United States of America v.  Louis Efrain Cooper

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-7131 
LOUIS EFRAIN COOPER,
Defendant-Appellant. 
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
John Preston Bailey, Chief District Judge.
(3:04-cr-00021-JPB-JES-1; 3:05-cv-00108-JPB-JES)
Argued: January 26, 2010
Decided: August 16, 2010
Before WILKINSON, NIEMEYER, and MICHAEL,
Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Wilkinson and Judge Michael joined.

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OPINION
ARGUED: Brendan S. Leary, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Wheeling, West Virginia, for Appel-
lant. Paul Thomas Camilletti, OFFICE OF THE UNITED
STATES ATTORNEY, Martinsburg, West Virginia, for
Appellee. ON BRIEF: Sharon L. Potter, United States Attor-
ney, Wheeling, West Virginia, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
In this proceeding under 28 U.S.C. § 2255, Louis Cooper
maintains that his counsel provided him constitutionally defi-
cient legal representation in failing to consult with him about
taking an appeal.
Cooper pleaded guilty to two drug trafficking offenses and
a related firearms offense, without the benefit of a plea agree-
ment. He submitted his plea pursuant to North Carolina v.
Alford, 400 U.S. 25, 37 (1970), consenting to punishment
even though unwilling to admit his part in the acts constitut-
ing the offenses, and the district court accepted the plea.
After objecting to portions of the presentence report, Coo-
per and the government reached a sentencing agreement under
which Cooper withdrew his objections to the report and the
government agreed not to seek a sentencing enhancement for
Cooper’s managerial role in the drug offenses. Cooper and the
government also stipulated to a base offense level of 32 under
the Sentencing Guidelines, which, with a criminal history cat-
egory I, would subject Cooper to a Guidelines sentence of 121
to 151 months’ imprisonment for the drug trafficking counts.
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Accepting the stipulation, the district court sentenced Cooper
to the low end of the Guidelines range, imposing a sentence
of 121 months’ imprisonment for the drug trafficking counts
and the mandatory 60-month consecutive sentence for the
firearms count.
After sentencing, Cooper never requested that his counsel,
S. Andrew Arnold, Esquire, file an appeal, and Arnold never
consulted with Cooper on whether to file an appeal.
In this § 2255 proceeding, Cooper requests that his sen-
tence now be vacated on the ground that he received ineffec-
tive assistance of counsel when Arnold failed to consult with
him about taking an appeal. The district court denied the peti-
tion.
We affirm. Because Cooper repeatedly expressed his desire
to have the criminal proceeding concluded, received the best
possible sentence he could have received under the agreement
he entered into with the government, and had no nonfrivolous
issues to appeal, we conclude that Cooper has not established,
as required by Roe v. Flores-Ortega, 528 U.S. 470 (2000),
that Arnold was constitutionally ineffective for failing to con-
sult with him about an appeal or that Cooper was prejudiced
by Arnold’s failure to consult with him.
I
On March 5, 2004, after Cooper delivered approximately
9.2 grams of cocaine to a customer with the understanding
that the customer would pay for the cocaine later, the cus-
tomer agreed to serve as an informant for law enforcement
officers. Under the supervision of the officers, the informant
then paid Cooper $1,000 for the cocaine two days later.
On March 10, 2004, Cooper, along with two confidential
informants, traveled from Mineral County, West Virginia, to
Winchester, Virginia, to purchase approximately 80 grams of
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cocaine from an individual known as "Carlos." After complet-
ing the purchase, Cooper was arrested on the return trip while
stopped at a convenience store in Capon Bridge, West Vir-
ginia. Law enforcement officers had observed the drug trans-
action in Winchester and had followed the vehicle to Capon
Bridge. Cooper was searched incident to the arrest, and offi-
cers found a Kel-Tec Model P-11 9-millimeter handgun in
Cooper’s waistband and the 80 grams of cocaine in a cup in
the backseat of the vehicle, near where Cooper had been sit-
ting.
Cooper was subsequently indicted for one count of possess-
ing cocaine with intent to distribute and for one count of dis-
tributing cocaine, in violation of 21 U.S.C. § 841. He was also
indicted for one count of using and carrying a firearm during
and in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1). Following his indictment, S. Andrew
Arnold, Esquire, was appointed to represent Cooper.
