Petitioners Brief — Glover v. United States
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
a =n
A FILED
No. 99-8576 AUG 2 8 2000
6 were ——— ~~. ee Se
INTHE
Supreme Court of the United States
PAUL L. GLOVER,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit
BRIEF FOR PETITIONER
MICHAEL L. WALDMAN
(Counsel of Record)
KAMIN. CHAVIS
FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON
1001 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20004
(202) 639-7000
Counsel for Petitioner
NE CR RR RATE EIA ERNE SE A EE SN A CL, ACE RRR ANE Sei te ir SRE eS
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001
rt
668 (1984), for
“significant” in-
v. Washington, 466 U.S.
establishing ineffective assistance of counsel.
1. Whether a defendant must demonstrate a
t
:
prison on ac-
isfy the
466 U.S. 668
was insufficient to
v. Washington
being errone-
in
resulting in the petitioner’s
ously sentenced to an additional 6 to 21 months
his lawyer’s error,
prong of Siri
“prejudice”
2. Whether a 2-level error in the offense level under the sen-
(1984).
count of
(i)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ..cccccccccsccscccscsscesccsecsscceccscees i
Ne i Ge Be ccccccscnsesccecesscssscsscssscsscscsecsscecess iii
TAREE GP AUT ERRI EMD cccccccccccccccccsccccccrsccssccesccecees v
TIT EIIIEINEE cemcncsercesecsnsecsensesemmessencnscssencctsssesecs l
JURISDICTION. ............c0c0000 yensesnenenensnsannpsossnssnenesscessesse l
PERTINENT CONSTITUTIONAL PROVISION ........ l
STATEREENT OF THE CASE....cccccccooccccccsccssccsssosccesees l
1. Conviction and Sentencing .............cccccseesereeeeees l
Be) EE aE AUIErccccccncccsccnesccescscesesescccescssceece 3
SUMMARY OF THE ARGUMENT .............ccccccceeeeeees 5
eT 8
I. NEITHER STRICKLAND v. WASHINGTON
NOR ITS PROGENY PROVIDE ANY
SUPPORT FOR THE SEVENTH CIR-
CUIT’S REQUIREMENT OF “SIGNIFICANT”
FREEADS ccnscsessonsssvscssassccescsscesscssesscsesssseccseess 8
A. The Strickland Court Established the Clear
Rule That The Prejudice Prong Is Satisfied
Where There Is A “Reasonable Probability
That, But For Counsel’s Unprofessional Er-
rors, The Result Of The Proceeding Would
Have Been Ditterent”..........ccccccscrcsscessssessees 8
(iii)
IL
iV
TABLE OF CONTENTS—Continued
B. This Court Has Never Seen Fit To Deviate
From This Prejudice Standard Set Out In
ET LR ae Rae ae
C. The Seventh Circuit's Reliance On Lockhart
v. Fretwell As Support For Its “Significant”
Prejudice Requirement Is Foreclosed By
This Court’s Decision Last Term In Williams
FREI csncscsensenimonicensastinnenienanninabinioniens
D. Glover's 6 To 21 Additional Months Impris-
onment Caused By Counsel’s Ineffective
Assistance Plainly Constitutes The “Differ-
ence In Outcome” Required To Satisfy The
Strickland Prejudice Test ............c.cceeeeeeees
THE SEVENTH CIRCUIT'S REQUIREMENT
OF “SIGNIFICANT” PREJUDICE IS INCOM-
PATIBLE WITH THIS COURT'S MOST
FUNDAMENTAL TEACHINGS REGARDING
THE PROTECTIONS OF THE SIXTH
PRUETT CS cxsscenteemessermenmeriecemeinmenenen
A. The Seventh Circuit's Requirement Of “Sig-
nificant” Prejudice Is Inconsistent With
Argersinger's Holding That Any Term Of
Imprisonment Implicates The Right To
GIN ccnnsssenssennieiemesinpmmmmentennian
B. The Seventh Circuit’s Requirement Of
“Significant” Prejudice Is Inconsistent With
This Court’s Jurisprudence Relating To
Other Sixth Amendment Rights...................
