# Petition for Writ of Certiorari — Glover v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 198

## Text

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| OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

PAUL L. GLOVER,
Petitioner,
Vv.

UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

MICHAEL L. WALDMAN
(Counsel of Record)
FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON
1001 Pennsylvania Avenue, NW, Suite 800
Washington, DC 20004
(202) 639-7000

Counsel for Petitioner

QUESTION PRESENTED PARTIES

One year after his direct appeal had concluded, Mr. Glover discovered that his 84-month

All of the parties to the proceedings below are listed in the caption of the case, supra. See
prison sentence was based on an incorrect calculation under the U.S. Sentencing Guidelines. Sup. Ct. R. 14.1(b).

While his original case was pending, the Seventh Circuit had issued a decision in another case
interpreting a Guidelines issue in favor of defendants. Mr. Glover filed the instant action

pursuant to 28 U.S.C. § 2255 to correct his sentence, on the ground that his attorney had

provided ineffective assistance in failing to raise this binding Seventh Circuit decision.

The court of appeals affirmed the dismissal of Mr. Glover’s Section 2255 action. In light
of the dispositive appellate ruling that his counsel never raised, the court of appeals assumed that
Glover's attorney performed inadequately. It also assumed that the deficient performance led to
an offense level under the Sentencing Guidelines which was two levels higher than it should
have been, and that this error caused Mr. Glover to receive a sentence that was 6 to 21 months
higher than he should have received. Nevertheless, the Seventh Circuit held that such an
increased sentence due to counsel’s deficient performance "is not sufficiently significant to be
cognizable on collateral attack." (App. 2). The questions on which review is sought are:

1. Whether the court of appeals erred in holding that an additional 6 to 21 months in
prison due to counsel’s error relating to the sentencing guidelines fails to satisfy the “prejudice” |
prong of Strickland v. Washington, 466 U.S. 668 (1984).

2. Whether the court of appeals erred in holding that a 2-level error in the offense
level under the sentencing guidelines was per se insufficient to satisfy the “prejudice” prong of
Strickland v. Washington, 466 U.S. 668 (1984), even where this 2-level error resulted in the

petitioner being sentenced to an additional 6 to 21 months in prison.

—~
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED..........-ssssssssssssssssesesssneesssnsennnanenssnnnsssnnnssennnansacnnnnasananassennssts i
PARTIES .......ececscsosesesescecesessssesecevcsssssnsssoossssssscseosesensnsesssssnsnsssanonsssenoqssssansnssosnonssosnensneeees ii
TABLE OF AUTHORITIES ............:s:ssssssssesesssssssssssensnssssnensnsesssensnensnsnnansnsensnanensnensnanenss iv
OPINIONS BELOW.........:.:s:scssssssssssssssssssssesnessnessnenensnssnensnsnsensnensnenansnsanensensnensnananensnsess l
JURISDICTION .....--:-:s:sssesecsssscessssssssssssssssseesenesnssensanensnsensnsncensnenssnenensansnsansnsnsnsnnesenensgss 2
PERTINENT CONSTITUTIONAL AND STATUTORY PROVISIONS ........:-:++++0000 2
SUMMARY OF THE ARGUMENT .........:::::+:s:sesssesenensnesnsnsnssnsnensnaasnansnsnanansnananesnanens 2
STATEMENT OF THE CASE..........:ssscsssssssessssssesssnensnessnsnrsnsnssnsnenensnsnsensenensnsasonenesennoes 5
l. Conviction and Sentence...............ccscsseeecseeeneeeeneeseersressensennneenens 5
2. Section 2255 Motion. ...........:ccsscsssssesesseesceeeeeeeeeeesenseeesensseessnensnnees 5
3. District Court’s Decision .............:sssssesseseeeeseneeeenesensnnsnensnneneenney 6
4 Court of Appeals’ Decision .............:::ssssessnsssnsrenenenenensnenenanens 7
REASONS FOR GRANTING THE PETITION ...........:::ssssssssssserenenenensnenensnenensananenennnnes 8
A. The Seventh Circuit’s “Significant Prejudice”
Requirement Is Contrary to Supreme Court Precedentt.............-+:-+s-se-0000 9
B. The Seventh Circuit’s Interpretation of “Prejudice” Conflicts
With Other Circuits and District Courts ..........:.:sscseeeserseersreeeesennnnnnennnes 14
C. The Seventh Circuit’s “Significant Prejudice” Requirement
Leads to Arbitrary And Inconsistent Results ..............:0:0:0:sssesseeeeeesenenenens 20
D. This Case Presents An Issue of Recurring Importance............-.---++s+e+eee9 22
24

CONCLUSION .....:-:sssessesesssssssssssssssessersssensnssneesenssnnensnsnansaseanensensnsnssnnenssnssnnsnnsnsannesnoansen®

ili

i eee

TABLE OF AUTHORITIES
Cases P
age
Allen v. United States,
ESN 8, 21, 23
Argersinger v. Hamlin,
ee 3,12
Arredondo v. United States,
ee 19
Baldasar v. Illinois,
a 13
Baldwin v. New York,
_— ee 12, 13
Burgos v. United States,
968 F.Supp. 380 (N.D. Tl. 1997) 0.0... .ccccccccccesccsesessssessesesssseeveeeeseeseseeceseeeecee. 8, 23
Davis v. United States,
1998 WL 142369 (N.D. Ill. March 19, SESE ae ee ae 8, 23
Day v. United States,
191 F.3d 455, 1999 WL 528145 (7th Cir. a 23
Duncan v. Louisiana,
| 13
Durrive v. United States,
ae passim
Fout v. United States,
165 F.3d 32, 1998 WL 636780 (7th Cir. Sean 23
Gil v. United States,
4 F. Supp. 2d 760 (ND. Ill. 1998) .0.........ccccccccecceccesssssessessssosseseeeseseessese., 14, 23
Gonzalez v. United States,
967 F. Supp. 326 (N.D. Tl. 1997) 0.0... .ccccccccccccessessesssessmesseesssseeeseseeseeces. 14, 23
Harden v. United States,
191 F.3d 456, 1999 WL 547979 (7th Cir. EERE oe are eee 23

Jackson v. Leonardo,

Ea ee aN Ee 16, 17
Lockhart v. Fretwell,

ina ieet decent etlcinianinlhin ini bib ieiadedbildiaaiol passim
Martin v. United States,

NOT IE CUE cxcsceccnsscsscerssscsnennentuninentetenmnnnemmmnesiateanietanemabentinmiatess passim
Robinson v. United States,

EC ee eT, 23
Scott v. Illinois,

Re ae Ne ee aT ee 13
Smith v. United States,

ee 19
Spriggs v. Collins,

kT eT a 4, 17, 18,19
Strickland v. Washington,

ET en ee en a TTT, passim
Unger v. United States,

ee LOE ee eee ER LTT 23
United States v. Allen,

a ne Ee RI .
United States v. Day,

I I each inch ice 22
United States v. Evans,

ee 23
United States v. Ford,

ET er EN EEE! 15
United States v. Glover,

I Ee Se 5,6
United States v. Granados,

ee ET a ETT 15
United States v. Harfst,

CME GUE casenconssenenasenstininisentiitaiimntctansinestaaittiiaaasiatataaiiatiiait laa 19

United States v. Headley, ““

GG Ue pannnenemenpuspessesstsemmmnmmanmsnioiaissaieseness 16
United States v. Hubbard,

1997 WL 639232 (ND. Ill. Oct. 6, 1997) .....cccccccccccssssecsssssseessssueessssueesessnuveseesnneee 14, 22, 23
United States v. Kissick,

SC RT TE 19
United States v. Murray,

176 F.3d 476, 1999 WL 187192, (4th Cir. 1999) o.oo. ooccccccccccsssescsssseeseessseeeessseeensesnenee 18
United States v. Pale-nba,

SE ee ee eT 17
United States v. Paz, | |

1997 WL 158338 (N.D. Ill. March 31, 1997) ..........ccccccscssccssssessssueessssuesessesneeeeeenneeenee 21, 23
United States v. Segler,

EL Seer es ee COE TS 18
United States v. Soto,

NE Ce De Ma ae a 16, 22
United States v. Tai,

EE Ras Pa ee ETN 22, 23
United States v.