Initially, Cooper planned to plead guilty to one drug traf-
ficking count and the firearms count, pursuant to a plea agree-
ment with the government. During the plea colloquy,
however, the district court became concerned that Cooper’s
answers indicated that he believed he was not guilty of the
crimes. Accordingly, the district court suspended the colloquy
to allow Cooper to withdraw his plea or to consider pleading
pursuant to North Carolina v. Alford, 400 U.S. 25, 37 (1970)
(holding that "[a]n individual accused of a crime may volun-
tarily, knowingly, and understandingly consent to the imposi-
tion of a prison sentence even if he is unwilling or unable to
admit his participation in the acts constituting the crime"). A
few days later, when the hearing was resumed, Cooper
entered an Alford plea, without the benefit of a plea agree-
ment, to all three counts of the indictment, and the court
accepted the plea. During the course of the plea colloquy, the
district court advised Cooper that his right to appeal "will be
restricted to the jurisdiction of the Court, the voluntariness of
the guilty plea, the effective representation of your lawyer,
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and the application of the Sentencing Guidelines in this case,"
and Cooper responded that he understood the restrictions.
The presentence report prepared for Cooper outlined the
offense conduct and presented the probation officer’s calcula-
tion of the sentencing range under the Sentencing Guidelines.
The report indicated that, based on the drug quantities
involved in the relevant conduct, the base offense level for
Cooper was 32, to be increased two levels for Cooper’s mana-
gerial role over four individuals, pursuant to U.S.S.G.
§ 3B1.1(c), for a total offense level of 34. Cooper objected to
the presentence report, specifically (1) to the factual circum-
stances attributed to him, especially in view of his Alford plea,
(2) to the calculation of drug quantities in the relevant con-
duct, (3) to the two-level enhancement for his managerial
role, and (4) to the determination that he should not receive
a reduction in the offense level for acceptance of responsibil-
ity. He also made a motion for a downward departure from
the Sentencing Guidelines based on the ownership of the fire-
arm, his lack of criminal history, and his role in the offenses.
At the sentencing hearing, the district court overruled two
of the objections and scheduled a continuation of the hearing
to receive evidence and rule on the remaining objections and
his downward departure motion.
At the outset of the second sentencing hearing, Cooper and
the government reported that they had reached an agreement
whereby Cooper would withdraw his objections to the presen-
tence report and his motion for a downward departure and
stipulate to the base offense level of 32, as calculated in para-
graph 41 of the presentence report. In exchange, the govern-
ment agreed not to seek an enhancement for Cooper’s
managerial role and stipulated to the offense level of 32.
Under this agreement, the Sentencing Guidelines range was
121 to 151 months’ imprisonment for the drug trafficking
counts and a mandatory consecutive 60-month sentence for
the firearms offense. Accepting the agreement, the district
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court imposed concurrent sentences of 121 months’ imprison-
ment, at the low end of the Guidelines range, on the drug traf-
ficking counts and a mandatory 60-month term of
imprisonment on the firearms count, to run consecutively to
the terms imposed on the drug trafficking counts. After
imposing the sentence, the district court advised Cooper of his
limited rights to appeal and informed him that if he wished to
appeal, he had to do so within 10 days of the entry of judg-
ment, which was October 28, 2004. Cooper never filed an
appeal.
Almost a year later, in October 2005, Cooper filed a motion
to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255, asserting, among other things, that Arnold pro-
vided him with ineffective assistance of counsel by failing to
consult with him about the possibility of taking an appeal. At
the evidentiary hearing on the motion conducted by a magis-
trate judge, Cooper testified that he had wanted to file an
appeal and that he had asked Arnold at the close of the sen-
tencing hearing to visit him the next day at the Eastern
Regional Jail. Cooper admitted, however, that he never
expressed a desire to appeal. He claimed that he did not have
time to do so before the marshals removed him from the
courtroom. He said that he had intended to ask Arnold to file
an appeal when Arnold visited him at the jail. According to
Cooper, Arnold responded that he would come to the jail the
next day after 1:00 p.m., but he never showed up. Cooper also
testified that he had tried to contact Arnold but that he could
not get through because Arnold’s office did not accept collect
calls.
