`
`PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 19-4104
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES OF AMERICA,
`
`
`
`
`
`PRECIAS K. FREEMAN,
`
`
`
`Plaintiff – Appellee,
`
`
`
`v.
`
`
`
`Defendant – Appellant.
`
`
`Appeal from the United States District Court for the District of South Carolina, at
`Spartanburg. Timothy M. Cain, District Judge. (7:17-cr-00079-TMC-1)
`
`
`
`
`Argued: October 30, 2020
`
`
`
`Decided: March 30, 2021
`
`
`
`Before GREGORY, Chief Judge, FLOYD, and QUATTLEBAUM, Circuit Judges.
`
`
`Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
`which Judge Floyd joined. Judge Quattlebaum wrote a dissenting opinion.
`
`
`
`
`ARGUED: Hannah Rogers Metcalfe, METCALFE & ATKINSON, LLC, Greenville,
`South Carolina, for Appellant. William Jacob Watkins, OFFICE OF THE UNITED
`STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF:
`Peter M. McCoy, Jr., United States Attorney, OFFICE OF THE UNITED STATES
`ATTORNEY, Columbia, South Carolina, for Appellee.
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`
`GREGORY, Chief Judge:
`
`Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has
`
`been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17
`
`years in prison for possession with intent to distribute hydrocodone and oxycodone in
`
`violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel
`
`initially submitted an Anders brief asking for the Court’s assistance in identifying any
`
`appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively
`
`reasonable and whether Freeman received ineffective assistance of counsel on the face of
`
`the record. On both grounds, we vacate Freeman’s sentence and remand this case for
`
`resentencing.
`
`I.
`
`Freeman pleaded guilty without the benefit of a plea agreement to an indictment
`
`charging her with possession with intent to distribute hydrocodone and oxycodone. 21
`
`U.S.C. §§ 841(a)(1) and 841(b)(1)(C). She was charged and sentenced for conduct
`
`occurring between October 2014 and October 2016. But as reflected in her criminal history
`
`and according to statements she made to the government and the court, Freeman’s opioid
`
`addiction and pattern of filling forged prescriptions in order to obtain opioids began in
`
`2000, when she was about 18 years old. During her years of addiction and criminal activity,
`
`there is no indication that Freeman was ever violent or associated with anyone engaged in
`
`violence. Most of the pills that she sold, including all of those sold between 2014 and
`
`
`
`2
`
`

`

`
`
`2016, were sold below market rate to the same woman. At the time of her arrest, Freeman
`
`was in considerable debt.
`
`Freeman was first prescribed opioids as a teenager after breaking her tailbone in the
`
`shower. In the most comprehensive interview regarding her conduct, Freeman told the
`
`government that the doctor for whom she worked at the time permitted her to write her
`
`own prescriptions for the pain medication Lortab, or hydrocodone, beginning with 30-pill
`
`prescriptions containing 5 milligrams of hydrocodone each.1 “[E]ver since then,” she told
`
`the government, she has been “hooked” on hydrocodone. Around 2001, while working at
`
`another medical practice and while still a teenager, Freeman started printing duplicate
`
`prescriptions for patients prescribed opioids and keeping one for herself. Once she filled
`
`these duplicate prescriptions, she would use half of the pills and sell the other half to an
`
`acquaintance who worked in a hospital as a lab technician. She eventually began writing
`
`forged prescriptions.
`
`Over time, Freeman’s fraudulent prescriptions contained more and more pills at
`
`higher and higher concentrations, with the amount of prescriptions she filled varying with
`
`her personal use of the drugs. By October 2014, the beginning of the period relevant to
`
`Freeman’s federal charge, Freeman told federal investigators that she was filling “one
`
`prescription per day, four to five days per week.” She used some of the pills and sold
`
`
`1 These facts principally emerge from a proffer interview memorialized by a Drug
`Enforcement Agency officer that was, according to the parties and the district court, meant
`to be the basis for Freeman’s accountability at sentencing.
`3
`
`
`
`