27 F.3d 671 (D.C. Ci.) .occcccccccsseee: Sa ner Cee a OO OLR RST REE 16
United States v. Wheeler,

81 F.3d 171, 1996 WL 155139 (9th Cir. April 2, 1996) ....00.ccccccccccccccccscscseseerereceeeereenees 17
United States v. Wilson,

TT I AS TELE SN TST a
Statutes, Regulations and Other Materials ;
EE Rae CNC ee ae Se ae Oe tet aE NTT 5
iia i a Ns oa 5
18 U.S.C. § 1962(d) -
EE ™ 5

28 U.S.C. § TT 2 . OOOO
Beis 1 a hcensecnsenconsnescenenspecmatenneatnnmmenssenmncebinnnegecatnmienmmpnpmnnenreunepataispesinbasaastineaias passim IN THE
I Ge Ba, HR a rcs en cnsecnssccsnsnsncscnnasencensesnnniensscqnnannnenapesssmnsstnnsenensanesessneniemmaieiseanammapeesematteaants ii SUPREME COURT OF THE UNITED STATES
Oe a 5,7 OCTOBER TERM. 1999
No.
PAUL L. GLOVER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Paul L. Glover respectfully petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals was reported at 182 F.3d 921 (7th Cir. 1999) (Table)
and is reproduced in the Appendix at App. 1. The opinion of the United States District Court for

the Northern District of Illinois was not reported and is reproduced in the Appendix at App. 3.

JURISDICTION

The judgment of the court of appeals was entered on July 15, 1999. A timely petition for
rehearing was denied on October 7, 1999. (App. 8). This Court’s jurisdiction is invoked under
28 U.S.C. § 1254(a).

PERTINENT CONSTITUTIONAL AND STATUTORY PROVISIONS

The relevant constitutional provisions are the Sixth and Fourteenth Amendments to the
United States Constitution.

SUMMARY OF THE ARGUMENT

This case raises an issue of recurring importance — whether defense counsel’s error
relating to the U.S. Sentencing Guidelines which causes the defendant to be sentenced to
additional months of incarceration (in this case, between 6 and 21 months of additional
imprisonment) constitutes ineffective assistance of counsel under the Sixth Amendment. Here,
due to counsel’s ineffective performance, the district court made a clear error in calculating the
offense level. Under the correct offense level, petitioner’s a of imprisonment should have
been between 6 to 21 months lower than the 84-month sentence he actually received.
Nevertheless, while conceding counsel’s deficient performance and the incorrect sentencing
calculations, the court of appeals denied petitioner's motion under 28 U.S.C. § 2255 to correct
his sentence. Applying the governing case law in the circuit, the Seventh Circuit held that an
additional 6 to 21 months in prison was not “sufficiently significant” to satisfy the prejudice
prong of the ineffective assistance of counsel standard. According to the Seventh Circuit, to be
“significant prejudice,” a counsel’s error —_ lead to an incorrect sentence of more than two

offense levels under the Sentencing Guidelines.

The Seventh Circuit’s rule represents a marked and unwarranted departure from this
Court’s established precedents relating to constitutionally ineffective assistance of counsel. In
adding a a new “significance” threshhold, the Seventh Circuit misconstrues the prejudice
requirement as set out in Strickland v. Washington, 466 U.S. 668 (1984), and interpreted in
Lockhart v. Fretwell, 506 U.S. 364 (1993). Nowhere in Strickland does the Court even suggest
that additional months in prison due to counsel’s deficient performance would not constitute
prejudice. Contrary to the Seventh Circuit’s reasoning, the Supreme Court’s decision in
Lockhart also does not support the conclusion that defendant must show “significant prejudice.”
Lockhart addressed the narrow circumstances where the habeas petitioner’s ineffectivenesss
claim was based on the attorney’s failure to invoke at sentencing a court of appeals decision that
was later overruled. The Lockhart Court refused to allow the habeas petitioner to obtain “a
windfall;” that is a far cry from the instant case where Mr. Glover simply asks for the correct
application of the Sentencing Guidelines. Moreover, the Seventh Circuit’s decision is contrary to
this Court’s Sixth Amendment jurisprudence which has recognized that any term of
imprisonment, even one day, requires the effective assistance of counsel. See Argersinger v.
Hamlin, 407 U.S. 25 (1972) (rejecting argument that right to counsel exists only for felony
offenses and hoiding that no person may be imprisoned for any period without presence of
counsel at trial).

Not surprisingly, the decision below also conflicts with other courts of appeals and
district courts which have declined to adopt the Seventh Circuit’s “significant prejudice”
requirement. The D.C., Third, and Eighth Circuits have not adopted the Seventh Circuit’s
“significant prejudice” rule and have granted Section 2255 motions where the change due to

counsel’s error is two offense levels or less. Furthermore, and even more striking, the Second

and Ninth Circuits have granted Section 2255 motions where there is no effect on the actual
prison term of the petitioner. Even those circuit courts which favor a “significant prejudice” test
— the Fourth, Fifth and Tenth Circuits -- have not adopted the Seventh Circuit’s rule that a two-
offense level change due to counsel’s deficient performance is per se insufficient to constitute
“prejudice” under Strickland. The Fifth Circuit has expressly recognized “an exception” for the
very type of situation raised by Mr. Glover here -- “when a deficiency by counsel resulted in a
specific, demonstrable enhancement in sentencing.”' Spriggs v. Collins, 993 F.2d 85, n.4 (Sth
Cir. 1993).

The Seventh Circuit’s “significant prejudice” rule also has led to inconsistent results in
the lower courts. These courts have not been provided guidelines or standards for determining
whether an increased sentence due to counsel’s error is “significant.” Instead, the lower courts
are left to their c wn devices in attempting to evaluate if it is the number of months, number of
offense levels, percentage of total sentence, or some other variable which is critical to showing
sufficient prejudice. The seemingly arbitrary nature of the lower court decisions relating to what
constitutes “significant prejudice” damages the public’s confidence in the court system and
precludes the consistency in sentencing which was the goal of the Sentencing Guidelines.

This Court’s review is necessary to establish uniformity on the issue of whether, and in
what circumstances, additional months in prison due to counsel’s deficient performance

constitutes constitutionally ineffective assistance. There already have been numerous cases

I The Sixth Circuit has noted the split within the courts of appeals and expressed doubts about the
Seventh Circuit’s position. Thus far, however, the Sixth Circuit has not been required to rule on
the issue.

across the country which involve the precise situation and issue raised by Mr. Glover’s case.
Given the frequently recurring nature of the problem of mistakes by counsel relating to
Sentencing Guidelines calculations, it is especially important that this Court grant the writ in this

case and end the confusion among the lower courts.

STATEMENT OF THE CASE

1. Conviction and Sentence

Following a jury trial, defendant Paul Glover was found guilty of one count of a
conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§ 1962(d); eleven counts of soliciting and receiving kickbacks in violation of 18 U.S.C. § 1954;
two counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(I); and four counts of
tax evasion in violation of 26 U.S.C. § 7206. At the time of sentencing, it was determined that
Mr. Glover’s total offense level was 28 and his criminal history category was level I, resulting in
a guideline range of 78 to 97 months. He was sentenced to 84 months’ incarceration. Mr.
Glover’s conviction and sentence were affirmed on direct appeal, where he was represented by
the same counsel who represented him at trial. See United States v. Glover, 101 F.3d 1183 (7th
Cir. 1996). ;

2. Section 2255 Action

Less than one year after the decision on appeal became final, Glover filed his present
action in the U.S. District Court for the Northern District of Illinois pursuant to 28 U.S.C. § 2255
to vacate, set aside or correct his sentence. Mr. Glover contended that his sentencing range was
incorrectly calculated because his money laundering offenses were not grouped with his

conspiracy and kickback offenses. See U.S.S.G. § 301.2. He further contended that his counsel

<—

was ineffective for failing to urge this issue at the time of sentencing and for failing to raise the
issue at all on direct appeal. Jn United States v. Wilson, 98 F.3d 281, 282-84 (7th Cir. 1996), the
Seventh Circuit had held that money laundering offenses and mail fraud offenses should be
grouped together. As the government conceded before the district court, Wilson would be
controlling as to the grouping of Mr. Glover’s conspiracy, kickback, and money laundering
offenses. The Wilson case was argued on April 1, 1996 and issued on October 17, 1996, months
before the decision on Mr. Glover’s appeal was issued. Glover, 101 F.3d a! 1183.

I). ».s Section 2255 motion, Mr. Glover claimed that his counsel’s ineffective assistance
during the sentencing had caused Glover to receive an incorrect sentence. Mr. Glover was
sentenced to 84 months incarceration based on the court’s finding of an offense level of 28 and a
guideline range of 78 to 97 months. Had the money laundering been grouped with the
conspiracy and kickback offenses, the total offense level would have been 26 and the guideline
range would have been 63 to 78 months. Due to his counsel’s deficient performance, Mr.
Glover’s sentence was incorrectly extended by at least 6 months and possibly up to 21 months.