Cooper also offered the testimony of his friend, Peter Zim-
merman, who stated that around the time Cooper was sen-
tenced, Cooper asked Zimmerman to help him contact
Cooper’s wife to get a message to Arnold. Zimmerman called
his own parents, who then patched in Cooper’s wife so that
Cooper could talk to her. As far as Zimmerman could remem-
ber, it was "for something for court or something."
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Arnold testified that he had no recollection of Cooper ask-
ing him to come by the jail the day after the sentencing hear-
ing and that he did not tell Cooper that he would visit him at
the jail. He acknowledged that he devoted no further time to
the case after the sentencing hearing.
Following the hearing on Cooper’s § 2255 petition, the
magistrate judge issued a report and recommendation that the
petition be denied. The magistrate judge noted that "[b]ecause
petitioner testified he intended to instruct Mr. Arnold to
appeal, he cannot claim that he was inadequately advised of
his right to appeal and did not know he had a right to appeal."
Thus, the magistrate judge concluded, "The only question is
whether Mr. Cooper instructed Mr. Arnold to appeal his con-
viction and sentence." After determining that Arnold’s testi-
mony was more credible than Cooper’s, the magistrate judge
found that "[b]ased upon petitioner’s waiver of appeal rights
in the plea agreement, after not waiving his right to appeal in
the proposed Alford plea, and the reduction in sentence result-
ing from the plea agreement for acceptance of responsibility
. . . the preponderance of the evidence is that petitioner did
not ask Mr. Arnold to file an appeal."
Cooper filed an objection to the magistrate judge’s report
and recommendation on the ground that the magistrate judge
had incorrectly concluded that Cooper had entered into a plea
agreement in which he had waived his appeal rights. The dis-
trict court agreed that Cooper had not entered into a plea
agreement containing a waiver of appeal but otherwise
adopted the report and recommendation, finding that Cooper
did not expressly ask his counsel to file an appeal. In addition,
the district court found that Arnold’s conduct did not fall
below an objective standard of reasonableness because "in
light of the stipulation between the parties at sentencing, the
Court’s instruction regarding petitioner’s limited rights to
appeal, the Court’s instruction regarding petitioner’s need to
file a notice of appeal, and the fact that petitioner never
requested an appeal to be filed, it cannot be said that a rational
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defendant would have desired an appeal to be filed." The
court accordingly denied Cooper’s § 2255 petition.
Pursuant to Cooper’s notice of appeal, we entered an order,
dated March 12, 2009, granting Cooper a certificate of
appealability on the issue of whether "counsel’s failure to
consult with Cooper about whether to appeal deprived Cooper
of the effective assistance of counsel."
II
In support of his claim of ineffective assistance of counsel,
Cooper argues that
Arnold had a reasonable belief that Cooper would
have wanted to file an appeal because Cooper
entered a plea straight-up to all three counts of the
indictment without a plea agreement. In addition,
Cooper maintained his innocence throughout the
case. As such, Cooper entered a guilty plea pursuant
to Alford . . . .
Cooper concludes therefore that Arnold’s failure to consult
with him about an appeal fell below an objective professional
standard of reasonableness.
To demonstrate ineffective assistance of counsel, a defen-
dant must show (1) that counsel’s representation "fell below
an objective standard of reasonableness," Strickland v. Wash-
ington, 466 U.S. 668, 688 (1984), and (2) that "the deficient
performance prejudiced the defense," id. at 687. In Roe v.
Flores-Ortega, 528 U.S. 470, 478 (2000), the Supreme Court
applied the first prong of Strickland to hold that the Sixth
Amendment generally requires counsel to consult with the
defendant regarding a direct appeal by "advising the defen-
dant about the advantages and disadvantages of taking an
appeal, and making a reasonable effort to discover the defen-
dant’s wishes." See also Frazer v. South Carolina, 430 F.3d
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696, 707 (4th Cir. 2005). But while the Court noted that it
"expect[s] that courts evaluating the reasonableness of coun-
sel’s performance . . . will find, in the vast majority of cases,
that counsel had a duty to consult with the defendant about an
appeal," it did not adopt a per se rule mandating consultation.