14
19
20
20
24
v
TABLE OF CONTENTS—Continued
Ill. TOALLOW AN INCORRECT SENTENCE OF
IMPRISONMENT TO STAND IS ANATH-
EMA TO THE RULE OF LAW AND CAN-
NOT BE JUSTIFIED ....2.....0c.ccccccsccsccseseseseosscssees
A. The Seventh Circuit’s Concerns About The
Burden Of Reviewing Collateral Attacks On
B. Allowing Illegal Sentences To Stand Would
Defeat The Purpose Of The Sentencing
Guidelines And Lead To Disrespect For The
fF eee
CONCLUSION ..200ccccccccsccssccsscccscccsscccssccsssnssassssnsosncsonsees
Page
27
27
31
35
vi
TABLE OF AUTHORITIES
CASES Page
Allen v. United States, 175 F.3d 560 (7th Cir.
FUIIUD comsnsesensnentenneeneeeenene: 27, 33
Argersinger v. Hamlin, 407 U.S. 25 (1972)....... 20-26, 28
Arrendondo v. United States, 178 F.3d 778 (6th
8 eemqueiemmememuuemnenmpenen 11
Baldwin v. New York, 399 U.S. 66 (1970)............. 21, 26
Cade v. Haley, No. 99-6052, 2000 WL 1166023
(Lith Cir. August 17, 2000) 2000... cccsseeseeeeeeees 30
Cleveland v. Whipkey, 29 Ohio App. 79 (1972)... 25
Codispoti v. Pennsylvania, 418 U.S. 506 (1974)... 26
Darden v. Wainwright, 477 U.S. 168 (1986)......... 12
Dickerson vy. United States, 120 S. Ct. 2326
GEE scesriasnrmncinsdinbaendiinniiatintiiiantiaamaenitnibieabainetnttants 28
District of Columbia v. Clawans, 300 U.S. 617
a aneciscennnseennnniiiieeien 25
Duncan v. Louisiana, 391 U.S. 145 (1968) ........... 26
Durrive v. United States, 4 F.3d 548 (7th Cir.
SU cxnsnsnesnnnemenasiamunenemenaniniatenncemetennemetes passim
Fuentes v. Shevin, 407 U.S. 67 (1972)............0000008 28
Gil v. United States, 4 F. Supp. 2d 760 (N.D. Ill.
ITI aE ccnsistrentenismentunensiinnnenmeininnetinneniestinnpaaiummecnss 32
Hill v. Lockhart, 474 U.S. 52 (1985) ..........cccccceeees 11
In re Oliver, 333 U.S. 257 (1948) ..........ccccccceeeeees - 24
Jackson v. Leonardo, \62 F.3d 81 (2d Cir 1998) .. 19
Janvier v. United States, 793 F.2d 449 (2d Cir.
SUITE conmnnssunmssussnsesnninentutemeepenenememnmenes: tenmmmnene 1}
Kimmelman v. Morrison, 477 U.S. 365 (1 986)...... 1]
Koon v. United States, 518 U.S. 81 (1996)............ 32, 33
Kyles v. Whitley, 514 U.S. 419 (1995) 00.00... eee 30
Landry v. Hoepfner, 840 F.2d 1201 (Sth Cir. 1988)
Oi BI cncnsseneesneneseennemmee 25
Lassiter v. Dep't of Social Services of Durham
County, N.C., 452 U.S. 18 (1981)... eeeeeeees 23
vii
TABLE OF AUTHORITIES—Continued
Page
Lockhart v. Fretwell, 506 U.S. 364 (1993)....6, 11, 14-18
Martin v. United States, 109 F.3d 1177 (7th Cir.
