpe’s intellectual abilities, it is impossible to conclude that
the District Court did not consider Thorpe’s disability as part of
the mix of considerations. As this Court has said many times,
there is no requirement that sentencing courts expressly list or
discuss every Section 3553(a) factor at the sentencing hearing.
See United States v. Locke, 664 F.3d 353, 357 (D.C. Cir. 2011)
(sentencing court not required “to address expressly each and
every argument advanced by the defendant”) (citing Rita v.
United States, 551 U.S. 338, 359 (2007)); see also United
States v. Brinson-Scott, 714 F.3d 616, 627 (D.C. Cir. 2013); In
re Sealed Case, 527 F.3d 188, 191 (D.C. Cir. 2008); United
States v. Simpson, 430 F.3d 1177, 1186-87 (D.C. Cir. 2005).
Second, Thorpe contends that his 25-year sentence is
substantively unreasonable. This Court’s review of criminal
sentences for substantive reasonableness is quite deferential.
It “will be the unusual case when an appeals court can
plausibly say that a sentence is so unreasonably high or low as
to constitute an abuse of discretion.” United States v.
Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008).
This is not such a case. Thorpe was convicted of being a
felon in possession of a firearm, conspiracy, assault with a
dangerous weapon, kidnapping while armed, burglary while
armed, possession of a firearm during a crime of violence, and
obstruction of justice. Thorpe had an extensive criminal
history that included other violent felonies. In light of those
facts, the District Court reasonably concluded that a 25-year
sentence was appropriate for Thorpe’s own chance at reform,
to protect the community, and to deter others from engaging in
similar behavior. See 18 U.S.C. § 3553(a).

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Third, Thorpe objects to the District Court’s
determinations about which parts of his sentence are to run
concurrently and which are to run consecutively. Thorpe was
convicted of nine counts – one federal offense and eight D.C.
offenses. The District Court sentenced him to a term of
imprisonment for each offense. Some of the sentences for the
D.C. offenses were concurrent to one another, and some were
consecutive to one another. The sentence for the federal
offense was consecutive to the sum total of the sentences for
the D.C. offenses.
The federal Sentencing Guidelines and the D.C. Voluntary
Sentencing Guidelines both address how to determine whether
sentences for multiple offenses should run consecutively or
concurrently. However, the federal Sentencing Guidelines do
not apply to the sentencing of D.C. offenses. 18 U.S.C.
§ 3551(a).
Likewise, the D.C. Voluntary Sentencing
Guidelines do not apply to the sentencing of federal offenses.
And neither set of guidelines addresses whether sentences for
federal offenses should run consecutively or concurrently to
the D.C. Code offenses when a defendant is convicted of both
federal and D.C. Code offenses. This Court has said that
because the Sentencing “Guidelines are silent on the issue, how
a court is to relate a Guidelines sentence to a non-Guidelines
sentence is a matter of discretion.” United States v. Cutchin,
956 F.2d 1216, 1219 (D.C. Cir. 1992). Here, given the facts
and circumstances of the offense and the offender, the District
Court acted well within its discretion by making the sentence
for the federal offense consecutive to the sum total of the
sentences for the D.C. Code offenses, with a total sentence of
25 years.
Thorpe also argues that the sentences for some of the D.C.
Code offenses should have been concurrent to one another,
rather than consecutive to one another. But Thorpe cites no

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provision of the D.C. Voluntary Sentencing Guidelines or D.C.
law requiring that the sentences for those particular D.C. Code
offenses be concurrent to the sentences for the other D.C. Code
offenses. The District Court did not misapply the D.C.
Voluntary Sentencing Guidelines for the D.C. offenses.
Fourth, Thorpe argues that he should not have received a
longer sentence than his co-defendant Knight. But Thorpe
acknowledges that he has a more significant criminal history
than Knight. The District Court did not abuse its discretion by
sentencing Thorpe to a longer term of imprisonment than
Knight. See 18 U.S.C. § 3553(a)(6).
Fifth, Thorpe claims that the District Court impermissibly
increased his sentence after the sentencing hearing. He is
incorrect. At the sentencing hearing, the District Court stated
unequivocally: It “is the judgment of the Court that Aaron
Thorpe is committed to the custody of Bureau of Prisons for
300 months, 25 years.” Joint Appendix at 215. The District
Court went on to list the count-by-count breakdown of the
sentences for each offense and the ways in which those
sentences would run consecutively or concurrently. It is true
that the oral pronouncement of that count-by-count breakdown
then added up to 20 years, rather than 25 years. Joint
Appendix at 215-16. Two days later, however, the District
Court entered an order clarifying that ambiguity in the oral
pronouncement. The order repeated that Thorpe’s sentence
was 25 years’ imprisonment. Joint Appendix at 220. It then
listed each offense and the consecutive/concurrent designation
for each. This time, those designations did add up to 25 years.
Through its written order, the District Court permissibly
clarified an ambiguity in the oral pronouncement. The oral
“pronouncement of the sentence constitutes the judgment of
the court.” United States v. Love, 593 F.3d 1, 9 (D.C. Cir.