3. District Court’s Decision

The federal district court dismissed petitioner’s Section 2255 motion. The district court
found it unnecessary to consider the issue of whether Mr. Glover’s counsel’s performance was
deficient. (App. 5). The court noted that Seventh Circuit precedent required that “[wJhen, as
here, the constitutional basis for relief on such a claim is ineffective assistance of counsel, the
potential change in sentence must be a ‘significant’ amount in order to satisfy the prejudice
prong of an ineffective assistance of counsel claim.” (App. 5). Applying the Seventh Circuit's
rulings in Durrive v. United States, 4 F.3d 548 (7th Cir. 1993), and Martin v. United States, 109

F.3d 1177, 1178 (7th Cir. 1996), cert. denied, 522 U.S. 931 (1997), the district court concluded

6

that the Seventh Circuit stated a per se rule that a change of two offense levels would not be
sufficient to constitute “significant prejudice.” (App. 5-6). Accordingly, the district court held
that “Because the error claimed in the present case [between 6 and 21 months of additional
ienprisonment] did not have a significant effect on Glover’s sentence, he does not state any basis
for granting § 2255 relief.” (App. 6).

4. Court of Appeals’ Decision

The Seventh Circuit affirmed on appeal, relying on the same basic rationale as the district
court. The court of appeals assumed that Mr. Glover’s attorneys had performed deficiently in
failing to argue the correct interpretation of U.S.S.G. § 301.2 relating to the grouping of his
money laundering offenses with his conspiracy and kickback offenses. (App. 1). The Seventh
Circuit, however, held that under the existing precedent in that court, Mr. Glover could not
demonstrate sufficient prejudice to satisfy the second prong of Strickland v. Washington, 466
U.S. 668, 687 (1984). The Seventh Circuit stated, in pertinent part:

This court has held that only a significant increase in the
sentencing rises to the level of the type of prejudice that will
support an ineffective assistance of counsel claim on collateral
attack.

At sentencing, the district court determined that Glover’s adjusted
offense level under the Sentencing Guidelines was 28 and his
criminal history category was I, resulting in a sentencing range of
78 to 97 months in prison. The court selected a mid-point in the
range, sentencing Glover to 84 months in prison. Glover alleges
that, but for the errors of his counsel, his adjusted offense level
would have been 26, resulting in a range of 63-78 months
imprisonment. Thus, he argues, his sentence would have been 6 to
21 months lower than the 84-month sentence he received.
Unfortunately for Glover, under Martin and Durrive, this potential
decrease is not sufficiently significant to be cognizable on
collateral attack.

(App. 1-2) (citations omitted).

REASONS FOR GRANTING THE PETITION

In Durrive v. United States, 4 F.3d 548 (7th Cir. 1993), the Seventh Circuit first
announced that errors in sentencing calculations caused by counsel’s deficient performance must
be “significant” to constitute constitutionally ineffective assistance of counsel. According to the
Durrive court, only “Grave errors by judge and counsel” -- “[flor instance, an error that produces
a large effect on the sentence” — could be deemed prejudicial for Strickland purposes. Id at 551.
Subsequent panels within the Seventh Circuit, including in the instant case, have followed
Durrive. See, e.g., Martin, 109 F.3d at 1177-78; Allen v. United States,, 175 F.3d 560, 563 (7th
Cir. 1999).

This Court should grant the writ in Mr. Glover’s case to review and reverse this Seventh
Circuit rule requiring “significant prejudice” of more than two offense levels under the
Sentencing Guidelines. The Seventh Circuit’s rule has no support in Strickland or subsequent
Supreme Court jurisprudence. The “significant prejudice” rule also has not been widely
followed in the circuit courts or trial courts outside of the Seventh Circuit. Even within the
Seventh Circuit, three judges, including one of its original proponents, have strongly attacked the
rule that additional months in prison does not constitute “significant” prejudice, Martin v. United
States, 109 F.3d 1177, 1178 (7th Cir. 1997) (Judge Rovner, dissenting on denial of en banc
review), and district courts have considered the reasoning underlying this rule to be
“questionable,” Burgos v. United States, 968 F.Supp. 380, 384 (N.D. Ill. 1997), and “the source
of considerable debate.” Davis v. United States, 1998 WL 142369 *3 n.5 (N.D. Ill. March 19,

1998) (citing numerous cases).

A. The Seventh Circuit’s “Significant Prejudice” Requirement Is Contrary to
Supreme Court Precedent

The Seventh Circuit has adopted a rule that an increased prison term due to a sentencing
error caused by counsel’s deficient performance does not constitute prejudice for the purpose of
the Strickland analysis unless the increase is significant. Unfortunately, the Seventh Circuit’s
rule is contrary to Supreme Court precedent.

The Supreme Court in Strickland v. Washington, 466 U.S. 668, 690 (1984), established a
two-part test for reviewing claims of ineffective assistance of counsel. First, a defendant must
demonstrate that his counsel’s performance fell below an objective standards of reasonableness.
Second, a defendant must demonstrate that he suffered prejudice due to his counsel’s deficient
performance. This second prong requires that the defendant “show that there is a reasonable
probability ... that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” /d. at 694.

Nowhere in Strickland does the Court state that the defendant must show “significant
prejudice.” Nor is there any indication that the defendant must show a large increase in his
prison sentence. Instead, Strickland makes clear that the test is whether counsel’s errors have
adversely affected the proceeding’s outcome: “taking due account of the effect of the errors on
the remaining findings, a court making the prejudice inquiry must ask if the defendant has met
the burden of showing that the decision reached would reasonably likely have been different
absent the errors.” Jd. at 696. Plainly, as the court of appeals itself assumed here, Mr. Glover
can demonstrate that the sentence in his case “would reasonably likely have been different” had

his counsel asserted the groupings issue and the dispositive Seventh Circuit case in his favor.

In support of gra:ting a “significant prejudice ” requireme’ _ nto Strickland, the Seventh
Circuit in Durrive relied on a single quote from Lockhart v. Frets 6 U.S. 364 (1993):
[A]n analysis focusing solely on mere outcome determination
without attention to whether the result of the proceeding was
fundamentally unfair or unreliable, is defective. To set aside a
conviction or sentence solely because the outcome would have
been different but for counsel’s error may grant the defendant a
windfall to which the law does not entitle him.
Durrive, 4 F.3d at 551 (quoting Lockhart, 506 U.S. at 369-70).2 The Seventh Circuit, however,
failed to explain why this quotation from Lockhart should mandate a requirement that counsel’s
error cause a sizeable increase in defendant’s prison sentence. There can be no doubt that the
“result of the proceeding was fundamentally unfair or unreliable” in Mr. Glover's case—in fact,
Glover received a sentence which was 6 to 21 months more than he should have received under
the applicable law and regulations. There also can be no claim that Glover received “a windfall
to which the law does not entitle him”—in fact, his counsel’s deficient performance caused
Glover to receive an injury which he should not have received, i.e., a sentence longer than the
Sentencing Guidelines properly allowed.
Lockhart involved a highly unusual set of facts. The question in Lockhart was whether a

habeas petitioner could prevail on an ineffectiveness claim based on the attorney’s failure to

invoke at sentencing a decision of the Eighth Circuit that was later overruled. Faced with this

: As Judge Rovner noted in criticizing the reasoning behind the Seventh Circuit’s rule,
Although Durrive held out Lockhart as the foundation for its holding, |
believe the court overlooked not only the context of the Supreme Court’s
(Lockhart) decision but limitations in the very language of its opinion.

Martin, 109 F.3d at 1180 (Judge Rovner, dissenting).

10

issue, the court of appeals in Lockhart had ruled in favor of Fretwell on the ground that had his
counsel made a timely objection, the trial court s.vuld have been compelled to follow then-
controlling Eighth Circuit law and modify his sentence to life imprisonment. The Supreme
Court disagreed with this single-minded focus on “mere outcome determination, ” believing that
such an approach would provide an unwarranted “windfall” to Fretwell since he was attempting
to rely on counsel’s failure to raise case law which subsequently had been discredited and
rejected. According to the Lockhart court, c unsel’s error had, at most, “deprived [Fretwell] of
the chance to have the state court make an error in his favor.” /d. at 371.

