author: MARCUS, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carlington CRUICKSHANK, Defendant-Appellant.
    No. 14-13754
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 09/20/2016

      Roberta Josephina Bodnar, U.S. Attorney’s Office, Orlando, FL, Arthur Lee Bentley, III, Joseph K. Ruddy, U.S. Attorney’s Office, Tampa, FL, for Plaintiff-Ap-pellee.
    Tracy N. DaCruz, The DaCruz Law Firm, PLLC, Rosemary Cakmis, Donna Lee Elm, Federal Public Defender’s Office, Orlando, FL, Jenny L. Devine, Mara Allison Guagliardo, Federal Public Defender’s Office, Tampa, FL, for Defendant-Appellant.
    Before MARCUS and WILLIAM PRYOR, Circuit Judges, and DAVIS, District Judge.

       Honorable Brian J. Davis, United States District Judge for the Middle District of Florida, sitting by designation.

   MARCUS, Circuit Judge:

On February 11, 2014, the U.S. Coast Guard recovered 171 kilograms of cocaine from a vessel known as the “Venus” in international waters in the Caribbean Sea. Carlington Cruickshank, one of two men aboard the vessel, was later convicted and sentenced to 324 months’ imprisonment for one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine while aboard a vessel, in violation of 21 U.S.C. § 960(b)(1)(B)(ii) and 46 U.S.C. §§ 70503(a), 70506(a) and (b), and one count of aiding and abetting possession with intent to distribute five kilograms or more of cocaine while aboard a vessel, in violation of 18 U.S.C. §2, 21 U.S.C. § 960(b)(l)(B)(ii), and 46 U.S.C. §§ 70503(a), 70506(a). On appeal, Cruick-shank argues that: (1) jurisdiction did not exist to prosecute him under the Maritime Drug Law Enforcement Act (“MDLEA”) and, moreover, the MDLEA is unconstitutional; (2) the district court erred in denying his motion for judgment of acquittal based on insufficient evidence of mens rea; (3) the district court erred by establishing jurisdiction under the MDLEA by relying on a United States Department of State certification, and by removing from the jury the factual question concerning jurisdiction; and (4) the district court clearly erred in denying him a minor-role reduction under U.S.S.G. § 3B1.2(b). After careful review of the parties’ briefs and the record, and having had the benefit of oral argument, we affirm in part, and vacate and remand in part.

I.

First, we reject Cruickshank’s claims that jurisdiction did not exist to prosecute him under the MDLEA and that the MDLEA is unconstitutional. We review a district court’s interpretation and application of a statute concerning its subject-matter jurisdiction de novo, but we review factual findings with respect to jurisdiction for clear error. United States v. Campbell, 743 F.3d 802, 805 (11th Cir.), cert. denied, — U.S. —, 135 S.Ct. 704, 190 L.Ed.2d 438 (2014). We review the legal question of whether a statute is constitutional and constitutional objections de novo. Id. Under our prior precedent rule, we are bound to follow a prior binding precedent unless and until it is overruled by us sitting en banc or by the Supreme Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).

The MDLEA prohibits knowingly or intentionally possessing a controlled substance, with the intent to distribute, on-board any vessel subject to the jurisdiction of the United States. 46 U.S.C. § 70503(a)(1) (“While on board a covered vessel, an individual may not knowingly or intentionally ... possess with intent to manufacture or distribute, a controlled substance.”). It was enacted under Congress’s authority provided by the Felonies Clause, U.S. Const. Art. I, §8, cl. 10, to define and punish felonies committed on the high seas. Campbell, 743 F.3d at 805. Pursuant to the MDLEA, “a vessel without nationality” is “subject to the jurisdiction of the United States” and it defines a stateless vessel as including “a vessel aboard which the master or individual in charge makes a claim of registry that is denied by the nation whose registry is claimed.” 46 U.S.C. § 70502(c)(1)(A), (d)(1)(A).

In Campbell, the United States Coast Guard had intercepted the defendant while aboard a vessel in the internar tional waters off the eastern coast of Jamaica. 743 F.3d at 804. The vessel lacked all indicia of nationality: it displayed no flag, port, or registration number. Id. Although one of the individuals aboard the vessel claimed it was registered in Haiti, the government of Haiti told the Coast Guard that it could neither confirm nor deny the registry. Id. Campbell, the defendant, argued that Congress had exceeded its authority under the Felonies Clause of the Constitution when it enacted the MDLEA. We disagreed, recognizing that “[w]e have always upheld extraterritorial convictions under our-drug trafficking laws as an exercise of power under the Felonies Clause.” Id. at 809-10 (quotation omitted). As we explained, a criminal act does not need a nexus to the United States in order to be criminalized under the MDLEA “because universal and protective principles support its extraterritorial reach.” Id. at 810. In other words, because the Felonies Clause empowers Congress to punish crimes committed on the high seas, and bécause “the trafficking of narcotics is condemned universally by law-abiding nations,” we rejected the argument “that it is fundamentally unfair for Congress to provide for the punishment of persons apprehended with narcotics on the high seas.” Id. (quotations omitted). This is especially true, we explained, when vessels on the high seas “are engaged in conduct that has a potentially adverse effect and is generally recognized as a crime by nations that have reasonably developed legal systems.” Id. (quotations omitted).

We also explained in Campbell that the “Due Process Clause of the Fifth Amendment does not prohibit the trial and conviction of an alien captured on the high seas while drug trafficking.” Id. at 812 (citing United States v. Rendon, 354 F.3d 1320, 1326 (11th Cir. 2003)). In our view, the MDLEA “provides clear notice that all nations prohibit and condemn drug trafficking aboard stateless vessels on the high seas.” Id.

In this case, all of Cruickshank’s arguments concerning the MDLEA are foreclosed by our prior precedent. In Campbell, we reaffirmed that Congress did not exceed its authority by enacting the MDLEA; we determined that no jurisdictional nexus was required under the MDLEA; and we concluded that convictions under the MDLEA do not violate the Due Process Clause of the Constitution. See id. at 809-10, 812. Because we are bound by our prior precedent concerning all of' Cruickshank’s challenges to the MDLEA, his arguments necessarily fail.

II.

We are also unpersuaded by Cruickshank’s claim that the district court erred in denying his motion for judgment of acquittal based on insufficient evidence of mens rea. We review de novo whether sufficient evidence supports a conviction, drawing all reasonable factual inferences from the evidence in favor of the verdict. United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009), Evidence is sufficient if a reasonable trier of fact could have found that it established guilt beyond a reasonable doubt. Id. In rebutting the government’s evidence, a defendant must do more than put forth a reasonable hypothesis of innocence, because the issue is whether a reasonable jury could have convicted, not whether a conviction was the only reasonable result. Id. at 840-41.