`

`
`
`others. By February 2015, her own use had increased to 60 to 80 tablets per day—more
`
`than half of the total pills from the forged prescriptions that she was filling.
`
`In 2008 and 2011, Freeman’s conduct resulted in state convictions for obtaining
`
`fraudulent prescriptions and related crimes. Her criminal record also shows similar state
`
`charges that the state declined to prosecute. All of Freeman’s prior conduct relates to using
`
`and selling opioids. Relevant to this appeal, Freeman was eventually arrested on state
`
`charges on October 2, 2016, after a Walgreen’s pharmacist recognized her and called
`
`police. She was then transported to a hospital, where she tested positive for opiates. That
`
`same day, state investigators went to interview Freeman at the hospital. She spoke to them
`
`after waiving her Miranda rights. While Freeman was incarcerated on the pending state
`
`charges, a federal grand jury returned an indictment charging her with possession with
`
`intent to distribute hydrocodone and oxycodone. §§ 841(a)(1) and 841(b)(1)(C).2
`
`While awaiting sentencing, Freeman spoke to the government pursuant to a standard
`
`proffer agreement. During this interview, Freeman conservatively estimated that she sold
`
`52,000 10-mg tablets of hydrocodone to her drug buyer between October 2014 and October
`
`2016. No agreement emerged from Freeman’s proffer. Instead, while she was awaiting
`
`sentencing and released on bond, Freeman left South Carolina with her family in
`
`September 2017. Shortly before she left, Freeman failed an instant drug test and admitted
`
`
`2 The indictment also states that Freeman “intentionally did combine, conspire,
`agree and have tacit understanding” with others to distribute hydrocodone and oxycodone,
`and cites that her conduct thus also violated 21 U.S.C. § 846 (Attempt and Conspiracy).
`But § 846 does not expose Freeman to any additional liability in this case, because the
`government has only held Freeman accountable for conduct that she herself admittedly
`committed in violation of §§ 841(a)(1) and 841(b)(1)(C).
`4
`
`
`
`

`

`
`
`she had taken Lortab. On the basis of the test, her probation officer sought to modify
`
`Freeman’s bond to require GPS monitoring, which was ordered by the court on September
`
`7, 2017. However, it does not appear from the record that Freeman left the jurisdiction due
`
`to this change in her probation. During this same time period, public records confirm that
`
`Freeman and her family were evicted from their apartment, and on September 7th or 8th
`
`began living in hotels near their hometown of Shelby, North Carolina, about 40 miles away
`
`from their former home in South Carolina.3 As Freeman explained to the district court at
`
`her sentencing, the family—including four children and a pregnant Freeman—left because
`
`they “didn’t have anywhere to go.” Freeman was rearrested in March 2018. Between
`
`September and March, Freeman remained in and around Shelby with her family. Freeman
`
`also gave birth during this time. The docket does not reflect that Freeman missed any court
`
`dates or ever attempted to evade arrest between September 2017 and March 2018.
`
`In July 2018, a few months after she was rearrested, Freeman appeared before the
`
`district court for a sentencing hearing. The government presented evidence that she had
`
`obtained 59 fraudulent prescriptions, each between 90 and 120 pills, including evidence
`
`that she filled five prescriptions on December 1, 2014, and 13 prescriptions on December
`
`
`3 In the presentence report (PSR), the court probation officer notes Freeman’s
`address and states that she was living with her parents at the time that the PSR was first
`prepared. The docket number of the family’s eviction case appears in the record and
`corresponds to a public eviction case under the name of “Freeman” and relating to the same
`address and apartment number listed as Freeman’s in the PSR. The eviction was final on
`September 8, 2017. The government does not argue that the eviction did not take place or
`that the court records are inaccurate. This Court takes judicial notice of the fact of the
`eviction, which is a matter of public record. See Massachusetts v. Westcott, 431 U.S. 322,
`323 n.2 (1977); Hall v. Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004).
`5
`
`
`
`