Flores-Ortega, 528 U.S. at 481. The Court explained:
We cannot say, as a constitutional matter, that in
every case counsel’s failure to consult with the
defendant about an appeal is necessarily unreason-
able, and therefore deficient. Such a holding would
be inconsistent with both our decision in Strickland
and common sense. For example, suppose that a
defendant consults with counsel; counsel advises the
defendant that a guilty plea probably will lead to a
2 year sentence; the defendant expresses satisfaction
and pleads guilty; the court sentences the defendant
to 2 years’ imprisonment as expected and informs
the defendant of his appeal rights; the defendant does
not express any interest in appealing, and counsel
concludes that there are no nonfrivolous grounds for
appeal. Under these circumstances, it would be diffi-
cult to say that counsel is "professionally unreason-
able," as a constitutional matter, in not consulting
with such a defendant regarding an appeal.
Id. at 479 (citations omitted) (emphasis in original).
Thus, Flores-Ortega articulates the rule that "counsel has
a constitutionally imposed duty to consult with the defendant
about an appeal when there is reason to think either (1) that
a rational defendant would want to appeal (for example,
because there are nonfrivolous grounds for appeal), or (2) that
this particular defendant reasonably demonstrated to counsel
that he was interested in appealing." 528 U.S. at 480. In deter-
mining whether a rational defendant would have wanted to
appeal, we consider important the facts concerning whether
the defendant’s conviction followed a trial or a guilty plea;
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whether the defendant received the sentence bargained for as
part of the plea; and whether the plea expressly reserved or
waived some or all appeal rights. Id.
When applying Flores-Ortega, our court has found a
breach of the Strickland duty usually because the defendant
said something to his counsel indicating that he had an inter-
est in appealing. See Bostick v. Stevenson, 589 F.3d 160, 162
(4th Cir. 2009) (defendant stated to his daughter, in open
court, "Don’t worry, I’ll get a[n] appeal, don’t worry"); Fra-
zer, 430 F.3d at 702 (defendant who received consecutive
sentences asked counsel to see "about having time run
together" immediately after being sentenced); Hudson v.
Hunt, 235 F.3d 892, 894 (4th Cir. 2000) (defendant asked
counsel "whether or not he could appeal" immediately after
he had been convicted by a jury); United States v. Wither-
spoon, 231 F.3d 923, 925 (4th Cir. 2000) (defendant told
defense counsel that he "would like [his] case reviewed by a
higher court" if the district court did not sustain any of his
objections (alteration in original)); see also United States v.
Poindexter, 492 F.3d 263, 265 (4th Cir. 2007) (finding inef-
fective assistance of counsel for failure to appeal where the
defendant unequivocally told his lawyer to file an appeal even
though the defendant waived his appellate rights). In this case,
however, Cooper gave no indication that he wanted to appeal.
We thus must determine, under the Flores-Ortega analysis,
whether the circumstances would reasonably have led counsel
to conclude that "a rational defendant would want to appeal,"
thus prompting counsel’s duty to consult. 528 U.S. at 480.
While Cooper does not contend that he told Arnold to
appeal, he argues that Arnold should have known that a ratio-
nal defendant in Cooper’s situation would have wanted to
appeal. Cooper emphasizes that he maintained his claim of
innocence to the charges through the entry of an Alford plea
and that he did not waive any of his appeal rights in the sen-
tencing agreement with the government. These facts alone,
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according to Cooper, should have been sufficient to obligate
Arnold to consult with Cooper about taking an appeal.
In the particular circumstances of this case, however, we
conclude that Arnold was justified in believing that a rational
defendant in Cooper’s situation would not want to appeal.