To establish a conspiracy, the government must prove beyond a reasonable doubt that two or more persons entered into an unlawful agreement to commit an offense, that the defendant knew of the agreement, and that he voluntarily became a part of the conspiracy. United States v. Tinoco, 304 F.3d 1088, 1122 (11th Cir. 2002); United States v. Alvarez, 837 F.2d 1024, 1027 (11th Cir. 1988). The defendant’s presence on a vessel, though not determinative, is a material factor supporting his participation in a conspiracy relating to that vessel. Tinoco, 304 F.3d at 1122-23. “A.defendant’s presence becomes more significant when the value of the contraband is high, as it is highly improbable that drug smugglers would allow an outsider on board a vessel filled with millions of dollars worth of contraband.” Id. at 1123 (quotation omitted). When we review a conspiracy or a possession-with-intent-to-distribute conviction involving a vessel laden with narcotics, we consider, among other things: (1) the probable length of the voyage; (2) the size of the contraband shipment; (3) the necessarily close relationship between captain and crew; (4) whether the contraband was in plain view, could be smelled, or was in a place where a person on a vessel would ordinarily discover it; and, (5) other factors, including diversionary maneuvers designed to evade detection and apprehension, attempts to flee, incul-patory and false exculpatory statements made after apprehension, witnessed participation as a crewman, and the absence of supplies or equipment necessary to the vessel’s intended use. Id.; United States v. Cruz-Valdez, 773 F.2d 1541, 1546-47 (11th Cir. 1985).

“In order to convict a defendant for possession with intent to distribute a controlled substance, the government must prove knowing possession and an intent to distribute.” United States v. Camacho, 233 F.3d 1308, 1317 (11th Cir. 2000). The law recognizes that a defendant may constructively possess a controlled substance if he exercises some measure of control over the contraband, either exclusively or in association with others. Tinoco, 304 F.3d at 1123. The defendant’s intent to distribute may be inferred from a variety of factors, including whether the government seized a large quantity of controlled substances. Id. In order to prove that the defendant aided and abetted an offense, the government must establish that: (1) someone else committed the substantive offense; (2) the defendant committed an act that contributed to and furthered the offense; and (3) the defendant intended to aid in the commission of the offense. Camacho, 233 F.3d at 1317.

After thoroughly reviewing this record, we are satisfied that the evidence was sufficient to establish beyond a reasonable doubt Cruickshank’s criminally culpable mens rea or state of - mind to convict him on both charges — conspiracy to possess with intent to distribute five kilograms or more of cocaine while aboard a vessel, and aiding and abetting possession with intent to distribute five kilograms or more of cocaine while aboard a vessel. Among other things, Cruickshank’s co-defendant, Carlos Acosta, testified that Cruickshank was one of two individuals who had been hired,to transport drugs on a vessel from Colombia to Jamaica. Acosta said that, when he met Cruickshank and told him drugs were on the boat, Cruick-shank. stated that he was comfortable with that. The other -individual who was supposed to show up to assist with the operation did not, leaving only Acosta and Cruickshank to transport the drugs. Acosta admitted that Cruickshank arrived after the cocaine had been loaded onto the Venus, so Cruickshank had nothing to do with loading the cocaine onto the vessel, reconstructing the Venus to cany the drugs, fueling, or attending any of the meetings leading up to the trip. Acosta said, however,' that Cruickshank programmed the vessel’s GPS devices with Acosta’s help. In so doing, they configured the GPS devices to transport the ship and the contraband across the Caribbean Sea from Colombia to Jamaica, with waypoints near Jamaica. According to Acosta, once they reached the- -waypoint closest to Jamaica, someone was going to meet them and take the drugs.

As for their capture, Acosta said that he and Cruickshank had become concerned during, the trip when they realized a Coast Guard helicopter was flying above the Venus. They eventually stopped the vessel when the Coast Guard fired warning shots. Before a Coast Guard officer from a nearby vessel boarded the Venus, they threw grocery items, garbage, and clothes overboard in an attempt to get rid of evidence that they were coming from Colombia, and one of the men took off articles of clothing and washed. Cruickshank suggested that they tell the Coast Guard that he and Acosta were searching for another vessel, but they did not decide who would admit to being in charge.

Ian Groom, a lieutenant with the U.S. Coast Guard, and Andre Trinidad, a machinery technician specializing in counter-drug enforcement with the Coast Guard, also testified. Lieutenant Groom explained that in the pre-daylight hours of February 11, 2014, he had been co-piloting a Coast Guard helicopter when he acquired visibility of a vessel operating without navigational lights. Groom noticed the vessel stopping and starting, and, after spotting the helicopter, the vessel increased its rate of speed and the two people onboard began throwing overboard unidentified objects, which appeared to be clothing, a bucket, and a jug of water. Officer Trinidad, who was aboard a vessel :that Lieutenant Groom had directed to the Venus, testified that he then boarded the Venus to question the occupants. Trinidad relayed that, in response to his questions, Cruickshank said that he was in charge and that the vessel was Jamaican. Trinidad asked for documentation to support that the boat was Jamaican, but there was no supporting documentation. Cruickshank also told Trinidad that they had left Jamaica to assist a friend who had run out of gas, and were planning to return to Jamaica. Cruickshank said that they had not found the friend, and he did not identify the friend or the name of his vessel. Trinidad contacted his supervisor, and Trinidad Was eventually informed that Jamaica was not accepting the claim of nationality. At that point, Trinidad’s supervisors made a request to assimilate the vessel without nationality, which meant U.S. law would be imposed and the vessel would be subject to all U.S. laws.

Trinidad testified that the captured vessel was the Venus, and that Cruickshank and Acosta were on board. Trinidad also said that a scan performed on the Venus tested positive for cocaine, and that he found hidden kilogram-size packages of cocaine after drilling a hole in a bench on the vessel. Ultimately, authorities found a han-dheld GPS device, a handheld two-way radio, and approximately 171 kilograms of cocaine on the Venus.

As the evidence at trial showed, while Cruickshank was on the Venus, it was operated without lights, it attempted evasive maneuvers when the Coast Guard helicopter was overhead, and the occupants threw items overboard to conceal their starting point. Evidence also revealed that Cruickshank had said he was comfortable with the drugs being on the boat, he programmed the vessel’s GPS devices, he came up with a cover story for the authorities, and he ultimately told the Coast Guard that he was in charge and gave the false statement about why they were at sea. There was more than sufficient evidence to establish Cruickshank’s guilt beyond a reasonable doubt on both charges.

III.

