Osley: Counsel not ineffective in failing to advise of mandatory minimum

In Osley v. U.S., No. 11-14989 (April 11, 2014), the Court affirmed the denial of a motion under 28 U.S.C. § 2255 that alleged that counsel was ineffective in failing to advise the defendant during plea negotiations that his sex trafficking of a minor offense carried a statutory mandatory minimum. During plea negotiations, Osley was informed that there was no mandatory minimum sentence for his offenses, a statutory maximum of life, and that the prosecution would ask for an 80 months sentence if he pled guilty, which would result in Osley facing as little as 59.5 months with good behavior. In reality, unbeknownst to Osley, because of a recent change in the statute, Osley was subject to 15-year mandatory minimum. Osley declined the plea offer and went to trial. The jury convicted him on all counts. At sentencing, Osley was subject on an advisory Guidelines sentence of 210- 262 months. Based on the nature of the crime and Osley’s lack of remorse, the Court varied upward and imposed a 365 months sentence. Rejecting Osley’s claim that his defense counsel was ineffective for having failed to inform him of the 15-year statutory minimum, the Court pointed out that Osley turned down a plea offer with a much lesser sentence. The Court said it was hard-pressed to accept the claim that Osley would have accepted a 15-year sentence, even had he known about this statutory minimum. The Court further noted that Osley could not establish that the district court would have accepted the lesser sentence, noting that the district court would necessarily have vacated a plea agreement that recommended a sentence below a mandatory minimum. The Court also found that Osley did not establish that his sentence would have been less severe, pointing out that the district court likely would have learned of the egregious circumstances surrounding the crime in the PSI, and therefore imposed as severe a sentence as it did after trial. The Court also rejected the claim that counsel was ineffective in failing to advise Osley that he was subject to a life term of supervised release, pointing out that Osley still went to trial knowing that he faced a life sentence. Finally, the Court rejected the claim that counsel was ineffective in failing to object to “double counting” in the imposition of separate enhancements, one based on a Guideline cross-reference, another based on a Guideline specific characteristic, that accounted for the harm Osley caused. The Court found that one enhancement was for “sexual abuse of the victim,” and the other was for the “aggravated nature of that abuse.” In addition, even if double counting occurred, this would not have changed the result because the district court would have imposed the same sentence even without the alleged double counting.