1996), cert. denied, 522 U.S. 931 (1997)...4, 20, 28, 32
Martinez v. Court of Appeal of California, Fourth
Appellate District, 120 S. Ct. 684 (2000) .......... 23
McMann v. Richardson, 397 U.S. 759 (1970)....... 22
Mempa v. Rhay, 389 U.S. 128 (1967)... 11
Nichols v. United States, 511 U.S. 738 (1994) ...... 23
Nix v. Whiteside, 475 U.S. 157 (1986)................... 17
Penson v. Ohio, 488 U.S. 75 (1988) ........ccceceeeeees 13
Roe v. Flores-Ortega, 120 S. Ct. 1029 (2000)....... 11,13
Scott v. Illinois, 440 U.S. 367 (1979).......00006 7, 20, 22-24
Scott v. United States, 997 F.2d 340 (7th Cir.
TD ceneensecsennnemenenmenememan 29
Smith v. Murray, 477 U.S. 527 (1986)........cc00000000 1]
Smith v. Robbins, 120 S. Ct. 746 (2000)... ......... 9,11, 12
Spriggs v. Collins, 993 F.2d 85 (Sth Cir. 1993)..... 15, 30
Stanley v. Illinois, 405 U.S. 645 (1972)... 28
State v. Tweedy, 209 Neb. 649 (1981) ........ceeseees 25
Steagald v. United States, 451 U.S. 204 (1981)..... 9
Strickland v. Washington, 466 U.S. 668 (1984)..... passim
Strickler v. Greene, 527 U.S. 263 (1999).......cc00008 30
United States v. Banuelos-Rodriguez, No. 96-
50297, U.S. LEXIS 13691 (9th Cir. June 14,
TED ccscsrensesestipennerenmnememenmminnimnete 32
United States v. Breckenridge, 93 F.3d 132 (4th
ae, FE ccecesenstcccesesnasnsnsnessesssensenqsesnsnsassunensssece 11
United States v. Cronic, 466 U.S. 648 (1984) ....... 13
United States v. Fayette, 895 F.2d 1375 (1 ith Cir.
ET ccnensntenesnenenieneneuetnmemeengremmetemeammeseiemmnnass 32
United States v. Ford, 88 F.3d 1350 (4th Cir.), cert.
denied, 519 U.S. 999 (1996) ......ccccscereeeereeereeeeees 34
Vill
TABLE OF AUTHORITIES—Continued
Page
United States v. Hanger, 991 F.2d 791 (4th Cir.
ee 1]
United States v. Hubbard, 1997 WL 639232 (N.D.
> GER, G, Fe Pccnssenetemminnnmmntenenein 33
United States v. Jackson, 921 F.2d 985 (10th Cir.
Se 33
United States v. Kissick, 69 F.3d 1048 (10th Cir.
1995), cert. denied, 519 U.S. 1138 (1997)......... 11
United States v. Mannino, 212 F.3d 835 (3d Cir.
we eiesnedananbtabiaienintnibation menace 13
United States v. Palomba, 31 F.3d 1456 (9th Cir.
TE ceccrenrenpusiestitnnstaiaaineieiiniiiiiitintiitesinaiieninen 20
United States v. Paz, 1997 WL 158338 (N.D. Iil.,
ee 27, 33
United States v. Phillips, 210 F.3d 345 (Sth Cir.
SEED casecssesrennnenmnneeeendioneenneemanmanenenenen 15
United States v. Ray, 828 F.2d 399 (7th Cir
| 11
United States v. Reilley, 948 F.2d 648 (10th Cir
| ee 24
United States v. Severson, 3 F.3d 1005 (7th Cir
ee 30, 31
United States v. Seyfert, 67 F.3d 544 (Sth Cir
ee 1]
United States v. Tai, 972 F. Supp. 434 (N.D. Ill
STD ceunssensenemennenmmeneigmemmenenennnte 33
United States v. Tayman, 885 F. Supp. 832 (E.D
WED, Feel eresssssnscnemenannentsntgssetesinetenmenen 34
United States v. Wilson, 98 F.3d 281 (7th Cir.