We are also unpersuaded by Cruickshank’s claims that the district court erred by establishing jurisdiction under the MDLEA in two respects: (1) by relying on a United States Department of State certification, in violation of the Confrontation Clause of the Constitution; and (2) by removing from the jury the question of fact concerning jurisdiction, in violation of Alleyne v. United States, 570 U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Normally, we review whether hearsay statements are testimonial de novo. United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010). But if a defendant (like Cruickshank) did not raise an objection based on his confrontation right at trial, we review a confrontation claim for plain error. United States v. Charles, 722 F.3d 1319, 1322 (11th Cir. 2013). To show plain error, the'defendant must establish (1) an error, (2) that is plain or obvious, and (3) that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). And; if a defendant satisfies these three conditions, we may exercise our discretion to recognize the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. An error is plain when it contradicts precedent from the Supreme Court or our Court directly resolving thé issue. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). “Errors [] affect a substantial right of a party if they have a ‘substantial influence’ on the outcome of a case or leave ‘grave doubt’ as to whether they affected the outcome of a case.” Turner, 474 F.3d at 1276 (quotation omitted). But “where the effect of an error on the result in the district court is uncertain or indeterminate,” the . defendant has not met his burden of demonstrating prejudice for purposes of plain error review. United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005). And, finally, as we said earlier, we review constitutional issues de novo. Campbell, 743 F.3d at 805.

The Sixth Amendment’s Confrontation Clause prevents the admission of a witness’s testimonial statement when the witness does not appear at trial, unless he is unavailable to testify and the defendant had a prior opportunity to cross-examine him. Id. at 806. However, a United States State Department certification of jurisdiction under ‘the MDLEA does not implicate the Confrontation Clause because it does not affect the guilt or innocence of a defendant. See id. at 806-09.

In Alleyne, the Supreme Court revisited two of its prior cases: (1) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which requires that, other than the fact, of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt; and (2) Harris v. United States, 536 U.S. 545, 567-68, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), which held that judicial fact-finding that increased the applicable statutory mandatory-minimum sentence was permissible under the Sixth Amendment. Alleyne, 133 S.Ct. at 2157-58. In Alleyne, the Supreme Court expressly overturned Harris because it was inconsistent with its decision in Apprendi, and held that any facts that increase the applicable statutory mandatory-minimum sentence for'a crime must be submitted to a jury and found beyond a reasonable doubt. Id. at 2155, 2163.

The MDLEA expressly provides that the United States’s jurisdiction over a vessel is not an element of the offense, and that jurisdiction is a preliminary question of law to be resolved by the district court. 46 U.S.C. § 70504(a) (“Jurisdiction of the United States with respect to a vessel subject to this chapter is not an element of an offense. Jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge.”). In Tinoco, we asked whether the MDLEA jurisdictional requirement raised “factual questions that traditionally would have been treated as elements of an offense under the common law, thereby triggering the constitutional safeguards provided by the Due Process Clause and the Sixth Amendment right to a jury trial.” 304 F.3d at 1107-08. Analyzing the common law, we held that the MDLEA’s jurisdictional requirement does not raise a factual issue that, under the common law, would have been considered an element of the offense. Id. at 1108. This is because the jurisdictional requirement is intended to act as a diplomatic courtesy,- and does not bear on the individual defendant’s guilt. Id. at 1108-09. Therefore, because the jurisdictional requirement under the MDLEA is not an element of the offense, neither the Due Process Clause nor the Sixth Amendment to the Constitution are implicated when the jurisdictional requirement under the MDLEA is not proven to the satisfaction of a jury. Id. at 1111-12.

As an initial matter, we review Cruick-shank’s Confrontation Clause argument for plain error because he failed to raise it at any time before the district court, although we review his Alleyne argument de novo, since he raised that one in the district , court. But under any standard of review, plain or otherwise, there was no Confrontation Clause violation. A United States Department of State certification of jurisdiction under the MDLEA does not implicate the Confrontation Clause because it does not affect the guilt or innocence of a defendant. Campbell, 743 F.3d at 809. Nor did the district court err by rejecting Cruickshank’s Alleyne argument, since we’ve squarely held the jurisdictional requirement is not an element of the offense, need not be determined by a jury, and does not violate the Due Process Clause or the Sixth Amendment. 46 U.S.C. § 70504(a); Tinoco, 304 F.3d at 1108, 1111-12. These claims are without merit.

IV.

As for Cruickshank’s last claim, however — that the district court erred in denying him a minor-role reduction under U.S.S.G. §3B1.2(b) — we are compelled to vacate and remand for resen-tencing. We review a district court’s denial of a role reduction for clear error. United States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010). Clear error review is deferential, and “we will not disturb a district court’s findings unless we are left with a definite and firm conviction that a mistake has been committed.” United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010) (quotations omitted). The district court’s “choice between two permissible views of the evidence” as to the defendant’s role in the offense will rarely constitute clear error “[s]o long as the basis of the trial court’s decision is supported by the record and does not involve a misapplication of a rule of law.” United States v. De Varon, 175 F.3d 930, 945 (11th Cir. 1999) (en banc) (emphasis and quotation omitted). The defendant bears the burden of establishing his minor role in the offense by a preponderance of the evidence. Bernal-Benitez, 594 F.3d at 1320.

The Sentencing Guidelines provide for a two-level decrease to a base offense level if a defendant was a minor participant in the criminal activity. U.S.S.G § 3B 1.2(b). A minor participant is one “who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal.” Id. cmt. n.5. Our leading case concerning the minor-role reduction — De Varón — has long instructed sentencing courts analyzing a claim for a minor-role reduction to consider “first, the defendant’s role in the relevant conduct for which [he] has been held accountable at sentencing, and, second, [his] role as compared to that of other participants in [his] relevant conduct.” 175 F.3d at 940. As the en banc Court explained in De Varón, “[t]hese principles advance both the directives of the Guidelines and our case precedent by recognizing the fact-intensive nature of this inquiry and by maximizing the discretion of the trial court in determining the defendant’s role in the offense.” Id. at 934.

In De Varón, the defendant was a drug courier — she had ingested and smuggled 70 heroin-filled pellets into the United States from Colombia. Id. We recognized that “when a drug courier’s relevant conduct is limited to her own act of importation, a district court may legitimately conclude that the courier played an important or essential role in the importation of those drugs.” Id. at 942-43. However, we declined to “create a presumption that drug couriers are never minor or minimal participants, any more than that they are always minor or minimal”; rather, we held that “the district court must assess all of the facts probative of the defendant’s role in her relevant conduct in evaluating the defendant’s role in the offense.” Id. at 943. We offered examples of relevant factors for the court to consider, including the “amount of drugs, fair market value - of drugs, amount of money to be paid to the courier, equity interest in the drugs, role in planning the criminal scheme, and role in the distribution.” Id. at 945. We stressed that this is “not an exhaustive list,” nor is “any one factor ... more important than another,” especially since the determination is highly fact-intensive and “falls within the sound discretion of the trial court.” Id. The en banc Court in De Varón ultimately concluded that it was well within the sentencing court’s discretion to deny the minor-role adjustment to the defendant, after it determined that- De Varón was central to the importation scheme, that she had carried a substantial amount of high-purity heroin on her person, that it was unclear from the record that she was less culpable than the other described participant in the scheme, and that De Varón had furnished $1,000 of her own money to finance the smuggling enterprise. Id. at 945-46.