`

`
`
`30, 2014. But the probation officer determined that Freeman was responsible for filling
`
`far more than just those prescriptions. Based on Freeman’s initial statement to state police,
`
`given while she was hospitalized and positive for opioids, the probation officer estimated
`
`that Freeman had successfully filled one prescription per day every day for two years, 365
`
`days a year. She accordingly held Freeman responsible for obtaining with intent to
`
`distribute 87,600 tablets of hydrocodone—the equivalent, for purposes of sentencing, of
`
`5,869.2 kilograms of marijuana. The presentence report (PSR) did not reduce this number
`
`to reflect Freeman’s own use of the pills, which could not be the basis for a charge of
`
`possession with intent to distribute. The final calculated drug weight corresponded to an
`
`offense level of 32. Overall, Freeman’s calculated offense level was 34.
`
`At the hearing, Freeman raised questions about the drug weight assessed in the PSR.
`
`She informed the district court that she was having a hard time contacting her counsel and
`
`that she disagreed with her counsel about how best to proceed with her case. In response,
`
`the district court continued the hearing, and Freeman’s family hired another attorney to
`
`represent her. The district court noted that the government would in the meantime revisit
`
`the drug weight amount based on the information in Freeman’s proffer, noting that the drug
`
`weight could rise or fall accordingly, and the government agreed. The agreement to revise
`
`the PSR on the basis of the proffer was even memorialized on the docket.
`
`The probation officer did revise the PSR, but not based on Freeman’s proffer. In
`
`the new report, the probation officer “conservative[ly]” estimated that Freeman
`
`successfully obtained and intended to distribute two prescriptions of 120 10-mg pills every
`
`day of the week for two years, 365 days per year, again with no reduction for Freeman’s
`6
`
`
`
`

`

`
`
`own significant personal use of the pills. That amount of drugs—175,200 pills—is the
`
`equivalent, for purposes of sentencing, of 11,738.4 kilograms of marijuana. The probation
`
`officer accordingly assigned Freeman a base offense level of 34. This amount was
`
`significantly higher than the 52,000-pill estimate that Freeman had conservatively
`
`estimated she had sold in her proffer. The probation officer also assigned Freeman a two-
`
`level increase in offense level for obstruction of justice based on her moving from the
`
`jurisdiction, and did not recommend a three-level decrease in offense level that Freeman
`
`otherwise would have received for accepting responsibility by admitting her conduct and
`
`cooperating with law enforcement. Freeman’s recalculated overall offense level was 36.
`
`At Freeman’s rescheduled sentencing hearing, the government and the defense both
`
`stated (incorrectly) that a review of the proffer had led to the revised PSR’s increase in
`
`Freeman’s assigned drug weight. Prior to the hearing, Freeman’s new attorney had lodged
`
`objections to the PSR related to Freeman’s failed drug test; the government’s lack of
`
`evidence for its calculated drug weight; and the facts relating to obstruction of justice. But
`
`on the day of the hearing he waived these objections, apparently to Freeman’s surprise and
`
`counter to their agreed-upon strategy. Freeman’s counsel told the district court that he was
`
`waiving the objections because they “might be considered as minimal”; were “not going to
`
`change, in essence, what the charges are”; and (incorrectly) would not “reduce the number
`
`that is relevant to this Court.”4 When the district court asked Freeman if she was OK with
`
`
`4 In a post-sentencing filing, counsel also attributed the decision to waive the
`objections to various factors, some of them incomprehensible. These included the
`government’s “inability to prosecute for several years. Agent versus Defendant in a matter
`(Continued)
`
`
`
`7
`
`

`

`
`
`waiving her objections, she initially responded, “I’m not sure.” After talking to her
`
`counsel, Freeman agreed to the waiver.
`
`Instead of pursuing the objections, Freeman’s counsel relied entirely on a motion to
`
`enter a drug court diversion program (the “BRIDGE program”) that could have permitted
`
`Freeman to enter treatment instead of going to prison. Emails in the record suggest that
`
`counsel did not understand how to obtain entry into the program or what the district court
`
`would need in order to grant a motion to enter it; he wrote in an email to the program’s
`
`supervising probation officer that he was “not completely aware of the parameters of the
`
`drug court.” Nothing in the record suggests that Freeman was ever screened for drug court
`
`by probation; indeed, as counsel wrote in the motion requesting that she be considered for
`
`the program, “[d]ue to the significant sentence in front of her, it is thought that the BRIDGE
`
`[p]rogram should not be presented to her.” Counsel did append evidence that Freeman had
`
`been diagnosed with severe opioid use disorder. Freeman also spoke at the hearing. She
`
`apologized to her family and to the court for her actions, and asked the court for mercy.
`
`The district court denied the motion for the BRIDGE program and sentenced
`
`Freeman to 210 months, the low end of the Guidelines calculation based on the offense
`
`level in the PSR. Freeman’s counsel then filed, “pursuant to Federal Rule of Civil
`
`Procedure Rule 59(e),” a petition for rehearing or motion for reconsideration. Noting that
`
`the Federal Rules of Civil Procedure do not apply in criminal proceedings, the district court
`
`
`of credibility[]” and Freeman’s “quintessential case for the Bridge [drug diversion]
`program.” In the filing, Freeman’s attorney did not seem to understand the effect of his
`waiver, continuing to argue points that he had waived and contending that he had
`“specifically provided the Court with objective evidence of [Freeman’s] objections.”
`8
`
`
`
`