ee 3,9, 19
ix
TABLE OF AUTHORITIES—Continued
Page
Williams v. Taylor, 163 F.3d 860 (4th Cir. 1998),
rev'd, 120 S. Ct. 1495 (2000) ........ccccsseesseeseesees 16
Williams v. Taylor, 120 S. Ct. 1495 (2000) .........000 6, 11,
14, 16-18
STATUTES
OB UGE. © FES Ge ccceveccnesssccsccssnsssscessssssessess l
BB ULB.L.. § BSG CERIO cccccscssnsvccsvesssmneveseesseccssccsee 2
BB UBL. © FREE Gee cccsccvcceccessscveccseseesvscnssnseees l
BS UAL. © BEG Ge ccsrnccsscscsssnesesnssssssesvesassscees 29
Do fen 29, 32
BB. UBL. © Tae CRB SeP ceseseserccccvsvscssscscsssvcnessceseee 2
BB UBL. § SVE CERI SP cevcecessssessnscssses0se1s ceveccsseneesee 32
BD UBB. © BBS Cae cxcececcccvsecscsevesssessessssveceseses l
BB UBL. © FESS CRIP ceccccccevsccesessvsccsvvcccsecesesecees 12
SD UBL. § TESS GB OOD cessccccsscscssesecscsccsssescceseccees 3, 29
RULES AND REGULATIONS
United States Sentencing Commission, Guidelines
Manual, § 3D1.2, 3D1.4 (Nov. 1998).............. 2, 19, 31
SB Fa, Raw, FED (OGG ED ecevececccescescssesevsesensessssesece 30
OTHER AUTHORITIES
Breyer, The Federal Sentencing Guidelines and the
Key Compromise Upon Which They Rest, 17
HOPSTRA L. REV. 1 (1998).........sccsccsssrsssseeseeeees 32
Junker, The Right to Counsel in Misdemeanor
Cases, 43 WASH. L. REV. 685 (1968)..........0006 25
S. Rep. No. 96-553 (1980) .......csscsseereerserneeereeenes 33
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 Joint Ap-
pendix at J.A. 52. The opinion of the United States District
Court for the Northern District of Illinois was not published and
is reproduced in the Joint Appendix at J.A. 42.
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. (J.A. 55). The petition for certiorari was filed on March
6, 2000, and was granted on June 26, 2000. This Court has ju-
risdiction under 28 U.S.C. § 1254(1).
PERTINENT CONSTITUTIONAL PROVISION
The relevant constitutional provision is the Sixth Amendment
to the United States Constitution, which provides that
In- all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been com-
mitted; which district shall have been previously ascer-
tained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining wit-
nesses in his favor, and to have the assistance of counsel
for his defence.
STATEMENT OF THE CASE
1. Conviction and Sentencing
On June 22, 1995, petitioner Paul Glover was found guilty by
a federal jury of one count of 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
2
in violation of 18 U.S.C. § 1956(a)(1)(B)(1); and four counts of
tax evasion in violation of 26 U.S.C. § 7206. (J.A. 42). His con-
viction arose out of his conduct in connection with a series of
investments made with money from the pension and health and
welfare funds of the Chicago Truck Drivers, Helpers and Ware-
house Workers Union, where Mr. Glover was employed as Vice
President and General Counsel.
In the Preliminary Presentence Investigation Report (“PPSI’”),
the United States Probation Office recommended grouping the
money laundering and kickback counts pursuant to Sentencing
Guidelines § 3D1.2. (J.A. 70-71). The United States filed a po-
sition paper objecting to the PPSI, including as its first argument
that the money laundering and kickback offenses should not be
grouped together under USSG § 3D1.2 and that Glover therefore
should receive a two-level multiple count adjustment under
USSG § 3D1.4. Mr. Glover’s counsel filed no written response.