The Sentencing Commission, through Amendment 635 to the Sentencing Guidelines, adopted our approach in De Varón that “§ 3B1.2 does not automatically preclude a defendant from being considered for a mitigating role adjustment in a case in which the defendant is held accountable under § 1B1.3 solely for the amount of drugs the defendant personally handled.” See U.S.S.G. App. C, Amend. 635, Reason for Amendment. As the Commission explained, “[i]n considering a § 3B1.2 adjustment, a court must measure the defendant’s role against the relevant conduct for which the defendant is held accountable at sentencing, whether or not other defendants are charged.” Id.

More recent amendments- to the Sentencing Guidelines — that went into effect after the sentencing hearing in this case— further clarify the factors for a court to consider for a minor-role adjustment, and still continue to embrace the approach we took in De Varón. In November 2015, the Commission added the following language to Application Note 3(C) for § 3B1.2:

In determining whether [a defendant warrants a minimal or minor participant] or an intermediate adjustment, the court should consider the following non-exhaustive list of factors:
(i) the degree to which the defendant understood the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;
(iv) the nature .and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit from the criminal activity.
For example, a defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline.
The fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative. Such a defendant may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.

U.S.S.G. Supp.' App. C, Amend. 794. Not surprisingly, this non-exhaustive list of factors includes many of the same factors we delineated in De Varón, including the defendant’s role in planning and carrying out the scheme, as well as the amount the defendant stood to be paid. De Varon, 175 F.3d at 945.

Although this Court applies the version of the Guidelines in effect on the date of sentencing, when reviewing the district court’s application of the Guidelines, we consider clarifying amendments retroactively on appeal regardless of the date of sentencing. United States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011). As we’ve explained, an amendment to the commentary, and not the text, of the Guidelines “suggests] that it clarifies” the guideline “rather than substantively alters it.” Id. at 1187. Thus, the government in this case argues correctly that Amendment 794 merely clarified the factors to consider for a minor-role adjustment, and did not substantively change § 31B.2. Accord United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016) (holding Amendment 794 was intended as a clarifying amendment and it therefore applies retroactively on direct appeal). The Sentencing Commission, moreover, did not describe Amendment 794 as making a substantive change, but stated that it provides “additional guidance to sentencing courts.” See U.S.S.G. Supp. App. C, Amend. 794, Reason for Amendment. In other words, Amendment 794 merely explains the meaning of the terms in the original guideline. See Jerchower, 631 F.3d at 1184.

Our task, therefore, is to review the district court’s ruling in light of the Guidelines, our case law, and clarifying Amendment 794. For starters, we note that the.evidence at trial painted a fairly full picture of the role that Cruickshank took in the offense — among other things, he was involved in programming the vessel’s route, in evading authorities, and in obstructing the Coast Guard’s inquiry. Moreover, the record makes clear that the district court discussed many of the factors our Court and the Sentencing Commission have laid out as important to the minor-role determination. These factors included the quantity of drugs Cruickshank transported, Cruickshank’s expectation of “premium pay,” Cruickshank’s role as one of only two people on board to take the vessel from Colombia to Jamaica, and the dangerousness of the offense of “transporting] a large cargo of contraband in a transoceanic voyage from one continent to another” — a “voyage [that] necessitate^] the intervention of the United States military to defeat it,” and that intentionally or unintentionally endangered many lives. DE101 at 17-19.

However, one portion of the district court’s decision gives us pause — its suggestion that the quantity of cocaine being transported on the Venus was so large that no participant in the scheme could ever have been eligible for a minor-role reduction. At one point the court said that the quantity of drugs was “so large that any participant in [the case] can’t be said to be engaged in minor activity.” DE101 at 14. Later, it reiterated that “171 kilograms of high-quality cocaine, almost pure co-came in this circumstance, that will be, as the druggies say, stepped on two or three or four times is not even available for a minor role under the language of Rodriguez De Varón.” DE101 at 18 (emphasis added). But De Varón stressed the fact-intensive nature of the inquiry, and the sentencing court’s role in assessing the totality of the circumstances, where no one factor is “more important than another.” 175 F.3d at 945; id. at 943 (“[T]he district court must assess all of the facts probative of the defendant’s role in her relevant conduct in evaluating the defendant’s role in the offense.”) (emphasis added). Moreover, Amendment 794 clarified that a defendant could be considered for a minor-role adjustment in many circumstances, none of which turn on drug quantity. See, e.g., Amendment 794 (A defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks “should be considered for an adjustment under this guideline.”) (emphasis added); id. (A defendant who performed an essential or indispensable rolé in the criminal activity “may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.”) (emphasis added).

Indeed, although nothing in De Varón or Amendment 794 precludes a district court from considering the drug quantity with which the defendant was involved as an indicator of his role, we think it was legal error for the district court to say that this is the only factor to be considered in a case like this one. While it is possible that the district court did not rely solely on drug quantity in making its minor-role determination, the consequences for Cruickshank’s advisory sentencing range could be significant — a potential six-level reduction to his offense level, see U.S.S.G. §§ 2Dl.l(a)(5), 3B1.2(b). Thus, we think the wisest course of action is to vacate the district court’s decision and remand for resentencing. On remand, the district court should perform an inquiry based on the totality of circumstances, taking into account the variety of factors laid out in De Varón and Amendment 794.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

      . While the Court indicated in De Varón that we would not "foreclose the possibility” in a drug courier case "that amount of drugs may be dispositive- — in and of itself — in the extreme case,” we allowed for that possibility because "the amount of-drugs in a courier’s possession — whether very large or very small — may be the best indication of the magnitude of the courier’s participation in the criminal enterprise.” 175 F.3d at 943. De Varón involved a defendant who had swallowed the contraband to transport it, so the amount in her possession was actually on her person and perhaps was more likely to be indicative of her relative role in the offense. But this is not that kind of case. Here, there is nothing in the record to suggest that the amount of drugs was indicative of the magnitude of Cruickshank’s participation in the crime — to the contrary, he did not load the drugs on the vessel, reconstruct the vessel, fuel the vessel, attend the planning meetings for the trip, or otherwise appear to have any role concerning the quantity of drugs aboard.


source: Caselaw Access Project

license: Public Domain

text:
    Kevin J. SULLIVAN, Petitioner-Appellee, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellant.
    No. 15-13993
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 09/20/2016

      Michael Robert Ufferman, Michael Uf-ferman Law Firm, PA, Tallahassee, FL, for Petitioner-Appellee.
    Bryan G. Jordan, Pam Bondi, Attorney General’s Office, Tallahassee, FL, for Respondent-Appellant.
    Before MARCUS and WILLIAM PRYOR, Circuit Judges, and DAVIS, District Judge.