`

`
`
`construed the motion as one to modify the sentence under Federal Rule of Criminal
`
`Procedure Rule 35. Finding that Freeman’s counsel had not informed the court of any
`
`“arithmetical, technical, or other clear error” within the ambit of Rule 35, the district court
`
`denied the motion.
`
`II.
`
`Criminal defendants are entitled to effective assistance from counsel. U.S. CONST.
`
`amend. VI. This right extends to sentencing proceedings. Lafler v. Cooper, 566 U.S. 156,
`
`165 (2012). A lawyer is constitutionally ineffective where her representation falls below
`
`objective standards of reasonableness and results in prejudice, meaning there is “a
`
`reasonable probability that, but for counsel’s unprofessional errors, the result of the
`
`proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687–88,
`
`694 (1984). Reviewing courts are “highly deferential” to the strategic decisions of counsel,
`
`which should be judged on the facts of a given case and from counsel’s perspective at the
`
`time that the decisions were made. Id. at 689–90. But a decision cannot be considered
`
`“tactical” where “it made no sense or was unreasonable.” Vinson v. True, 436 F.3d 412,
`
`419 (4th Cir. 2006).
`
`Freeman’s ineffective assistance of counsel claim is made on direct appeal and
`
`therefore was not litigated before the trial court. We review it de novo, but will reverse
`
`only if it “conclusively appears in the trial record itself” that the defendant did not receive
`
`effective representation. United States v. Fisher, 477 F.2d 300, 302 (4th Cir. 1973)
`
`(quoting United States v. Mandello, 426 F.2d 1021, 1023 (4th Cir. 1970)).
`
`
`
`9
`
`

`

`
`
`To prevail on such a claim, a defendant must “demonstrate that counsel’s
`
`performance was deficient with respect to prevailing professional norms or duties.” United
`
`States v. Carthorne, 878 F.3d 458, 466 (4th Cir. 2017). These include “the duty to
`
`investigate and to research a client’s case in a manner sufficient to support informed legal
`
`judgments.” Id. Counsel is “quintessential[ly]” deficient when he does not know the law
`
`that is fundamental to his case and fails to conduct research on highly relevant points of
`
`law. Id. (quoting Hinton v. Alabama, 571 U.S. 263, 274 (2014)). “An attorney’s failure to
`
`object to an error in the court’s guidelines calculation that results in a longer sentence for
`
`the defendant can demonstrate constitutionally ineffective performance.” 878 F.3d at 467
`
`(quoting Ramirez v. United States, 799 F.3d 845, 855 (7th Cir. 2015)). An attorney’s
`
`decision to affirmatively waive meritorious objections can likewise constitute ineffective
`
`performance.
`
`In this case, Freeman’s attorney failed to lodge a meritorious objection to the PSR’s
`
`calculated drug weight. The docket and a court transcript indicate that the district court
`
`and the government agreed that Freeman’s PSR would be revised based on her proffer.
`
`Revision on that basis should have resulted in a base offense level of 32. No matter how
`
`the proffer was taken into account—even if the government were to double Freeman’s
`
`conservative estimate of the number of pills she sold between October 2014 and October
`
`2016, raising her drug weight to the equivalent of 102,000 pills—an objection to the
`
`assessed drug weight on this basis would have resulted in a lower Guidelines range, from
`
`210–262 months to 168–210 months. See U.S.S.G. ch. 5, pt. A (Sentencing Table). Yet
`
`
`
`10
`
`