At the sentencing hearing, the court asked petitioner’s counsel
to address the government’s objections to the grouping of of-
fenses. In response, counsel simply stated a few sentences re-
flecting his belief that “I just think [the grouping] appropriate,”
without any case citations or detailed reasoning. (J.A. 89). The
trial court ruled for the government and ordered that the money
laundering and kickback offenses be treated separately. Based
on this decision, the court added two levels to Glover’s offense
level. (J.A. 85). The trial court then 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. Petitioner was sentenced to 84 months’ incarceration.
(J.A. 93).
Mr. Glover appealed and was represented by the same coun-
sel who represented him at trial and sentencing. On appeal, his
counsel raised two issues: (i) that the trial judge had improperly
admitted certain testimony into evidence; and (ii) that the trial
judge had improperly increased his offense level based on a
finding that Glover had perjured himself. Counsel did not
3
challenge at any time during the appeal the trial court’s refusal
to group together the money laundering and kickback offenses.
The conviction and sentence were affirmed by the Seventh Cir-
cuit in an opinion filed December 2, 1996. (J.A. 129). Mr.
Glover’s counsel did not seek certiorari from this Court.
2. Section 2255 Action
On November 26, 1997, Mr. Glover filed his present action to
correct his sentence in the U.S. District Court for the Northern
District of Illinois pursuant to 28 U.S.C. § 2255. He asserted
that section 2255 relief should be granted because his former
counsel was ineffective in failing to assert or pursue the group-
ing issue concerning his money laundering and kickback of-
fenses. Glover's petition alleged that by failing to prepare a
written response to the government’s objections to the PPSI and
by failing to present an oral argument at the sentencing hearing,
counsel had been ineffective at the trial level in not setting forth
the arguments and case law supporting the PPSI position.
Glover's petition also alleged that he received ineffective as-
sistance of counsel on appeal because his counsel never at any
time raised the grouping issue in the appellate court. Mr. Glover
noted that, along with other case law calling into question the
trial court’s ruling on the grouping issue, the Seventh Circuit
decision in United States v. Wilson, 98 F.3d 281, 282-84 (7th
Cir. 1996), had held that money laundering offenses and mail
fraud offenses should be grouped together in cases like his. The
Wilson case was issued on October 17, 1996, while Mr.
Glover’s appeal was still pending before the court of appeals.
(J.A. 129).
In his Section 2255 motion, Mr. Glover claimed that his
counsel’s ineffective assistance during sentencing and appeal
had caused Glover to receive an incorrect sentence. As a result
of counsel’s alleged ineffectiveness, Glover’s sentencing range
was increased by two levels due to the separate treatment of the
money laundering and kickback offenses. Mr. Glover was sen-
4
tenced 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 offenses been grouped with
the kickback offenses, the total offense level would have been
26, resulting in a guideline range of 63 to 78 months. Mr.
Glover asserted that, due to his counsel’s deficient performance,
his sentence was incorrectly extended by at least 6 months and
possibly up to 21 months. (J.A. 40-41).
The federal district court dismissed petitioner’s Section 2255
motion. The district court noted that “(t]he government appar-
ently concedes that Wilson would be controlling as to the group-
ing of Glover’s conspiracy, kickback, and money laundering of-
fenses.” (J.A. 44). The district court found it unnecessary, how-
ever, to consider whether counsel’s performance was deficient
under the first prong of the two-part test for ineffective assis-
tance of counsel set forth in Strickland v. Washington, 466 U.S.
668 (1984). (J.A. 45). The court instead ruled that Glover failed
to demonstrate the requisite prejudice under the second prong of
the Strickland test. The district judge noted that Seventh Circuit
precedent required that “[w]hen, 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.” (J.A. 45). 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 con-
cluded that the Seventh Circuit had stated a per se rule that a
change of two offense levels would not be sufficient to consti-
tute “significant prejudice.” (J.A.46). Accordingly, the district
court held that “[bJecause the error claimed in the present case
[between 6 and 21 months of additional imprisonment] did not
have a significant effect on Glover’s sentence, he does not state
any basis for granting § 2255 relief.” (J.A. 47).