       Honorable" Brian J. Davis, United States District Judge for the Middle District of Florida, sitting by designation.

   MARCUS, Circuit Judge:

The Secretary of the Florida Department of Corrections (“Secretary”) appeals the district court’s grant of federal habeas corpus relief to petitioner Kevin Sullivan based on Sullivan’s claim that he received ineffective assistance of counsel when his trial attorney advised him to turn down the State’s plea offer and proceed to trial based on a fundamental misunderstanding of the relevant state law. After thorough review, and with the benefit of oral argument, we conclude that the petitioner was denied the effective assistance of counsel in violation of the Sixth Amendment and, therefore, affirm.

I.

A.

On July 26, 2003, the State of Florida filed a traffic citation that was subsequently amended by Information in the Circuit Court for Bay County, charging Kevin Sullivan with: fleeing and attempting to elude a law enforcement officer, Fla Stat. §316.1935(3); possession of cocaine, Fla. Stat. § 893.13; and possession of drug paraphernalia, Fla. Stat. § 893.147. The case proceeded to a one-day jury trial on May 4, 2005, at which Sullivan was represented by Charles Bennett Bollinger, III, Esq.

The State presented evidence that, on July 26, 2003, Sullivan led several deputy sheriffs on an extended car chase during which he ran red lights and stop signs, drove into oncoming traffic, and nearly struck pedestrians. Eventually, Sullivan crashed into a curb and the deputies boxed in his car. Sullivan opened his door to throw something out, at which time an officer was able to grab him. With the help of several other officers, Sullivan was finally subdued. The deputies brought him to the jail for booking, which refused to accept him because he appeared intoxicated or impaired. Sullivan was taken to the hospital, where he said that he had been using cocaine. Deputies found cocaine in Sullivan’s car, and the item he had thrown out during the chase was discovered to be a crack pipe. To one witness, Sullivan appeared “crazy,” not “in the right state of mind,” and “strung out on drugs.” Two of the arresting officers thought that Sullivan seemed mentally deranged.

During the charge conference at the end of the trial, the prosecutor asked for a jury instruction that voluntary intoxication is not a defense. Indeed, a Florida statute passed in 1999, four years before Sullivan’s crime and nearly six before his trial, provides exactly that. See Fla. Stat. § 775.051 (“Voluntary intoxication resulting from the consumption, injection, or other use of alcohol or other controlled substance as described in chapter 893 is not a defense to any offense proscribed by law.”). Defense counsel Bollinger denied that he was attempting to present a voluntary intoxication defense, and agreed with the prosecutor that the standard jury instructions provided that voluntary intoxication is not a defense. Instead, Bollinger sought a jury instruction regarding an insanity defense based on the testimony that Sullivan was not in his right mind. However, the trial court said that Sullivan had not given the State notice that he would be asserting an insanity defense, as required by state law, see Fla. R. Crim. P. 3.216(b), and that if he wanted to raise that defense, he would have to move for a mistrial.

After Bollinger and Sullivan conferred, Sullivan waived his right to move for a mistrial and consented to moving forward without presenting an insanity defense. In closing argument, Bollinger conceded that Sullivan was guilty of the possession charges and argued that Sullivan’s actions in fleeing from the police were not willful, intentional, or knowing because the evidence showed that Sullivan was mentally deranged during and after his flight.

The trial court instructed the jury that neither voluntary intoxication nor insanity is a defense to any of the offenses leveled against Sullivan. The jury found Sullivan guilty as charged. On July 15, 2005, the trial court sentenced Sullivan as an Habitual Felony Offender to thirty years in prison on the fleeing charge, and to concurrent sentences of five years and time served on thé cocaine and drug paraphernalia charges, respectively.

B.

Sullivan' retained the Harper & Harper Law Firm (the “Harper Firm”) and Robert Harper, III, Esq. (“Harper”), to represent him on direct appeal and in his state post-conviction attack. On August 31, 2006, Sullivan’s conviction was affirmed on direct appeal. Sullivan v. State, 937 So.2d 128 (Fla. Dist. Ct. App. 2006) (table). No ineffective assistance of counsel claim was raised on direct appeal because Florida requires that ineffective assistance claims generally be raised on collateral review -pursuant to Florida Rule of Criminal Procedure 3.850. Smith v. State, 998 So.2d 516, 522 (Fla. 2008), as revised on denial of reh’g (Dec. 18,2008).

In order to assist Harper in preparing his post-conviction motion pursuant to Rule 3.850, Sullivan sent many letters to the Harper Firm and Harper. Of particular relevance to this appeal, Sullivan’s letters repeatedly suggested that Harper consider raising a Sixth Amendment ineffective assistance of counsel claim, specifically alleging that trial counsel provided ineffective assistance by attempting to present a voluntary intoxication defense, even though voluntary intoxication had been abolished as a defense four years before Sullivan was arrested. Thus, for example, on June 17, 2007, Sullivan wrote to Harper that, after trial, Bollinger had encouraged Sullivan to file an ineffective assistance claim arguing that “[h]is trial strategy could be turned around to prove ineffectual.” Again, around six weeks later, Sullivan again wrote to Harper to express his opinion that Harper’s proposed claims were not very strong and asking him to explore other claims, including Bollinger’s “attempting to present a voluntary intoxication defense through the back door.”

On September 22, 2007, Sullivan wrote that Bollinger’s statement to the trial court during the charge conference that voluntary intoxication was not his intended defense was untrue. In fact, during pretrial conversations, Bollinger told Sullivan that voluntary intoxication was his intended defense, but that he would present it through a “back-door” approach, which meant that he would not request a voluntary intoxication instruction from the trial court and would instead encourage the jury to “infer” that Sullivan could not have informed the requisite intent to be convicted of fleeing because he was high on cocaine. Sullivan explained that Bollinger “got caught at this ridiculous attempt at a legally impermissible defense by the State, and therefore had to state on the record to the Court, in an attempt to avoid the devastating limiting instruction for voluntary intoxication, that this was not his intended defense.” In a May 10, 2008 letter, Sullivan again explained that, prior to trial, Bollinger had “informed [Sullivan] that he would be pursuing a ‘Back-Door’ voluntary intoxication defense, even though it was no longer a legally recognized defense.”

On July 11, 2008, Harper wrote back to Sullivan to explain why he did not think they should pursue an ineffective assistance of counsel claim challenging counsel’s decision to pursue voluntary intoxication, which was a “non-existent defense.” Harper wrote that raising that claim would effectively require them to admit that there was no defense to Sullivan’s case, thereby “shooting [them]sélves in the foot” because they would be unable “to prove prejudice as required by Strickland[ v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].” Instead, Harper explained, they would argue that Bollinger had failed to provide any meaningful adversary testing of the prosecution’s case at all and, therefore, that his representation amounted to structural error under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Finally, in a July 28, 2008 letter, Sullivan thanked Harper for his hard work on the Rule 3.850 motion, but again expressed concern that the motion did not challenge Bollinger’s decision to raise a voluntary intoxication defense.