`

`
`
`upon revising the PSR, the probation officer nonetheless increased the drug weight to an
`
`amount corresponding to a base offense level of 34.
`
`Freeman’s counsel also waived an objection related to a two-level upward
`
`adjustment for obstruction of justice based on Freeman leaving South Carolina while on
`
`bond. This upward adjustment had another effect: the probation officer used it to
`
`disqualify Freeman from an available three-level downward departure for acceptance of
`
`responsibility. A successful objection to the facts underlying the obstruction of justice
`
`departure could accordingly have resulted in a total offense level that was five levels lower
`
`than the one Freeman was ultimately assigned.
`
`Relevant to this case, the Guidelines explain that an upward departure for
`
`obstruction of justice is appropriate where (and only where) “the defendant willfully
`
`obstructed or impeded, or attempted to obstruct or impede, the administration of justice
`
`with respect to the investigation, prosecution, or sentencing of the instant offense of
`
`conviction, and . . . the obstructive conduct related to . . . the defendant’s offense of
`
`conviction and any relevant conduct[.]” U.S.S.G. § 3C1.1. The application notes state that
`
`the enhancement may be appropriate where the conduct involves “escaping or attempting
`
`to escape from custody before trial or sentencing; or willfully failing to appear, as ordered,
`
`for a judicial proceeding[.]” Id. at Application Note 4(E). But the notes go on to state that
`
`the enhancement is ordinarily not warranted for “avoiding or fleeing from arrest.” Id. at
`
`Application Note 5(D). In other words, “[m]erely avoiding or fleeing from arrest does not
`
`warrant an adjustment.” United States v. Jordan, 100 F.3d 950 (Table) (4th Cir. 1996); see
`
`also United States v. Lara, 472 Fed. App’x 247, 248–49 (4th Cir. 2012) (same).
`11
`
`
`
`

`

`
`
`Freeman no doubt violated her bond by leaving South Carolina for North Carolina
`
`after being evicted. But that does not necessarily mean that she “escape[d] or attempt[ed]
`
`escape from custody,” or otherwise willfully obstructed or attempted to obstruct justice.
`
`See U.S.S.G. § 3C1.1. This Court has held that an obstruction enhancement for flight is
`
`appropriate in a case where a defendant fled; eluded officers; obtained and began using
`
`fake identification; failed to appear at sentencing; and told officers that he “had no intention
`
`of turning himself in and . . . would do whatever was needed to remain at large until he was
`
`located and arrested.” United States v. Hudson, 272 F.3d 260, 262–64 (4th Cir. 2001). It
`
`has similarly held that the enhancement was appropriate when a defendant fled to Florida
`
`from North Carolina, told his probation officer he was going to South America, and missed
`
`his sentencing hearing. United States v. Miller, 77 F.3d 71, 73–74 (4th Cir. 1996); see also
`
`United States v. Brown, 438 Fed. App’x 203, 204 (4th Cir. 2011) (finding enhancement
`
`appropriate where the defendant missed a hearing and was a fugitive for more than eight
`
`years). In contrast to those cases, Freeman left after being evicted; was pregnant; went to
`
`her hometown just 40 miles away with her family and children in tow; and called her
`
`probation officer to tell her what happened. She did not even miss a court date.
`
`A reading of the relevant Guidelines and Application Notes alone should have
`
`indicated to Freeman’s counsel that an objection to the adjustment was available and could
`
`result in significantly less sentencing exposure for Freeman. But counsel waived his
`
`client’s objection to the obstruction enhancement because, he told the court, it would not
`
`affect his client’s sentence. He was incorrect on the law.
`
`
`
`12
`
`

`

`
`
`Even if the obstruction of justice enhancement were found to apply, however,
`
`counsel erred by failing to object to the PSR’s failure to apply the downward adjustment
`
`for acceptance of responsibility. As the application notes expressly contemplate, it is
`
`possible to receive both an upward departure for obstruction of justice and a downward
`
`departure for acceptance of responsibility in “extraordinary” cases. See U.S.S.G. § 3E1.1
`
`Application Note 4. In this Circuit, whether a case is “extraordinary” in this way is “a
`
`largely factual matter to be determined by the district court.” United States v. Knight, 606
`
`F.3d 171, 177 (4th Cir. 2010). It is not foreclosed in any given case. This Court has
`
`affirmed such a Guidelines calculation in an “extraordinary case” where, despite a
`
`defendant’s flight from officers and lies to a probation officer, he also cooperated
`
`significantly. United States v. Hicks, 948 F.2d 877, 879–81, 885 (4th Cir. 1991). Freeman
`
`significantly cooperated with the government; was severely addicted to opioids; had been
`
`told that the Department of Social Services would attend her next meeting with her
`
`probation officer and that her children might be taken from her; and was pregnant at the
`
`time she was forced to leave her home in South Carolina, with no place for her and her
`
`children to live. The sentencing court may have appropriately concluded that Freeman’s
`
`was the “extraordinary case” where a defendant still merited a downward departure for
`
`acceptance of responsibility, resulting in a Guidelines range of 151–188 months absent any
`
`other reductions. But counsel did not argue the point.
`
`Counsel variously states in the record that he waived his client’s objections to the
`
`PSR because they “might be considered as minimal”; were “not going to change, in
`
`essence, what the charges are”; and would not “reduce the number that is relevant to this
`13
`
`
`
`