First, Cooper’s actions and words expressed repeatedly and
clearly a desire to have the proceedings concluded as quickly
as possible. In addition to entering an Alford plea, in which
Cooper accepted punishment for the crimes without admitting
the facts in order to avoid a trial, Cooper stated several times
during the plea colloquy that his purpose in pleading guilty
was to end the judicial proceedings as quickly as possible. He
stated, "I would like to finish this case," and "What’s impor-
tant to me is to have this case resolved. I would say, this case
has been a tragedy in my life." He also stated at different
times during the colloquy, "I need to give resolution to this
situation," and, "I would like to repeat that I would like to fin-
ish off this situation." Thus, not only did Cooper not say any-
thing that would have led Arnold to believe he was interested
in appealing, he affirmatively indicated to Arnold a strong
desire not to continue or prolong the case and to get it behind
him.
Second, because Cooper received the sentence he bargained
for with the government, his expectations had been met, and
no nonfrivolous grounds for appeal remained that would have
put Arnold on notice that a reasonable defendant would have
wanted to appeal. See Flores-Ortega, 528 U.S. at 479-80. Pur-
suant to the sentencing agreement reached by Cooper and the
government, the parties stipulated to a base offense level of
32, the government agreed not to seek an enhancement for
Cooper’s managerial role, and Cooper agreed to withdraw his
objections to the presentence report and his motion for a
downward departure. The district court thereafter properly
calculated Cooper’s Guidelines range for the drug offenses at
121 to 151 months’ imprisonment, in addition to the manda-
tory 60 months’ imprisonment for the firearms offense. Coo-
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per, having voluntarily withdrawn his objections to the
presentence report and his downward departure motion, no
longer challenged the calculation. The district court gave
Cooper a sentence at the low end of the Guidelines range and
even granted his request to recommend incarceration close to
his family in Los Angeles.
While it is true that Cooper’s Alford plea left open the pos-
sibility of appealing limited issues, none of those issues was
put into play by anything that reasonably observant counsel
would have noticed. The Alford plea was clearly a voluntary
plea entered by Cooper. Indeed, he justified requesting an
Alford plea by his desire to get the case behind him. More-
over, there was no suggestion that the district court lacked
jurisdiction. And, as to the sentence, Cooper received pre-
cisely what he had bargained for—a sentence at the low end
of the stipulated Guidelines range, along with the recommen-
dation that he be incarcerated near Los Angeles. In the end,
Arnold could reasonably believe that he had shaped a pro-
ceeding that not only was fair to Cooper but also accom-
plished everything Cooper wanted. Indeed, he could have
objectively concluded that Cooper received the best possible
outcome in the circumstances.
As the Supreme Court explained in Flores-Ortega, where
counsel consults with a client and establishes expectations
about the consequences that are likely to follow from a guilty
plea, it is "difficult to say that counsel is ‘professionally
unreasonable,’ as a constitutional matter, in not consulting
with such a defendant regarding an appeal," if (1) those
expectations are met, (2) the defendant does not express any
interest in appealing, and (3) counsel concludes that there are
no nonfrivolous grounds for appeal. See Flores-Ortega, 528
U.S. at 479 (citation omitted). These are precisely the circum-
stances in this case. Accordingly, we cannot say that Arnold
provided constitutionally ineffective assistance to Cooper in
failing to consult with him about the possibility of taking an
appeal.
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This is not to say that Arnold’s decision not to consult with
Cooper was the best decision in the circumstances. To be
sure, best practices would advise an attorney in Arnold’s posi-
tion to tie up any loose ends in the case by taking the simple
step of consulting with his client at the end of the proceed-
ings. Had Arnold done so in this case, he would have saved
both the courts and himself substantial time and resources.
Nonetheless, the inquiry under Strickland and Flores-Ortega
is not whether counsel made the best decision in the circum-
stances, but whether he made a reasonable decision. Under
the facts of this case, we cannot say that it was outside the
wide range of professionally competent representation for
Arnold not to have consulted with Cooper further.
III
While we rest our disposition on the first prong of
Strickland—that Arnold’s representation of Cooper was not
constitutionally deficient—we note also that Cooper’s claim
of prejudice would fare no better. While he categorically
claimed prejudice, he has provided no fact nor posited any
scenario to "demonstrate that there is a reasonable probability
that, but for counsel’s deficient failure to consult with him
about an appeal, he would have timely appealed." Flores-
Ortega, 528 U.S. at 484.
For the foregoing reasons, the judgment of the district court
denying Cooper’s § 2255 petition is
AFFIRMED.
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