Harper filed an original Rule 3.850 motion in the Circuit Court for Bay County on August 15, 2008, and then filed an amended motion on September 11, 2008, raising four claims of ineffective assistance of counsel: (1) trial counsel was ineffective for failing to subject the prosecution’s case to any meaningful adversarial testing under Cronic because counsel conceded guilt on two counts and failed to raise an insanity defense; (2) trial counsel was ineffective for failing to call Sullivan as a witness; (3) trial counsel was ineffective for failing to present mitigating evidence during the “penalty phase”; and (4) trial counsel was ineffective for waiving the affirmative defense of insanity without Sullivan’s consent.

The Harper firm then withdrew from the case, and the amended motion proceeded to an evidentiary hearing at which Sullivan was represented by Michael Uf-ferman, Esq., his current federal habeas counsel. At the evidentiary hearing, Sullivan testified and called witnesses, including his trial counsel Bollinger. Bollinger admitted that, prior to Sullivan’s trial, he was unaware that voluntary intoxication had been abolished as a defense. Sullivan then filed- a post-hearing memorandum, arguing for the first time that trial counsel was ineffective for raising a voluntary intoxication defense.

The state trial court denied Sullivan’s amended Rule 3.850 motion on December 2, 2010. As relevant to the present appeal, the trial court found that Sullivan had not timely raised an ineffective assistance of counsel claim challenging Bollinger’s use of the voluntary intoxication defense. Sullivan’s Rule 3.850 motions made no mention of the claim, and he did not raise it until after the evidentiary hearing. Therefore, the court refused to consider that issue because it was “not timely raised under Rule 3.850(b).” The trial court’s denial was summarily affirmed. Sullivan v. State, 93 So.3d 1019 (Fla. Dist. Ct. App. 2012) (table).

Sullivan filed a second Rule 3.850 motion through attorney Ufferman on May 16, 2012, alleging that Bollinger’s testimony at the August 27, 2010 evidentiary hearing— that voluntary intoxication was the theory of defense at trial — constituted newly discovered evidence. He further alleged that the State had offered him a ten-year plea agreement prior to trial and that, had he known, that voluntary intoxication was not a viable defense, he would have accepted the plea agreement. The state trial court found that the claim was not based on newly discovered evidence and was, therefore, untimely. That decision, too, was summarily affirmed on April 5,2013.

C.

Meanwhile, on May 17, 2012, while his second Rule 3.850 motion was pending in state court, Sullivan filed his initial petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida, pursuant to 28 U.S.C. § 2254. Sullivan amended his federal habe-as petition twice. His second amended petition asserted five claims for relief, only one of which is relevant to this appeal: trial counsel provided ineffective assistance of counsel in violation of the Sixth Amendment by defending his case based on the legally impermissible defense of voluntary intoxication instead of advising him to accept the State’s pretrial plea offer (the “IAC-trial claim”).

The Secretary argued that the ineffective-assistance-of-counsel' claim was procedurally defaulted because Sullivan had failed to raise it in a timely manner in state court. A federal habeas court cannot reach the merits of a claim that was procedurally defaulted in state court unless the petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Sullivan conceded that the IAC-trial claim was procedurally defaulted, but argued that the district court should .excuse his procedural default under Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), because post-conviction counsel had provided ineffective assistance by failing to raise the underlying IAC-trial claim in his original Rule 3.850 motion. Under Martinez, post-conviction counsel’s failure to raise a claim in a state collateral proceeding can provide cause and prejudice to excuse a procedural default if: the procedural default is caused by post-conviction counsel’s unconstitutionally ineffective assistance; the collateral proceeding in which post-conviction counsel erred was the first opportunity' the defendant had to raise the procedurally defaulted claim; and the procedurally defaulted claim has at least “some merit.” See id. at 1318.

The case was referred to a magistrate judge, who held an evidentiary hearing to address whether post-conviction counsel was ineffective for failing'to raise the IAC-trial claim and whether the ineffectiveness of counsel claim was meritorious. Bollinger, Brian Kelley (the trial prosecutor), Harper, and Sullivan testified.

Bollinger testified that, before Sullivan’s trial, the prosecutor had extended a plea offer of eleven years in prison. In his many years of practicing before the trial judge in this case. Judge Don Sirmons, Bollinger had never seen him reject a plea deal to which both parties agreed. Bollinger said that, prior to trial in this case, he told Sullivan- that he .intended to -defend his case using a voluntary intoxication defense, and that, at the time he conveyed the plea offer to. Sullivan, he was not aware that voluntary intoxication had been abolished as a defense in Florida. In fact, Bollinger testified that, at the time he conveyed the plea offer to Sullivan, he told Sullivan that they had a “very good chance” of winning the case at trial based on the voluntary intoxication defense. Therefore, in spite of the State’s intent to seek an enhanced habitual offender sentence, Bollinger advised Sullivan to reject the prosecution’s plea offer and proceed to trial. Bollinger, who had previously represented Sullivan in another trial that resulted in a jury verdict of acquittal, testified that Sullivan always -followed his advice and recommendations. However, had he known prior to trial that voluntary intoxication was not an authorized defense, Bol-linger said that he would have advised Sullivan to accept the plea offer because he faced thirty years if convicted at trial.

The trial prosecutor, Mr. Kelley, testified that he, and the previous prosecutor who had been working on Sullivan’s case before him, had extended Sullivan plea offers, which ranged from twenty years down to twelve or thirteen years. He agreed with Bollinger that Judge Sirmons most likely would have accepted a twelve- or thirteen-year sentence pursuant to a plea.

Post-conviction counsel Harper testified that he had decided against raising the IAC-trial claim, challenging trial counsel’s decision to employ a voluntary intoxication defense, for two reasons. First, he said, he would not have been able to establish the prejudice element of that claim because, during the time that he represented Sullivan, he was not aware that the prosecution had extended a pretrial plea offer to Sullivan and Sullivan had not mentioned any plea offer. He relied on Sullivan to explain why he had gone to trial,, and because Sullivan did not mention any plea offers, the plea offer made by the State “was never on [his] radar.” In preparing Sullivan’s appeal and- Rule 3.850 motion, Harper never spoke to Bollinger- — in fact, he consciously chose not to contact trial counsel to speak about the case because he “didn’t want to hear the BS.”