Fretwell’s situation was in stark contrast to the instant case where Mr. Glover has been
harmed by his counsel’s failure to have the court apply the proper law relating to his sentence.
As Judge Rovner noted in her dissent:

Absolutely nothing in Lockhart addresses this situation. Nowhere

does Lockhort suggest that a sentencing may still be described as

fair and reliable when it is clear that the sentencing court has

sentenced the petitioner to an excessive term, and only his

attorney's ineffectiveness has prevented correction of the error

either in the district court or on direct appeal. Nothing in

Lockhart remotely suggests that only when an attorney's

ineffectiveness results in a ‘significant’ harsher sentence may the

prejudice be recognized on collateral review.
Martin, 109 F.3d at 1181-82 (emphasis added). Thus, the single Supreme Court case relied on by
the Seventh Circuit does not support its attempt to add a “significance” requirement to the

prejudice prong of the Strickland analysis. ‘

3 As the Lockhart Court noted, the defendant “has no entitlement to the luck of a lawless
decisionmaker.” 506 U.S. at 370 (quoting Strickland, 466 U.S. at 695).

4 The decision in Lockhart is a narrow one. As Justice O’Connor explained in her concurrence:
Footnote continued

11

The Seventh Circuit’s rule also cannot be reconciled with fundamental Sixth Amendment
jurisprudence. The Supitine Court has previously rejected the argument that a few months
imprisonment is ‘insignificant’ for the purposes of a defendant's constitutional right to effective
counsel. This was the precise issue in Argersinger v. Hamlin, 407 U.S. 25 (1972). There, the
petitioner had been unrepresented by counsel ir. cor ection with a misdemeanor offense which
had a maximum punishment of six months imprisonment. He had been convicted and sentenced
to serve three months in prison. The Argersinger Court unanimously reversed the conviction,
holding that petitioner was entitled to counsel in any case resulting in imprisonment. According
to the Court, “no person may be imprisoned for any offense, whether classified as petty,
misdemeanor or felony, unless he was represented by counsel at his trial.” Jd at 37. The
Supreme Court in Argersinger saw no reason to differentiate between three months or six months
or twelve months in prison, but considered any term of imprisonment to be significant enough to
implicate the Sixth Amendment’s right to counsel. As the Court noted, “the prospect of
imprisonment for however short a time will seldom be viewed by the accused as a ‘trivial’ or
‘petty’ matter and may well result in quite serious reprecussions. . .” /d. (quoting Baldwin v. New

York, 399 U.S. 66, 73 (1970)).

Footnote continued from previous page

Specifically, today we hold that the court making the prejudice determination
may not cousider the effect of an objection it knows to be wholly meritless
under current governing law, even if the objection might have been
considered meritorious at the time of its omission. That narrow holding, of
course, precisely disposes of this case as it appeared before the Eighth
Circuit.

506 U.S. at 374.

12

In subsequent decisions, this Court has reaffirmed its Argersinger decision and
emphasized the special nature of imprisonment. In finding no right to counsel where the
defendant was ultimately fined and not imprisoned, Chief Justice Rehnquist noted:

the [Argersinger] Court’s conclusion [was] that incarceration was

so severe a sanction that it should not be imposed as a result of a

criminal trial unless an indigent defendant had been offered

appointed counsel to assist in his defense, regardless of the cost to

the States implicit in such a rule. The Court in its opinion

repeatedly referred to trials “where an accused is deprived of his

liberty” id, at 32, and to “a case that actually leads to imprisonment

even for a brief period,” id. at 33. The Chief Justice in his opinion

concurred in the result also observed that “any deprivation of

liberty is a serious matter.” Id. at 41.
Scott v. Illinois, 440 U.S. 367, 372-73 (1979). See also Baldasar v. Illinois, 446 U.S. 222 (1980)
(holding that uncounseled misdemeanor conviction may not be used under an enhanced penalty
statue to convert a subsequent misdemeanor into a felony with a prison term).

The Seventh Circuit’s rule -- that 6 to 21 additional months imprisonment is not
“significant” -- also clashes with this Court’s teachings under the right to trial by jury. The right
to a jury trial is guaranteed by the Sixth Amendment for any trial where the potential punishment
is imprisonment of six months or more. See Baldwin v. New York, 399 U.S. at 66; Duncan v.
Louisiana, 391 U.S. 145 (1968). As the controlling opinion of Justice White stated in Baldwin,
“no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment

for more than six months is authorized.” 399 U.S. at 69.

Footnote continued from previous page

13

The Seventh Circuit’s rule requiring a showing of “significant prejudice” has no support
in this Court’s decisions in Strickland or Lockhart. Furthermore, it conflicts with the Supreme
Court’s prior holdings that any term of imprisonment implicates the right to the effective
assistance of counsel. The Seventh Circuit’s decision below also is flatly inconsistent with the
Supreme Court’s conclusion that even the six months in prison is sufficient to warrant the full
guarantees of the right to trial by jury. Accordingly, this Court should grant the writ and reverse
the Seventh Circuit's mistaken interpretation of the Sixth Amendment of the U.S. Constitution.

B. The Seventh Circuit’s Interpretation of “Prejudice” Conflicts With
Other Circuits and District Courts

The Seventh Circuit has ruled that prejudice under Strickland requires a “significant”
increase in one’s prison sentence due to counsel’s ineffective assistance. The Seventh Circuit has
further held, as the instant case demonstrates, that such “significant prejudice” requires, at a
minimum, an increase in a defendant’s sentence of more than two offense levels under the
sentencing guidelines. (App. 1-2).5 The Seventh Circuit’s interpretation of prejudice — that it
must be “significant” and, at a minimum, exceed two offense levels under the sentencing

5 See Durrive, 4 F.3d at 551 (“Adjusting the offense level by two or three steps is exactly the
routine decision that is supposed to be handled at sentencing and on direct appeal. . . . [N]o one
would have dreamed that choices influencing the term of imprisonment within such a narrow
range could be relitigated on collateral attack.”); Martin, 109 F.3d at 1178 (“the sort of increase
produced by a few levels’ difference in sentencing calculations cannot be raised indirectly on
collateral attack by complaining about counsel’s work”), Gil v. United States, 4 F. Supp. 2d 760,
769 (N.D. Ill. 1998) (“This two-point difference does not constitute a significant difference in
Gil’s sentence,” citing Martin), United States v. Hubbard, 1997 WL 639232, *4 (N.D. Ill. Oct. 6,
1997) (“The Seventh Circuit [in Martin] appeared to state a per se rule that a change of two
offense levels would not satisfy the “significant” change requirement.”); Gonzalez v. United
States, 967 F. Supp. 326, 332 (N.D. Ill. 1997) (“Gonzalez — just like Durrive and Martin —

14

guidelines — has not been followed by other courts of appeal or district courts outside the circuit.
Indeed, there is a wide divergence of view among the lower courts on this issue of what
constitutes prejudice under Strickland for sentencing errors.

The Eighth Circuit, for example, has twice taken a diametrically opposite position from
the Seventh Circuit and granted Section 2255 motions nearly identical to Mr. Glover’s action
here. In United States v. Granados, 168 F.3d 343 (8th Cir. 1999), the petitioner challenged his
conviction and 175-month sentence. He was sentenced as an offense level 32, which resulted in
a range of 151-1$8 months. Petitioner’s offense level should have been a level 30, or a range of
121-151 months. The court noted that Granados has been sentenced to additional months in
prison solely “because his attorney was not familiar with the Guidelines.” Jd. at 346. In these
circumstances, the Eighth Circuit did not consider there to be any question that Granados
suffered prejudice and granted Granados’ motion: “There can be little doubt that the petitioner’s
substantial rights are affected if his prison sentence is longer than it should have been.” /d.°
Similarly, in United States v. Ford, 918 F.2d 1343, 1350 (8th Cir. 1990), the Eighth Circuit

found a two offense level error sufficient to satisfy Strickland. As the Ford court noted, “Had

_Ford’s trial counsel objected to the base offense level of 34, it is possible the district court would

have modified the level to reflect Ford’s acceptance of responsibility. Ford’s original sentence,

Footnote continued from previous page

complains about a two-level difference, i.e., a ‘few levels’ difference.’ Such an argument is
barred from review by way of a § 2255 motion pursuant to the holdings of Durrive and Martin.”).

6 In fact, the Granados court raised sua sponte the whole issue of counsel’s ineffective assistance

concerning the Sentencing Guidelines, despite the fact that it had never been raised by petitioner
in his pleadings.

15

300 months, is 38 months longer than the maximum sentence resulting from a base offense level
of 32. Counsel’s error had an effect on Ford’s sentence, and therefore we reverse Ford’s
sentence...” /d.