5
The Seventh Circuit affirmed on appeal, relying on the same
rationale as the lower court. The court of appeals assumed that
Mr. Glover had satisfied the first prong of Strickland by demon-
strating that counsel had performed below professional stan-
dards. (J.A. 53). The Seventh Circuit held, however, that under
the test established by that court in Durrive and Martin, Mr.
Glover could not demonstrate sufficient prejudice to satisfy the
second prong of Strickland. The Seventh Circuit stated, in per-
tinent part:
This court has held that only a significant increase in the
sentence rises to the level of the type of prejudice that will
support an ineffective assistance of counsel claim on col-
lateral 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. Unfortu-
nately for Glover, under Martin and Durrive, this potential
decrease is not sufficiently significant to be cognizable on
collateral attack.
(J.A. 53-54) (citations omitted).
SUMMARY OF THE ARGUMENT
In this case, defense counsel’s ineffective assistance caused
the petitioner to be incorrectly sentenced. There is no dispute
that, under the controlling case law, the sentencing guidelines
calculation for petitioner was incorrect and excessive. Yet, the
Seventh Circuit held that 6 to 21 additional months in prison
due to counsel’s deficient performance relating to sentencing
was not “sufficiently significant” to satisfy the prejudice prong
6
of the ineffective assistance of counsel standard. The lower
court’s ruling, and the “significant” prejudice test on which it is
based, is inconsistent with this Court’s well established prece-
dent concerning the prejudice prong of Strickland. It also is
contrary to this Court’s teachings concerning the Sixth Amend-
ment right to counsel and other Sixth Amendment protections.
Further, the lower court’s decision conflicts with sound policy
and elemental concepts of justice.
In Strickland v. Washington, 466 U.S. 668 (1984), this Court
established the standards for demonstrating ineffective assis-
tance of counsel. The Strickland Court ruled that a defendant
satisfies the prejudice prong of the ineffectiveness test where he
shows a “reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been dif-
ferent.” /d. at 694. This Court has consistently adhered to
Strickland and applied its specific language describing the
prejudice test to all types of claims of ineffective assistance of
counsel. In the numerous decisions since Strickland, this Court
has never articulated any requirement for “significant” prejudice
or otherwise mandated that a defendant meet a threshold for the
magnitude of the harm suffered due to counsel’s ineffectiveness.
The Seventh Circuit’s “significant” prejudice requirement is
derived from its interpretation of Lockhart v. Fretwell, 506 U.S.
364 (1993). The Seventh Circuit understood Lockhart as adding
to the prejudice prong a requirement that the result be “funda-
mentally unfair or unreliable.” The Seventh Circuit believed
that a defendant could only show a “fundamentally unfair or un-
reliable” result by showing a “significant” increase in sentence
caused by counsel’s ineffective assistance. Yet, as this Court
held last term in Williams v. Taylor, 120 S.Ct. 1495 (2000),
Lockhart is the unusual case and will ordinarily “have no effect
on the prejudice inquiry under Strickland.” In Williams, the
Court explicitly rejected the “erroneous view” — which underlies
the Seventh Circuit’s “significant” prejudice test here — “that a
‘mere’ difference in outcome is not sufficient to establish consti-
7
tutionally ineffective assistance of counsel.” Jd. at 1515. Peti-
tioner’s 6 to 21 months of additional and incorrect imprison-
ment caused by counsel’s ineffectiveness plainly demonstrates
the “difference in outcome” required by Strickland.