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2010). But a district court may use a written judgment to
clarify an ambiguous oral pronouncement. Id. We “will not
remand for the district court to correct a written judgment that
clarifies – rather than contradicts – the oral pronouncement of
the sentence.” Id. So it is here.
We affirm Thorpe’s sentence.
III
Finally, Knight and Thorpe contend that their attorneys
provided ineffective assistance during plea negotiations. As
is this Court’s usual practice, we remand to the District Court
so that it may consider their ineffective assistance claims in the
first instance.
To succeed on a claim of ineffective assistance, a
defendant “must show not only that counsel’s performance was
deficient, but that he suffered prejudice as a result.” United
States v. Solofa, 745 F.3d 1226, 1229 (D.C. Cir. 2014) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
This Court allows defendants to raise ineffective
assistance claims on direct appeal, as well as in collateral
proceedings. As the Supreme Court has stated, however,
ineffective assistance claims “ordinarily will be litigated in the
first instance in the district court, the forum best suited to
developing the facts necessary to determining the adequacy of
representation during an entire trial.” Massaro v. United
States, 538 U.S. 500, 505 (2003). This Court’s typical
practice on direct appeal, therefore, is to remand “colorable”
claims of ineffective assistance to the district court. See
United States v. Mohammed, 693 F.3d 192, 202 (D.C. Cir.
2012). We do so without first substantially analyzing the
merits of those claims. See id. The Court does not

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“reflexively remand,” but neither does it “hesitate to remand
when a trial record is insufficient to assess the full
circumstances and rationales informing the strategic decisions
of trial counsel.” Id.
Here, the defendants allege that their attorneys were
ineffective in pre-trial plea negotiations in the D.C. Superior
Court. The defendants claim that they never actually rejected
the Government’s plea offers and that the plea offers were
never explained to them. Knight and Thorpe say that they
would have accepted the wired plea offers if their attorneys had
properly explained the offers’ terms and conditions.
The Government asserts that a remand is unnecessary in
this case because the defendants cannot establish prejudice.
In some circumstances, even without hearing from trial
counsel, we can determine that there was no possibility of
prejudice from counsel’s allegedly deficient performance. In
those cases, we may affirm because a remand would serve no
purpose. See United States v. Pole, 741 F.3d 120, 126-27
(D.C. Cir. 2013). This is not such a case. The Government
argues that the record conclusively establishes that neither
defendant ever intended to plead guilty. The Government
blames Knight and Thorpe for not contradicting the
prosecutor’s in-court statement in the Superior Court
proceedings that both defendants had rejected a plea offer.
But the Government’s argument does not conclusively resolve
the point because the defendants’ in-court silence could be
consistent with the defendants’ claim that they did not
understand the plea offers.
The Government also notes that Thorpe’s attorney
confirmed in open court, with the defendants present, that a
plea offer had been extended. But again, the record does not
reveal anything about plea discussions between the defendants

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and their Superior Court attorneys – or a lack thereof. We
cannot fairly interpret Knight’s and Thorpe’s in-court silence,
or the comments of Thorpe’s attorney, without first hearing
from Knight’s and Thorpe’s Superior Court attorneys.
We therefore remand “to allow the district court to address
the claims – and the government’s responses – in the first
instance.” Id. at 127. In doing so, we conclude only that
Knight’s and Thorpe’s claims of ineffective assistance are
colorable, not that they have demonstrated ineffective
assistance.
* * *
We remand the case to the District Court so that the
District Court may address Knight’s and Thorpe’s claims of
ineffective assistance of counsel in the first instance. In all
other respects, we affirm the judgment of the District Court.
So ordered.

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