The D.C. Circuit also has not adopted a “significant prejudice” requirement. In United
States v. Thompson, 27 F.3d 671 (D.C. Cir.), cert. denied, 513 U.S. 1050 (1994), the D.C. Circuit
found the prejudice prong of Strickland was satisfied by a one offense level change. Despite the
United States’ argument that Thompson had not demonstrated prejudice, the D.C. Circuit
disagreed and remanded for a determination as to whether, but for counsel's deficient
performance, Thompson would have been sentenced as if his offense level was 34 instead of 35.
In United States v. Soto, 132 F.3d 56, 59 (D.C. Cir. 1997), the D.C. Circuit also applied the
Strickland test without any “significant prejudice” threshold. The Court found in favor of Soto’s
ineffective assistance claim, noting that Soto’s counsel error would have reduced Soto's sentence
by at least two offense levels (17 months). /d.

The Third Circuit also has analyzed the same fact pattern as Soto, namely, petitioner's
counsel failing to argue for a downward departure under the Guidelines for being a minimal
participant in the conspiracy. United States v. Headley, 923 F.2d 1079 (3d Cir. 1991). The Third
Circuit also did not impose any “significant prejudice” requirement, nor any requirement that the
incorrect sentence involve more than two offense levels. /d. at 1081-82, 1084.

The Second and Ninth Circuits also have declined to graft a “significance” requirement
onto the Strickland prejudice prong and, instead, have found prejudice where the counsel’s
deficient performance causes no additional prison time. These circuits addressed ineffective
assistance of counsel claims in connection with convictions on counts which were to run
concurrently with other, unreviewed convictions. See Jackson v. Leonardo, 162 F.3d 81 (2d Cir.

16

1998); United States v. Palomba, 31 F.3d 1456 (9th Cir. 1994). Even though there was no actual
effect on the petitioner’s sentence, these courts found that the possibility of enhanced sentence
should petitioner be later arrested and sentenced under a repeat offender statutes constituted
sufficient prejudice under Strickland. See Jackson, 162 F.3d at 86; Palomba, 31 F.3d at 1465.’
The D.C. and Ninth Circuits did not debate whether the possibility of later injury from a
conviction on an additional count was “significant.” Nor was there any discussion about whether
the possible later injury equaled a two offense level increase in prison time. These courts
believed that the possibility of an impact on defendant’s sentence was sufficient to satisfy
Strickland: “\t is settled that an error that may increase a defendant’s sentence is prejudicial.”
Palomba, 31 F.3d at 1465 (citations omitted). While recognizing that “the degree of prejudice
may not seem great,” Jackson, 162 F.3d at 86, these circuits held that the mere possibility of a
later enhanced sentence “satisfied the unfair prejudice prong under Strickland and [Lockhart v.]}
Fretwell’s test for ineffective assistance.” Palomba, 31 F.3d at 1466.*

Moreover, even the circuits which have required “significant prejudice” have indicated
that they would not adopi the two-offense level per se rule that the Seventh Circuit applied here.
Thus, the Seventh Circuit in Durrive pointed to the decision in Spriggs v. Collins, 993 F.2d 85

(5th Cir. 1993), in support of its rule. Spriggs had complained of counsel’s failure to object to

7 Other possible sources of prejudice include the stigma of an improper conviction and its possible
use to impeach the defendant’s credibility in future proceedings. 31 F.3d at 1465.

8 in fact, the Ninth Circuit has expressly declined to adopt the “significant prejudice” rule of the
Seventh Circuit: “To begin with, the Ninth Circuit has not adopted Spriggs (and Durrive] and
continues to use the regular Strickland test.” United States v. Wheeler, 81 F.3d 171, 1996 WL
155139 (9th Cir. April 2, 1996). -

17

certain facts in the presentence report which might have affected the judge’s exercise of his
discretion in sentencing. Given the latitude of the judge’s discretion, the Spriggs court required a
showing that the attorney’s deficient performance had led to a significant increase in the
defendant’s prison term. Yet, in Spriggs, the Fifth Circuit was careful to state that the
“significant prejudice” concept should not be the rote, automatic rule of the Seventh Circuit here.
In language which would be controlling in Mr. Glover’s case, the Spriggs court qualified its
“significant prejudice” requirement:

“Significance” is a relative term here.... We note that one

foreseeable exception to this requirement would be when a

deficiency by counsel resulted in a specific, demonstrable

enhancement in sentencing—such as an automatic increase for a

‘career’ offender or an enhancement for use of a handgun during a

felony— which would have not occurred but for counsel’s error.
Id. at n.4. The Fifth Circuit also has made clear that, rather than the Seventh Circuit’s inflexible
rule, the “significance” test in the Fifth Circuit involved the trial court’s consideration of a host
of factors:

In deciding whether such prejudice occurred, a court should consider

a number of factors: the actual amount of the sentence imposed on

the defendant by the sentencing judge or jury; the minimum and

maximum sentences possible under the relevant statute or sentencing

guidelines, the relative placement of the sentence actually imposed

within that range, and the various relevant mitigating and aggravating

factors that were properly considered by the sentences.
Id. at 88-9. See also United States v. Segler, 37 F.3d 1131, 1136 (Sth Cir. 1994) (same).

The Fourth and Tenth Circuits also have accepted the “significant prejudice” requirement,

but these two circuits do not appear to have adopted the Seventh Circuit’s rule that a two-offense
level change is per se insufficient to demonstrate prejudice. In fact, courts in these circuits have

found two-offense level changes to be satisfactory. See, e.g., United States v. Murray, 176 F.3d

18

476, 1999 WL 187192,*5S (4th Cir. 1999) (Strickland prejudice found where counsel’s deficient
performance may have caused petitioner to be sentenced as level 39, rather than level 37); United
States v. Kissick, 69 F.3d 1048 (10th Cir. 1995) (Strickland prejudice found where counsel’s
deficient performance may have caused petitioner to be assigned a criminal history category VI,
rather than a IV) (noting that, “Importantly, the Spriggs [decision] added that ‘one foreseeable
exception to this requirement would be when a deficiency by counsel resulted in a specific,
demonstrable enhancement in sentencing — such as an automatic increase for a ‘career’ offender
or an enhancement for use of a handgun during a felony — which would have not occurred but for
counsel’s error.”” Jd. at 1055); United States v. Harfst, 168 F.3d 398 (10th Cir. 1999) (Strickland
prejudice demonstrated where counsel’s deficient performance may have caused petitioner to be
sentenced at a two or four offense levels too high.); Smith v. United States, 871 F. Supp. 251, 256
(E.D. Va. 1994) (Strickland prejudice found where counsel’s deficient performance may have
caused petitioner to be sentenced as an offense level 40, rather than level 38).

Finally, the Sixth Circuit-has recognized that the Fifth, Seventh and Tenth Circuits “have
modified the second prong of the Strickland test” by requiring “that but for trial counsel’s errors
the defendants’ non-capital sentence would have been significantly less harsh.” Arredondo v.
United States, 178 F.3d 778, 784 (6th Cir. 1999). The Arredondo court also noted that the Fifth
Circuit provided for an “exception” where counsel’s deficient performance resulted in a
“specific, demonstrable enhancement in sentencing,” but that it was “unclear” whether the
Seventh or Tenth Circuit recognized this exception. /d. Because the case before it satisfied even
a heightened standard of prejudice, the Sixth Circuit concluded that it “need not resolve today the

degree of prejudice that is required for Strickland to apply to claims of ineffective assistance

19

during noncapital senter. ing proceedings.” /d. Nevertheless, the Sixth Circuit expressed serious
misgivings about the Seventh Circuit’s reasoning in Durrive, noting

we question whether this issue is best addressed by modifying the

prejudice prong of Strickland. The degree of the attorney’s error

may better be evaluated directly, under Strickland’s performance.
Id.

Here, Mr. Glover suffered from a “clear, demonstrable enhancement in sentencing” due

to his counsel’s deficient performance — he was sentenced at an offense level 28 rather than a
level 26, resulting in an additional sentence of between 6 to 21 months. The Seventh Circuit has
held that Mr. Glover cannot demonstrate prejudice as a matter of law. As demonstrated above,
this decision directly conflicts with the holdings of numerous other circuit courts. The courts of
appeals have expressed widely divergent views on this issue. Accordingly, this Court should
grant certiorari in this case to resolve this conflict and create uniformity in the federal court’s
handling of this important issue.

