In re: : Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2008 Decided May 30, 2008
No. 02-3008
I N RE : SEALED CASE
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Consolidated with 06-3059
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Appeal from the United States District Court
for the District of Columbia
(No. 96cr00053-01)
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Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant.
John P. Gidez, Assistant U.S. Attorney, argued the cause
for appellee.
Before: TATEL , BROWN, and KAVANAUGH , Circuit
Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: After pleading guilty to a two-count
indictment charging him with distribution of more than 50
grams of cocaine base and carrying a pistol without a license,
appellant received a 262-month sentence, which was at the
bottom of the guideline range given appellant’s status as a

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“career offender.” See U.S. SENTENCING GUIDELINES
M ANUAL § 4B1.1 (1997). After the sentencing hearing,
appellant met briefly with his attorney in the lock-up behind
the courtroom. During the meeting, defense counsel recalled,
“I told him of his right to appeal in 10 days. But I also told
him that at this point I don’t see any issues with regard to an
appeal because everything was according to sentencing
guidelines. But he need[ed] to contact me in order for me to
notice his appeal.” Hr’g Tr. at 20 (Oct. 14, 2003). When
asked how his client responded, the attorney said, “He wasn’t
responding. He was really disappointed at that point because
of the substantial sentence that he received. And at that point,
I told him to contact me if he wanted to appeal and I left.” Id.
According to the attorney, the meeting “was really fast. It
was probably perhaps two to three minutes I talked to him. I
believe the judge had another matter, so I didn’t want to take
too much time.” Id. at 22. Appellant made no contact with
counsel during the ten-day window, and counsel never filed a
direct appeal of the sentence.
Appellant challenged his sentence under 28 U.S.C. §
2255, arguing that his counsel provided ineffective assistance
by failing to file a notice of appeal after sentencing. See
generally Strickland v. Washington, 466 U.S. 668 (1984)
(setting standard for judging claims of ineffective assistance).
Specifically, appellant asserts that his attorney failed
adequately to consult with him regarding his appeal, as
contemplated by Roe v. Flores-Ortega, 528 U.S. 470 (2000).
Although we agree with appellant that the brief post-
sentencing conversation was insufficient to constitute a
consultation as that term is defined in Flores-Ortega, id. at
478, we nonetheless affirm the district court’s decision to
deny appellant’s section 2255 motion because no
nonfrivolous grounds for appeal existed.

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Under Flores-Ortega, when a defendant “neither instructs
counsel to file an appeal nor asks that an appeal not be taken,”
as was the case here, we ask “whether counsel in fact
consulted with the defendant about an appeal.” Id.
According to the Court, the term “consult” has a particular
meaning: “advising the defendant about the advantages and
disadvantages of taking an appeal, and making a reasonable
effort to discover the defendant’s wishes.” Id. Here, whether
or not defense counsel adequately advised appellant about the
relative advantages and disadvantages of appealing, he made
no effort to discover his client’s wishes regarding an appeal.
According to the credited testimony, appellant was distraught
over his sentence and essentially nonresponsive. “[A]t that
point,” the lawyer recalled, “I told him to contact me if he
wanted to appeal and I left.” Hr’g Tr. at 20. The lawyer
made no additional attempt “to discover the defendant’s
wishes” within the ten-day time limit. Flores-Ortega, 528
U.S. at 478. On these facts, we conclude that defense counsel
failed to consult under Flores-Ortega.
Failure to consult does not end the matter, however, for
in Flores-Ortega the Court expressly “reject[ed] a bright-line
rule that counsel must always consult with the defendant
regarding an appeal.” Id. at 480. Instead, the Court explained
that counsel’s constitutional duty to consult arises only “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.” Id.
Appellant argues that a nonfrivolous ground for appeal
existed: counsel could have argued that he was entitled to a
lower sentence under U.S. Sentencing Guidelines section
4A1.3, which allows courts to make downward departures

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from the applicable guideline range when a defendant’s
criminal history category substantially overrepresents the
seriousness of the defendant’s criminal history. U.S.
SENTENCING GUIDELINES M ANUAL § 4A1.3. We agree with
the government that this would have been a frivolous ground
for appeal. “[D]eparture under § 4A1.3 is only justified in the
rare and unusual case in which a defendant’s criminal history
category significantly overrepresents the seriousness of his
past conduct and future threat to society.” United States v.
Beckham, 968 F.2d 47, 55 (D.C. Cir. 1992). In light of
appellant’s criminal history, and given that he committed one
of the instant offenses while still on parole from one of his
previous felony convictions, there is nothing rare or unusual
about this case, and we cannot say that counsel’s failure to
request a departure constituted deficient performance. See
United States v. Johnson, 98 F. App’x 5, 7 (D.C. Cir. 2004)
(per curiam).
Having considered appellant’s other arguments and found
them without merit, we affirm the judgment of the district
court.
So ordered.

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