`

`
`
`[c]ourt.” Later contradicting himself in an improper post-sentencing filing, he continued
`
`to argue the objections while variously stating that he waived them because the court was
`
`aware of them; because the government was not credible; and because his client was a
`
`“quintessential case for the [drug diversion] program.” But as this Court explained in
`
`United States v. Richardson, an express, “knowing[,] and voluntary” waiver at sentencing
`
`is almost always binding. 744 F.3d 293, 299–300 (4th Cir. 2014). Counsel’s attempt to
`
`resurrect these issues immediately after waiving them indicates that he may have
`
`improperly advised his client regarding waiver at the sentencing hearing. Separately,
`
`Freeman stated in a pro se filing to this Court that her counsel advised her to waive the
`
`objections because arguing them would create a “hostile environment” in the courtroom.
`
`That may be an appropriate justification for foregoing a meritless objection, but it would
`
`never be an appropriate justification for waiving a meritorious one.
`
`The multiple justifications available on the face of the record suggest that counsel
`
`went into his client’s sentencing woefully unprepared.5 But even considered individually,
`
`none would be reasonable. Most notably, counsel was wrong that the objections would not
`
`affect his client’s sentence. With a two-level reduction for drug weight; a two-level
`
`reduction for not receiving the obstruction of justice enhancement; and a three-level
`
`reduction for acceptance of responsibility in the absence of the obstruction enhancement,
`
`
`5 The numerous, inconsistent, and shifting justifications for counsel’s decision to
`waive the objections—already available on the face of the record—also confirm our
`determination that waiting to address Freeman’s ineffective assistance claim on collateral
`review would not provide this Court with information useful to adjudicating this claim.
`14
`
`
`
`

`

`
`
`Freeman could appropriately have been sentenced at an offense level of 29, with a
`
`Guidelines range of 97 to 121 months.6 Unlike our dissenting colleague, we are confident
`
`on this record that counsel had no strategic reason to waive straightforward legal arguments
`
`that could result in his client receiving approximately a decade less time behind bars in
`
`favor of a nonexclusive motion for entry into a diversion program.
`
`On this record, it appears that counsel did not understand his client’s sentencing
`
`exposure nor the law fundamental to his client’s objections. His performance in this case
`
`was thus the kind of quintessentially ineffective assistance that lies beneath the
`
`constitutional floor. See Carthorne, 878 F.3d at 466. However, for this Court to vacate
`
`and remand Freeman’s case for resentencing on her ineffective assistance claim, her
`
`counsel’s performance must also have prejudiced her. Strickland, 466 U.S. at 687–88.
`
`In this case, the prejudice is manifest. A defendant establishes prejudice under
`
`Strickland where there is a “‘reasonable probability’ that the outcome of a sentencing
`
`would change” absent counsel’s errors. Carthorne, 878 F.3d at 470 (quoting United States
`
`v. Rangel, 781 F.3d 736, 746 (4th Cir. 2015)). “[I]n most cases, when a district court adopts
`
`
`6 At sentencing, the district court stated that it would have sentenced Freeman to
`210 months imprisonment regardless of the Guideline range. While a district court may
`depart from the Guideline range in a particular case, the Guidelines have a “central role”
`in sentencing and a “real and pervasive effect” on sentence length. Molina-Martinez v.
`United States, 136 S.Ct. 1338, 1345–46 (2016). Guideline ranges “serve as the starting
`point for the district court’s decision and anchor the court’s discretion in selecting an
`appropriate sentence.” Id. at 1349. When the calculated Guideline range is incorrect, “a
`defendant . . . should be able to rely on that fact to show a reasonable probability that the
`district court would have imposed a different sentence under the correct range. That
`probability is all that is needed to establish an effect on substantial rights[.]” Id. Under
`the circumstances of this case, as explained below, it is likewise all that is needed to
`establish prejudice under Strickland.
`
`
`
`15
`
`