Cc. The Seventh Circuit’s “Significant Prejudice” Requirement Leads to
Arbitrary And Inconsistent Results

The Seventh Circuit refuses to find constitutionally ineffective assistance of counsel
unless counsel’s error relating to the sentencing guidelines causes a “significant” increase in the
defendant’s sentence. Other than to state that a change in “a few levels” is not sufficient
prejudice, however, the Seventh Circuit has not explained how the lower courts are to determine
what is a “significant” increase in a defendant’s sentence. The inevitable result has been
arbitrary and inconsistent lower court decisions.

Mr. Glover’s case is an example of the problems inherent in the Seventh Circuit’s broad

rule. As an offense level 28, Glover’s sentencing guideline range was 78 to 97 months and he

20

received an 84-month sentence. But for his counsel’s deficient performance, Glover should have
been sentenced as an offense level 26 with a guidelines range of 63 to 78 months. Assuming that
he would have been sentenced to the low end of the correct sentencing range, Mr. Glover
received an “extra” 21 months in prison due to his counsel’s error. Is the Seventh Circuit saying
that 21 months can never rise to the level of “significant prejudice”? The Seventh Circuit has
characterized its “significant prejudice” requirement as “a rule of proportionality.” Martin, 109
F.3d at 1178. Here, Mr. Glover’s sentence was increased by up to 25 percent (21 months
increase on an 84-month sentence). Is the Seventh Circuit’s view that an increase in one’s term
of imprisonment of 25% can never rise to the level of “significant prejudice”? The Seventh
Circuit seems committed to its per se rule that two or three offense levels can never satisfy the
prejudice prong of Strickland. But in some cases, two or three offense levels can mean 89 to 112
months of additional time in prison. See Martin, 109 f.3d at 1183 (Judge Rovner, dissenting).
Does the Seventh Circuit believe that eight or nine additional years in prison is not
“significant”??

Without any real guidance, judges are left to their own unfettered discretion. It is not
surprising in these circumstances that the lower courts’ application of the Seventh Circuit's
“significant prejudice” rule has been inconsistent. Compare, e.g., Allen v. United States, 175
F.3d 560 (7th Cir. 1999) (42 additional months in prison; no prejudice); United States v. Paz,

1997 WL 158338 (N.D. Ill. March 31, 1997) (41 additional months in prison; no prejudice); with

9 “If an increase of eight or nine years is not ‘significant,’ what is? Does the ‘significance’ depend
on the overall length of the petitioner’s term? In other words, would an increase of a year be
‘insignificant’ for someone serving a ten-year term, but ‘significant’ for someone serving a two-
year term?” Martin, 109 F.3d at 1183 (Judge Rovner, dissenting).

21

United States v. Tai, 972 F. Supp. 434 (N.D. Ill. 1997) (15 to 42 additional months in prison;
prejudice found) (“An increase of more than 15 months in the length of a prisoner’s sentence
seems “significant” to us. Jd. at 437); United States v. Hubbard, 1997 WL 639232 (N.D. Ill. Oct.
6, 1997) (40 additional months in prison; prejudice found).

The arbitrary nature of the Seventh Circuit’s rule corrodes public confidence in the
federal judicial system and undermines the purpose of the Sentencing Guidelines. As Judge
Rovner wrote:

I cannot help but believe that in the adoption of this “significant”

test, we have transformed ourselves into a kind of feudal duchy,

with the power to grant or deny a reprieve to wrongfully sentenced

prisoners according to our own whim. This is repugnant not only

to our office as appellate judges but to the Guidelines themselves,

which after all were adopted to achieve greater consistency in

sentencing among similar situated defendants.
Martin, 109 F.3d at 1184. Accordingly, this Court should grant the writ and end these
inconsistent and arbitrary results.

D. This Case Presents An Issue of Recurring Importance

“Familiarity with the structure and basic content of the [Sentencing] Guidelines . . . has
become a necessity for counsel who seek to give effective representation.” United States v. Soto,
132 F.3d 56, 59 (D.C. Cir. 1997) (quoting United States v. Day, 969 F.2d 39, 43 (3d Cir.

1992)).'° It is true, unfortunately, that many attorneys have not successfully mastered the

10 “Whether lawyers get the Guidelines wrong by misinterpreting the implication of a particular
provision or by failing altogether to raise a potentially helpful provision, . . . such drastic missteps
clearly . . . amount to errors ‘so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”” United States v. Soto, 132 F.3d at 59
(quoting Strickland, 466 U.S. at 687).

workings of the Guidelines. Accordingly, the problem of errors by counsel relating to the
Sentencing Guidelines is a common and serious one.

The recurring nature of this issue is reflected in the numerous court of appeals decisions
discussed above. See supra Section B. Yet, these cases do not fully reflect the scope of the
problem. Many more trial court decisions address this issue of counsel’s mistakes in interpreting
the Sentencing Guidelines, including countless cases that go unreported. In the Seventh Circuit
alone, for example, the court of appeals and district courts have addressed th.'s issue on numerous
occasions.!!

In Mr. Glover’s case, as in many cases in the Seventh Circuit and other jurisdictions, the
courts have conceded that the defendant was sentenced to an incorrect prison term under the
Sentencing Guidelines. The courts also have conceded that the defendant’s counsel performed
below the acceptable professional norm. These courts, however, are unwilling to correct these
incorrect sentences. Instead, while acknowledging that “an extra year in custody is significant

from the defendant’s perspective,” Durrive, 4 F.3d at 551, the courts have concluded that it is not

11 See, e.g., Robinson v. United States, 196 F.3d 748, 754 (7th Cir. 1999); Day v. United States, 191
F.3d 455, 1999 WL 528145 (7th Cir. July 20, 1999); Harden v. United States, 191 F.3d 456,
1999 WL 547979 (7th Cir. July 20, 1999); Allen v. United States, 175 F.3d 560 (7th Cir. 1999);
Martin v. United States, 109 F.3d 1177 (7th Cir. 1996); Durrive v. United States, 4 F.3d 548 (7th
Cir. 1993); Unger v. United States, 8 F. Supp. 1151 (E.D. Wis. 1998); Gil v. United States, 4 F.
Supp. 2d 760 (N.D. Ill. 1998); Fout v. United States, 165 F.3d 32, 1998 WL 636780 (7th Cir.
Aug. 27, 1998); Davis v. United States, 1998 WL 142369 (N.D. Ill. March 19, 1998); United
States v. Tai, 972 F. Supp. 434 (N.D. Ill. 1997); Burgos v. United States, 968 F. Supp. 380 (N.D.
Ill. 1997); Gonzalez v. United States, 967 F. Supp. 326 (N.D. Ill. 1997); United States v. Paz,
1997 WL 158338 (N.D. Ill. March 31, 1997);United States v. Hubbard, 1997 WL 639232 (N.D.
Ill. Oct. 6, 1997); United States v. Evans, 1995 WL 423693 *8-9 (N.D. Ill. July 17, 1995).

23

worth their time and attention unless the additional time in prison achieves some unspecified

higher level of “significant increase.”

Having defendants serve prison sentences longer than the period called for by the
applicable laws and regulations is an anathema to the rule of law. It is unjust, unfair and wrong.
Yet, it is the current state of the law, not only for Mr. Glover, but in the Seventh Circuit and
several other circuits. Absent intervention by this Court, more and more defendants will become
victims of this wrongheaded and misguided “significant prejudice” rule. We therefore urge this
Court to grant the writ of certiorari in this case and review this issue of recurring importance.

CONCLUSION
For all of the foregoing reasons, the petition for writ of certiorari should be granted.

Respectfully submitted,

MICHAEL L. WALDMAN
(Counsel of Record)
FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON
1001 Pennsylvania Avenue, NW, Suite 800
Washington, DC 20004
(202) 639-7000

Counsel for Petitioner

207475/DC01

24 ,

APP. 1

2ND CASE of Level | printed in FULL format.

PAUL L. GLOVER. Petitioner-Appeliam. ». UNITED STATES of AMERICA. Respondent-Appeliee

No. 98-402!

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

1999 U.S. App. LEXIS 16876

June 23. 1999 *. Submited

* After an examunation of the briefs and the record. we have concluded that oral argument 1s
unnecessary. Thus. the appeal is submutted on the briefs and the record. See Fed. R. App. P. 34a)

(2).

July 15, 1999, Decided

NOTICE: (*1] RULES OF THE SEVENTH CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO
UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF
APPEALS FOR THIS CIRCUIT.