Second, Harper explained, he felt that he would be violating his ethical obligations if he raised the IAC-trial claim because doing so would have required him to “lie” and say that there had been a pretrial plea offer — when he had no knowledge of one — or that Sullivan and Bollinger had been unaware that voluntary intoxication was not a legitimate defense. He thought that Sullivan and his attorney had known before trial that the voluntary intoxication defense had been abolished, but had raised that defense anyway because Sullivan had been “caught red-handed” and the State did not want to extend a plea offer to Sullivan. Harper stated that he “100 percent, no question” believed that Sullivan knew before trial that voluntary intoxication was not a valid defense, and he did not want to “trick” himself into believing that Sullivan had not known. He acknowledged, however, .that he could not recall any conversation in which Sullivan said that he knew, pretrial, that the defense of voluntary intoxication had been abolished; he also admitted that he did not talk to anyone else (including trial counsel) to verify or confirm his suspicion. In fact, when asked whether he took “any steps whatsoever to see if there was any basis for [his] ethical concerns,” he said that he simply decided not to raise the IAC-trial claim.

Finally, Sullivan testified that, a few days before trial, Bollinger visited him in jail and told him that the prosecution had extended a ten-year plea offer. Bollinger also advised him that he would be pursuing a voluntary intoxication defense at trial. Sullivan said that he was aware the State would seek an Habitual Offender sentence, meaning that he was facing thirty years in prison if convicted of fleeing at trial. On the morning of trial, he said, Bollinger was “very confident” in the voluntary intoxication defense and advised him to “proceed to trial and to turn down the plea offer.”

Sullivan testified that he always followed Bollinger’s advice, and did so here. He said that, prior to trial, he was not aware that voluntary intoxication had been abolished as a defense, and he only learned that it had been abolished when the prosecutor asked for an instruction informing the jury that voluntary intoxication was not a valid defense. Sullivan stated that, had he known prior to trial that voluntary intoxication was not a valid defense, he would have accepted the prosecution’s pretrial plea offer — even if it was, as the prosecutor had testified, for twelve years in prison. He added that he had never discussed the pretrial plea offer with Harper because he did not know it was relevant and Harper did not ask him about any plea.

On June 15, 2015, the magistrate judge issued a Report and Recommendation finding that post-conviction counsel had been ineffective for failing to raise Sullivan’s IAC-trial claim and, moreover, that the IAC-trial claim was meritorious.' Regarding the ineffective assistance of post-conviction counsel, the magistrate judge found as a fact that Harper did not know that the State had extended a plea offer to Sullivan, and explained that Harper could have reasonably decided not to raise the IAC-trial claim if, in fact, the State had not made any plea offer to Sullivan. However, in light of the undisputed testimony that a plea offer had been made, the “critical inquiry” was whether Harper’s investigation of the existence of a plea offer was objectively reasonable under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Based on the evidence presented at the hearing, the magistrate judge found as fact that “Harper did not take any additional steps [beyond speaking to Sullivan] to investigate the existence of the plea offer.” Harper didn’t ask Sullivan about a plea directly, nor did he contact trial counsel or the prosecutor to investigate. Moreover, the magistrate judge found as fact that Harper never took any steps to verify his ethical concerns that Sullivan or Bollinger would lie to him about whether they knew the voluntary intoxication defense had been abolished before trial. The magistrate judge determined that it was “not reasonable, without more than a feeling,, to assume that Bollinger would lie without at least contacting him and exploring the issue.” Ultimately, the magistrate judge concluded that post-conviction counsel’s failure to investigate the existence of a plea offer fell below Strickland’s objective standard of reasonableness and, furthermore, that the failure to investigate had prejudiced Sullivan because there was a reasonable probability that the state courts would have granted post-conviction relief had the plea been discovered and the IAC-trial claim raised. Accordingly, Sullivan had shown cause and prejudice to excuse the procedural default of the IAC-trial claim. See Martinez, 132 S.Ct. at 1318.

Turning to the merits of the ineffective assistance of trial counsel claim, the magistrate judge found credible Sullivan’s and Bollinger’s testimony that they were unaware the voluntary intoxication defense had been abolished prior to trial. The magistrate judge determined that Bollinger had rendered ineffective assistance by proceeding to trial based on a defense that had been abolished five years earlier. Moreover, the magistrate judge explained, Bollinger’s failure to know the law had changed meant that he failed to understand the importance of the plea negotiations and, therefore, unreasonably advised Sullivan to reject the state’s twelve-year plea offer. The magistrate judge held that Sullivan was prejudiced by this deficiency because Bollinger’s erroneous advice caused him to reject the pretrial plea offer, concede guilt on the possession charges, and, ultimately, be sentenced to thirty years in prison, instead of the twelve years in prison he would have received had he accepted the plea. Accordingly, the magistrate judge determined that Sullivan was entitled to habeas relief on the IAC-trial claim.- The magistrate judge rejected Sullivan’s remaining claims for relief.

The district court adopted the magistrate judge’s 'Report and Recommendation over the objection of the Secretary, and ordered the' Secretary to “re-offer the [twelve-yeár] pretrial plea agreement to Petitioner ... within NINETY (90) DAYS from the date of this order. If petitioner accepts the offer, it will be left to the state trial court to exercise its discretion in making a determination with regard to Petitioner’s convictions and an appropriate sentence, taking into account all of the circumstances in the case.” The Secretary timely appealed.

II.

Of the many determinations made by the magistrate judge and adopted by the district court, the Secretary challenges only one: whether post-conviction counsel’s investigation into the existence of a pretrial plea offer was objectively unreasonable under Strickland. When reviewing the grant of a §2254 petition, we review questions of law and mixed questions of law and fact, including ineffective assistance of counsel claims, de novo, and review findings of fact for clear error. Bellizia v. Fla. Dep’t of Corr., 614 F.3d 1326, 1328-29 (11th Cir. 2010).

In order to establish that post-conviction counsel’s failure to raise the IAC-trial claim constituted unconstitutionally ineffective assistance under the Sixth Amendment, Sullivan was required to show that (1) his counsel’s performance was deficient and “fell below an objective standard of reasonableness,” and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In this appeal, we need only address the deficient performance prong of Strickland, which requires us to' determine “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052.

“Among the duties owed by minimally competent counsel is the duty to make reasonable investigations or to .make a reasonable decision that makes said investigations unnecessary.” Blankenship v. Hall, 542 F.3d 1253, 1273 (11th Cir. 2008). As the Supreme Court has explained:

strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the. limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. Moreover, we “must consider not only the quantum of' evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Counsel’s investigation does not fall below Strickland’s standard so long as “a reasonable lawyer could have decided, under the circumstances, not to investigate ... particular evidence.” Payne v. Allen, 539 F.3d 1297, 1316 (11th Cir. 2008) (quotation omitted).

As we see it, post-conviction counsel’s failure to take any step to investigate the IAC-trial'claim was objectively unreasonable in light of the information that Sullivan had provided him and, indeed, based on even the most cursory review of the trial record. For stárters, there were obvious red flags running through Harper’s correspondence-with Sullivan. Sullivan repeatedly told Harper that trial counsel had presented a defense that was not cognizable under Florida law. Moreover, simply by looking at the trial record, Harper could not have helped but be fully aware that trial counsel had defended Sullivan’s case based on a theory that had been abolished by the Florida legislature nearly six years before Sullivan’s trial. See Fla. Stat. § 775.051 (effective Oct. 1, 1999). Indeed, having been legally barred from presenting a voluntary intoxication defense or an insanity defense, trial counsel was left with virtually nothing to argue to the jury.