`

`
`
`an incorrect Guidelines range, there is a reasonable probability that the defendant’s
`
`sentence would be different absent the error.” Molina-Martinez v. United States, 136 S.
`
`Ct. 1338, 1341 (2016). Here, the incorrect drug weight calculation alone would have
`
`entitled Freeman to a two-level reduction and favorably reduced her Guidelines range.
`
`This is so even though (as the government noted at sentencing and again before this Court)
`
`Freeman’s ultimate sentence would remain within the recalculated Guideline range if she
`
`received nothing more than that reduction. “When a defendant is sentenced under an
`
`incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within
`
`the correct range—the error itself can, and most often will, be sufficient to show a
`
`reasonable probability of a different outcome absent the error.” Id. at 1345. Because
`
`Freeman’s counsel unreasonably failed to argue meritorious objections and advised his
`
`client to waive those objections without understanding the gravity of that waiver—and
`
`because those objections would have resulted in a reduction of the Guidelines range
`
`applicable to Freeman’s sentence—counsel was constitutionally ineffective.
`
`III.
`
`Raising an independent basis for relief, Freeman also argues that her 210-month
`
`sentence was substantively unreasonable. Sentencing is generally the province of the
`
`district court. See Rita v. United States, 551 U.S. 338, 350–51 (2007). As a result, appellate
`
`courts generally defer to a district court’s sentencing decision, and may reverse a sentence
`
`only where it is unreasonable, “even if the sentence would not have been the choice of the
`
`appellate court.” United States v. Evans, 526 F.3d 155, 160 (4th Cir. 2005); see also Gall
`
`
`
`16
`
`

`

`
`
`v. United States, 552 U.S. 38, 51 (2007). In the Fourth Circuit, “sentences that fall within
`
`the Guidelines range are entitled to a presumption of substantive reasonableness.” United
`
`States v. Blue, 877 F.3d 513, 519–20 (4th Cir. 2017). Such a presumption, “rather than
`
`having independent legal effect, simply recognizes the real-world circumstance that when
`
`the judge’s discretionary decision accords with the Commission’s view of the appropriate
`
`application of [18 U.S.C.] § 3553(a) in the mine run of cases, it is probable that the sentence
`
`is reasonable.” Rita, 551 U.S. at 351. It is accordingly “rebutted by showing that the
`
`sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” United
`
`States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). We evaluate substantive
`
`reasonableness based on “the totality of the circumstances.” United States v. Mendoza-
`
`Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). To preserve a claim of substantive
`
`reasonableness on appeal, all a defendant must do is, “by advocating for a particular
`
`sentence,” communicate to the district court that the sentence is “greater than necessary”
`
`in the proceedings below. Holguin-Hernandez v. United States, 140 S. Ct. 762, 767 (2020).
`
`“It has been uniform and constant in the federal judicial tradition for the sentencing
`
`judge to consider every convicted person as an individual and every case as a unique study
`
`in the human failings that sometimes mitigate, sometimes magnify, the crime and the
`
`punishment to ensue.” Koon v. United States, 518 U.S. 81, 113 (1996). These
`
`considerations are generally analyzed by district courts within the framework of 18 U.S.C.
`
`§ 3553(a), which sets out factors district courts must consider in sentencing. They include
`
`“the nature and circumstances of the offense and the history and characteristics of the
`
`defendant”; “the need for the sentence imposed”; and “the need to avoid unwarranted
`17
`
`
`
`

`

`
`
`sentence disparities among defendants with similar records who have been found guilty of
`
`similar conduct.” Id. In sentencing Freeman to serve 210 months, the district court did not
`
`address sentencing disparities nor fully consider the history and circumstances of the
`
`defendant in relation to the extreme length of her sentence.
`
`With regard to sentencing disparities, counsel provides this Court with data obtained
`
`from the United States Sentencing Commission’s 2018 Sourcebook of Federal Sentencing
`
`Statistics tending to show that Freeman’s sentence is significantly longer than those of
`
`similarly-situated d