SUBSEQUENT HISTORY: Reported in Table Case

_- o"eanhosma-ai i 229. 6) S Appr LEXIS 47)

PRIOR HISTORY: Appeal from the United States
District Court for the Northern Districi of Illinois.
Eastern Division. No. 97 C 8382. William T. Han.
Judge.

DISPOSITION: AFFIRMED.

COUNSEL: PAUL L. GLOVER, Petitioner - Appellant.
Pro se. Marion. IL USA.

For UNITED STATES OF AMERICA. Respondent
- Appellee: Stephen Andersson, OFFICE OF THE
UNITED STATES. Chicago, IL USA.

JUDGES: Before Hon. DANIEL A. MANION. Circuit
Judge. Hon. MICHAEL S. KANNE. Circuit Judge.
Hon. DIANE P. WOOD. Circuit Judge.

OPINION: ORDER

Paul Glover was convicted of conspiracy. soliciting
and receiving kickbacks. money laundering. and tax eva-
sion. and was sentenced to 84 months in prison. He filed
a motion under 28 U.S.C. § 2255 to vacate. set aside. or
correct his sentence. on the ground that his lawvers were

ineffective in failing to argue that the sentencing cour _
his conspiracy and kickback offenses under U.S.S.G. §
3D1.2. The district court denied his motion, and we
affirm.

In order (*2] to successfully claim ineffective assis-
tance of counsel. Glover would need to show that his
counsel performed below a constitutional threshold and
that the deficient performance prejudiced him. See
Strickland v. Washington, 466 U.S. 668. 687. 80 L. Ed.
2d 674, 104 S. Ct. 2052 (1984). Even if we were to
assume that Glover's attorneys performed inadequately,
the second prong. prejudice, is missing here. Glover
argues that his attorneys’ failure to argue the correct
imerpretation of U.S.S.G. § 3D1.2 led to an adjusted
offense level two levels higher than 1 should have been.
This court has held that only a significant increase in the
semtence rises to the level of the type of prejudice that
will support an ineffective assistance of counsel claim on
collateral attack. Allen v. United States, 175 F.3d 560.
1999 WL 243623 (7th Cir. 1999); Martin v. United
States, 109 F.3d 1177, 1178 (7th Cir. 1996): Durrive v.
Unued States, 4 F.3d 548, 551 (7th Cir. 1993).

Al sentencing. the district court determined that
Glover's adjusted offense level under the Sentencing
Guidelines was 28 and his criminal history category |*3})
was |, resulting in a sentencing range of 78 to 97 months
in prison. The court selected a midpoint in the range.
sentencing Glover to 84 months in prison. Glover al-
leges that, but for the errors of his counsel, his adjusted
offense level would have been 26, resulting in a range
of 63-78 months imprisonment. Thus, he argues. his
sentence would have been 6 to 2! months lower than

APP. 2

the 84-month sentence he received. Unforwnately for
Glover. under Martin and Durrive. this potential de-
crease 1s not sufficiently significant to be cognizable on

collateral attack.
The judgment of the distnct cour is AFFIRMED

APP #3

PAGE 2
3RD CASE of Level 1 printed in FULL format.

UNITED STATES OF AMERICA, Plaintiff, v. PAUL L. GLOVER,
Defendant.

No. 97 C 8382, (95 CR 40)

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION

1998 U.S. Dist. LEXIS 14238

September 3, 1998, Decided
DISPOSITION: {*1) Defendant's motion to vacate sentence [1] denied.

COUNSEL: For UNITED STATES OF AMERICA, plaintiff (97-CV-8382): AUSA, United
States Attorney's Office, Chicago, IL.

PAUL L GLOVER, defendant (97-CV-8382), Pro se, Marion, IL.

For PAUL L GLOVER, defendant (95-CR-40): George Joseph Murtaugh, Jr., Attorney
st Law, Chicago, Ici.

For PAUL L GLOVER, defendant (95-CR-40): Thomas Michael Breen, Martin, Breen &
Merrick, Chicago, IL.

J. S$. Attorneys: Stephen Dale Anderson, United States Attorney's Office,
Thiago, IL.

JUDGES: William T. Hart, JNITED STATES DISTRICT JUDGE.
SPINIONBY: William T. Hart
PINION: MEMORANDUM OPINION AND ORDER

Following a jury trial, defendant Paul Glover was found guilty of one count
>f a conspiracy in violation of the Racketeer Influenced and Corrupt
S9rganizations Act, 18 U.S.C. @ 1962(d); 11 counts of soliciting and
receiving kickbacks in violation of 18 U.S.C. @ 1954; two counts of money
laundering in violation of 18 U.S.C. @ 1956(a) (1) (B) (i); and four counts of
tax evasion in violation of 26 U.S.C. @ 7206. He was sentenced to concurrent
terms of incarceration with the longest term being 84 months. The term
of incarceration is to be followed by [*2) three years’ supervised release.
Additionally, Glover was required to forfeit $ 325,000. Glover's conviction
and sentence were affirmed on direct appeal, where he was represented by the
same counsel who represented him at trial. See United States v. Glover, 101 F.3d
1183 (7th Cir. 1996). Less than one year after the decision on appeal became
final, Glover filed his present motion pursuant to 28 U.S.C. @ 2255.

Glover presently contends that his guideline sentencing range was incorrectly
calculated in that his money laundering offenses should have been grouped with
his conspiracy and kickback offenses. See U.S.S. G. @ 3D1.2. He further contends
that his counsel were ineffective for failing to adequately raise this issue at
che time of sentencing and for failing to raise the issue at all on direct
appeal. At the time of sentencing, it was determined that Glover's total

oe

APP #4

PAGE 3
1998 U.S. Dist. LEXIS 14238, *

offense level was 28 and his criminal history category was I for a guideline
range of 78 to 937 months. He was sentenced to 84 months’ incarceration. Had

the money laundering been grouped with the conspiracy and kickback offenses,

the total offense level would have been 26 and the guideline range would have
been ([*3) 63 to 78 months. nl Glover's sentence would have had to have been
reduced by at least 6 months and possibly up to 21 months, though it is unlikely
that he would have been sentenced to the low end of the 63-78 month range since
he was not sentenced on the low end of the 78-97 month range. n2

nl The government contends that reducing the newly grouped offense level to
26 would require that. an additional level be added based on the separately

.grouped tax offenses being within 8 points of the 26 offense level. See U.S.S.G.

@ 3D1.4(b). However, the tax offenses had an offense level of 16, not the 18
referred to in the government's brief. Perhaps the government was adding two
points for obstruction of justice, but the probation officer did not recommend
such an adjustment for the tax offenses and no finding to that effect was made.
Since the tax offenses would be 10 levels lower than the other group, no
adjustment would be made. See id. @ 3D1.4ic).

m2 The tax offenses could have been a basis for not sentencing on the low
end. See U.S.S.G. @ 3D1l.4(ic).

At the time plaintiff was sentenced, the Seventh Circuit had not yet
considered the particular grouping issue that Glover now attempts to raise.
Other circuits had held that separate grouping was required. See, e.g., United
States v. Lombardi, 5 F.3d 568, 570-71 (lst Cir. 1993) (grouping money
laundering separate from conspiracy/mail fraud); United States v. Taylor, 984
F.2d 298, 303 (9th Cir. 1993) (grouping money laundering separate from wire
fraud); United States v. Smith, 13 F.3d 1421, 1428 (10th Cir.), cert. denied,
513 U.S. 878 (1994) (grouping money laundering separate from mail fraud). In
United States v. Wilson, 98 F.3d 281, 282-84 (7th Cir. 1996), the Seventh
Circuit held that the @ 1956 money laundering offenses and mail fraud offenses
involved in that case should be grouped. The government apparently concedes that
Wilson would be controlling as to the grouping of Glover's conspiracy, kickback,
and money laundering offenses. Glover was sentenced on September 21, 1995, his
appeal was argued September 13, 1996, and the decision on appeal was issued
December 2, 1996. Wilson was argued April 1, 1996 and issued October 17, 1996.

To succeed on an ([(*5) ineffective assistance of counsel claim, it must be
shown both that counsel's performance was deficient and that the deficient
performance prejudiced the defendant. Melvin v. United States, 78 F.3d 327, 329
(7th Cir.), cert. denied, 519 U.S. 963, 136 L. Ed. 2d 301, 117 S. Ct. 384
(1996). The government contends that counsel's performance could not have
been deficient, at sentencing or on appeal, for failing to raise an issue that
had not yet been decided by the Seventh Circuit. n3} Glover disagrees, arguing
that other case law that predated the sentencing made it clear thst this was a
viable issue that should have been raised by effective counsel. Tne government
also contends that Glover cannot satisfy the prejud.ce component of
an ineffective assistance of counsel claim because “he potential effect on
his sentence is not significant enough to satisfy the prejudice requirement.