It is also abundantly clear that “[a]n attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.” Hinton v. Alabama, — U.S. —, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (2014). Trial counsel’s presentation of a voluntary intoxication defense long after it had been statutorily abolished clearly indicated a potentially meritorious ineffective assistance of counsel claim and screamed out for further inquiry. Instead, post-conviction counsel did nothing to investigate this potential claim, apart from reading Sullivan’s letters and speaking with Sullivan, primarily because he did not know the State had extended a pretrial plea offer and, therefore, thought that he would not be able to show that Sullivan was prejudiced by -counsel’s presentation of an illegal defense.

But Harper was plainly aware of information that would have led any reasonable attorney to inquire further about why Sullivan went to trial and why counsel presented a voluntary intoxication defense. See Wiggins, 539 U.S. at 527, 123 S.Ct. 2527. Nearly two years elapsed between Sullivan’s arrest and his trial, which suggests that there may have been some attempt to resolve the case without a trial. Indeed, the trial prosecutor’s testimony at the evidentiary hearing confirmed that there were multiple rounds of plea negotiations prior to trial. As Harper himself explained at the federal evidentiary hearing, a plea agreement is “the easiest, most obvious source to determine whether someone’s decision to go to trial was right or wrong.” Knowing what post-conviction counsel knew, any reasonable attorney would have made at least some minimal exploration of the IAC-trial claim, such as asking Sullivan directly whether he had received a plea offer, requesting the state attorney’s file or contacting the prosecutor to see whether a plea offer had been made, or, most importantly, speaking with trial counsel to ask why he had attempted to present a non-existent defense when his client was facing thirty years in prison. And any of these minimal steps would ultimately have uncovered the existence of the plea agreement and undoubtedly would have supported a finding of prejudice on account of trial counsel’s ineffective performance. Post-conviction counsel’s failure to take even one of these obvious and easily accomplished investigatory steps “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

The Secretary argues, nevertheless, that post-conviction counsel reasonably limited his investigation of this case, to communications with Sullivan. The Secretary says that,- based- on what Sullivan had told him, Harper reasonably believed that both Sullivan and trial counsel knew that the voluntary intoxication defense had been eliminated but chose to present it anyway because the State had refused to extend any plea offer so Sullivan had no option other than going to trial. As Harper put' it at the federal evidentiary hearing, he thought that by raising the ineffectiveness claim regarding voluntary intoxication, he would have “to lie” and say that there had been a pretrial plea offer “that never happened” or that the presentation of the voluntary intoxication defense ‘ was unreasonable even though it was “the only thing, in [Harper’s] opinion, that they had a chance to convince the jury.” He explained that he had “sized the case up” and thought that Sullivan and trial counsel “knew that they had some real problems with their case, and the only way to get out of this problem is to get in front of a jury and make it confusing” by presenting a voluntary intoxication defense. Therefore, the Secretary suggests, Harper reasonably believed that it would have been unethical to assert an ineffective assistance claim alleging that trial counsel did not know the voluntary intoxication defense had been abolished and that Sullivan had been prejudiced by the defense. We remain unpersuaded.

Harper’s ethical concerns in no way relieved him of his obligation to investigate this ineffective assistance claim. While one vague statement in one of Sullivan’s many letters could be read to suggest that he and trial counsel had known before trial that the voluntary intoxication defense had been eliminated, any reasonable attorney still would have inquired further. The essential question was whether trial counsel’s performance fell “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. And .to answer that question, Harper had to determine what trial counsel knew and why he chose to present the defense he presented.- Even if trial counsel knew that voluntary intoxication was not a legally cognizable defense, Harper should have investigated to determine whether trial counsel’s decision to present that defense was reasonable “in light of all the circumstances.” Id.

Moreover, for the reasons we’ve already explained, the fact that Sullivan didn’t mention any plea offer from the State in his letters to Harper didn’t absolve Harper of his duty to independently investigate that issue. There were clear indications in the trial record that would have led a reasonable attorney to inquire further whether there had been a pretrial plea offer. And it is counsel’s duty, not the defendant’s, to develop the relevant facts and to draw the defendant’s focus to the information that might be potentially relevant, as defendants who are not versed in the law will often not know what facts are relevant to a given legal claim. Indeed, Sullivan testified that he did not know that the existence of a plea agreement was important information, he was never asked, and he therefore did not mention it to Harper — and the magistrate judge credited his testimony. Again, Harper’s failure to take any step to solicit or uncover critical information concerning Sullivan’s decision to go to trial was objectively unreasonable.

The Secretary also argues that Harper reasonably relied on questioning tactics that had worked for him in the past in eliciting the existence of a plea agreement. As Harper explained at the evidentiary hearing, in past cases clients had “almost invariably told him about their pretrial plea offers without being directly asked. However, counsel’s obligation to conduct a reasonable investigation is not amenable to this type of one-size-fits-all approach. Even though counsel’s open-ended question may generally have worked to elicit the existence of a pleá agreement from other clients, it does not mean that it is always sufficient to do so — and plainly, it was not in this case. Indeed, Harper admitted that he doesn’t always rely exclusively on the client for information, and will sometimes speak to trial counsel. And if he had simply asked trial counsel Bol-linger anything about the strategies surrounding the defense, he would almost surely have learned that a plea offer had been tendered by the prosécution. The long and short of it is, in the peculiar circumstances of this case, with all of the red flags that we’ve detailed, any reasonable attorney would have done more' to investigate why Sullivan went to trial literally without a coherent defense.

The petitioner has established that he received ineffective assistance of counsel in violation of the Sixth, Amendment and, therefore, we affirm the judgment of the district court.

AFFIRMED.

      . Sullivan’s remaining four claims were that trial counsel provided ineffective assistance by (1) failing to investigate Sullivan’s mental health issues before trial, (2) improperly advising Sullivan to waive the trial court’s mis- . trial option, and (3) effectively failing to present any defense to the jury, and (4) that the state trial court erred by denying Sullivan’s motion to recuse, which was based on an alleged ex-parte communication between the trial judge and the prosecutor.

      . The magistrate judge found that the State’s final plea offer had been twelve years in prison.

      . The Secretary does not challenge the magistrate judge’s conclusion that, if post-conviction counsel’s investigation had been constitutionally deficient, then Sullivan sustained prejudice.

      . In a May 10, 2008 letter, Sullivan wrote that, prior to trial, trial counsel told him that “he would be pursuing a ‘Back-Door’ voluntary intoxication defense, even though it was no longer a legally recognized defense.”