APP #5

PAGE 4
1998 U.S. Dist. LEXIS 14236, * ,

ecause it is held that Glover does not satisfy the prejudice requirement, it is
nnecessary to consider the issue of deficient performance. See Melvin, 78 F.3d

it 329.

n3 The government also contends that counsel adequately argued the issue
it sentencing. As discussed below, none of the deficiency of performance issues
eed be resolved. Additionally, the adequacy of trial performance issue need not
e resolved because, even if the grouping issue was adequately argued
t sentencing, there is no dispute that it was not raised at all on appeal.

Claimed errors in guideline calculations generally are not cognizable on a @
255 motion. Martin v. United States, 109 F.3d 1177, 1178 (7th Cir. 1996),
ert. denied, 139 L. Ed. 2d 260, 118 S. Ct. 335 (1997); Durrive v. United
tates, 4 F.3d 548, 549-51 (7th Cir. 1993); Scott v. United States, 997 F.2d 340
7th Cir. 1993). When, as here, the constitutional basis for relief on such a
‘laim is ineffective assistance of counsel, the potential change of sentence
wst be a “significant” amount in order to satisfy the prejudice prong of
nm ineffective assistance of counsel claim. Martin, 109 F.3d at 1178; Durrive,
| F.3d at 551. Durrive involved a maximum reduction of two offense levels with a
ossible reduction of sentence from 120 months’ incarceration to somewhere
yetween 98-and 108 months. n4 The Seventh Circuit held this was not
| significant change that would satisfy the prejudice requirement. In Martin,
he dispute involved a change of one criminal history category, which is
quivalent to two offense levels. The effect in terms of length of incarceration
as not specified. nS The Seventh Circuit appeared to state a per se rule that a
hange of [*7) two offense levels would not satisfy the significant change
equirement. Martin, 109 F.3d at 1178. See also United States v. Hubbard, 1997
.S. Dist. LEXIS 16023, 1997 WL 639232 *4 (N.D. Ill. Oct. 6, 1997); Gonzalez v.
mited States, 967 F. Supp. 326, 332 (N.D. Ill. 1997).

n4 The low end of the guideline range would have been 87 months, but the
eventh Circuit assumed the sentencing judge would not have gone below the
liddle of the guideline range.

nS Martin's original sentence was 137 months. See United States v. Martin,
64 F.2d 714, 716 (7th Cir. 1992); United States v. Martin, 1995 U.S. Dist.
EXIS 3459, 1995 WL 124126 *4 (N.D. Ill. March 20, 1995).

The Seventh Circuit has not directly addressed the question of how much time
ould actually be enough to satisfy the significant change requirement. In
lartin, 109 F.3d at 1178, the court states: “Although we recognized in Durrive
that any extra time in prison is significant from the defendant's perspective,
we adopted a rule of proportionality: the sort of increase produced by a few
*8) levels’ difference in sentencing calculations cannot be raised indirectly
ym collateral attack by complaining about counsel's work.” This implies that a
change of more than a few levels can be significant. But even taking that

APP #6

PAGE S
1998 U.S. Dist. LEXIS 14238, *

implication as authoritative, “few” is not a precise term and the Seventh
Circuit does not indicate how the difference in length of sentence should be
considered. And by referring to proportionality, the Seventh Circuit may be
indicating that the percentage change in sentence is also to be

considered--a one-year increase doubling a one-year sentence may be considered
significant even if a one-year increase to a 30-year sentence is not.

The present case arguably involves a potential change in sentence that is
slightly larger (proportionally) than that involved in Durrive. Durrive involved
an offense level change from 30 to 28 n6 and a sentence reduction of 19 to 18.3
per cent. n? The present case involves an offense level change from 28 to 26 and
@ sentence reduction of 7.1 to 25 per cent. n8 The potential sentence reduction
in the present cass is not large enough to satisfy the significant change
requirement of Durrive and Martin and other cases ([*9] have so held as
to proportionally larger changes. See Unger v. United States, 8 F. Supp. 2d
1151, 1998 U.S. Dist. LEXIS 9303, 1998 WL 337476 *3 (E.D. Wis. June 22, 1998)
(reduction in total offense level from 28 to 24); Davis v. United States, 1998
U.S. Dist. LEXIS 3624, 1998 WL 142369 *3 (N.D. Ill. March 19, 1998) (two-level
reduction changing the sentence of incarceration from 51 months to 37 months).
Because the error claimed in the present case did not have a significant effect
on Glover's sentence, he does not state any basis for granting @ 2255 relief.

n6 United States v. Durrive, 902 F.2d 1221, 1231 n.8 (7th Cir. 1990),
indicates that Durrive's total offense level was 30 (28 plus a two-level
enhancement). With a criminal history category of II, a two-level change would
have changed his guideline range from 108-135 to 87-108, the ranges referred to
in Durrive, 4 F.3d at 549, 551.

n? 120 months reduced by 12 to 22 months.

n8 84 months reduced by 6 to 21 months. However, if like Durrive, it is not
assumed that the potential reduction is to the low end, but instead is to 6
above the low end as was the original sentence, then the maximum reduction is to
69, for a percentage change of 17.9 per cent (15/84).

IT IS THEREFORE ORDERED that defendant's motion to vacate sentence [1) is
denied. The Clerk of the Court is directed to enter judgment in favor of the
government and against defendant denying the @ 2255 motion. If defendant wishes
to appeal this order, he must file a Notice of Appeal to the United States Court
of Appeals for the Seventh Circuit with the Clerk of the Court, United States
District Court for the Northern District of Illinois, 219 South Dearborn Street,
20th Floor, Chicago, Illinois 60604, within sixty (60) days of the entry of the
judgment in this case. Any notice of appeal should be accompanied by a request
for a certificate of appealability, including a statement as to why
a certificate should issue. See 28 U.S.C. @ 2253; Fed. R. App. P. 22(b); 7th
Cir. R. 22.1.

APP #7

PAGE 6
1998 U.S. Dist. LEXIS 14238, °*
William T. Hart

UNITED STATES DISTRICT JUDGE
ated: SEPTEMBER 3, 1998

JUDGMENT IN A CIVIL CASE
ecision by Court. This action came to hearing before the Court. The issues have
een heard and a decision has been rendered.

T IS HEREBY ORDERED AND ADJUDGED that pursuant to Memorandum Opinion and Order
lated September 3, 1998, judgment is entered in favor of the United States
*11) of America and against defendant Paul L. Glover denying the @ 2255

iotion.

ate: 9/3/1998

‘ cue 3 APP #8

United States Court of Appeals

For the Seventh Circuit
Chicago, Dlinois 60604

October 7, 1999

Before
Hon. DANIEL A MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

PAUL L GLOVER, Appeal from the United States
Petitc.ser-Appellant, Distnet Court for the Northern
District of Illinois, Eastern Division
No. 98-402] v.
No. 97 C 8382
UNITED STATES of AMERICA,
Respondent-Appellee William T. Hart, Judge

ORDER

Petitioner-appellant filed a petition for rehearing and petition for rehearing en banc. No
judge in regular active service has requested a vote on the petition for reheanng en banc, and all
of the judges on the panel have voted to deny renearing. The petition for rehearing 1s therefore
DENIED

APPENDIX C —

No.

IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1999

PAUL L. GLOVER, PETITIONER

Vv.

UNITED S“ ATES, RESPONDENT

CERTIFICATE OF SERVICE
Pursuant to this Court’s Rule 29.5(b), I certify that I am a member of the Bar of this

Court. I further certify that on March 6, 2000, at the time of hand delivery to this Court, I served
three copies of the foregoing Petition for Certiorari and the Motion to Proceed In Forma
Pauperis, pursuant to Rules 29.3 and 29.4(a), on counsel for the respondent, whose telephone
number is (202) 514-2201, by depositing a copy of the same, first class postage prepaid, in the
United States mails, addressed to:

Seth P. Waxman, Esq.

Solicitor General of the United States

U. S. Department of Justice, Room 5614
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

As a result, | state pursuant to Rule 29.5 that all parties requi nie

MICHAEL WALDMAN

FRIED, FRANK, HARRIS, SHRIVER &
JACOBSON

i001 Pennsylvania Avenue, NW, Suite 800
Washington, DC 20004

(202) 639-7000

Counsel for the Petitioner

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0402%3A02. Public record. Not legal advice.