The Seventh Circuit's “significant” prejudice test also con-
flicts with this Court's Sixth Amendment jurisprudence. This
Court has held that any term of imprisonment, no matter how
short, implicates the constitutional right to counsel. Argersinger
v. Hamlin, 407 U.S. 25 (1972); Scott v. Illinois, 440 U.S. 367
(1979). The principles set forth in the Argersinger line of cases
— that “no person may be deprived of his liberty who has been
denied the assistance of counsel as guaranteed by the Sixth
Amendment” — cannot be reconciled with the Seventh Circuit's
view that an additional 6 to 21 months of imprisonment caused
by counsel’s deficient performance is not “significant.” The
Court also has found no requirement for a “significant” term of
imprisonment in the application of the other Sixth Amendment
protections afforded in criminal prosecutions, such as the right
to a public trial, right to notice of the charges, right to confront
witnesses, and right to compel testimony. In fact, even for the
right to trial by jury where the length of imprisonment is consid-
ered, this Court has upheld the right to a jury trial in any prose-
cution for an offense with a term of imprisonment exceeding six
months.
In adopting its “significant” prejudice requirement, the Sev-
enth Circuit was plainly motivated in part by concerns about the
burden habeas challenges place on the federal judiciary. Vindi-
cation of basic constitutional rights should not be denied, how-
ever, on the basis that the judicial procedures to enforce them
are time consuming or expensive. Moreover, the Seventh Cir-
cuit’s fears are overblown. Only a limited number of petitioners
will be able to identify with specificity a particular guideline
provision which was incorrectly calculated and make the re-
quired showing of a different outcome by a “reasonable prob-
ability.”
8
The Seventh Circuit's refusal to correct erroneous sentences
unless the period of undeserved imprisonment is “sufficiently
significant” is bad policy and anathema to the rule of law. Up-
holding incorrect sentences thwarts the purposes of Congress in
enacting the Sentencing Guidelines, by allowing disparities in
sentences to flourish. Moreover, the Seventh Circuit's “signifi-
cant” prejudice rule calls into question the judiciary’s commit-
ment to fairness. It offends core notions of justice and liberty
for a judicial system to knowingly require an individual to serve
undeserved time in prison.
ARGUMENT
I. NEITHER STRICKLAND v. WASHINGTON NOR
ITS PROGENY PROVIDE ANY SUPPORT FOR
THE SEVENTH CIRCUIT’S REQUIREMENT OF
“SIGNIFICANT” PREJUDICE
A. The Strickland Court Established The Clear Rule
That The Prejudice Prong Is Satisfied Where
There Is A “Reasonable Probability That, But
For Counsel’s Unprofessional Errors, The Result
Of The Proceeding Would Have Been Different”
This Court in the seminal case of Strickland v. Washington,
supra, addressed the proper standards for judging a criminal de-
fendant’s contention that the Constitution requires the setting
aside of his conviction or sentence because his counsel’s assis-
tance was ineffective. 466 U.S. at 671. Strickland involved a
federal habeas petitioner who claimed that he had received inef-
fective assistance of counsel during his sentencing proceeding.
In that case, the Court announced a rigorous two-part test to de-
termine whether counsel’s assistance was so defective that the
trial “cannot be relied on as having produced a just result.” /d.
at 686. The first part of the Strickland test requires that a defen-
dant “show that counsel’s performance was deficient.” /d. at
687. The second prong of Strickland requires that “the defen-
9
dant must show that the deficient performance prejudiced the
defense.” Id.
Only the “prejudice” prong of the Strickland test is at issue in
this case. Neither the federal district court nor the court of ap-
peals considered the first prong of the Strickland test in ruling
against Glover. Rather, while acknowledging that Glover’s sen-
tence was incorrect under the controlling decision of United
States v. Wilson, 98 F.3d 281, 282-84 (7th Cir. 1996), the courts
below concluded that petitioner could not satisfy the second
prong of Strickland.’ It is the lower court’s interpretation of this
second part of the Strickland test — by requiring that petitioner
demonstrate a “significant” increase in his sentence to satisfy
the prejudice prong and concluding that an incorrect sentence of
an additional 6 to 21 months imprisonment is not “sufficiently
significant” — which is before the Court in this case.
' It is well established that a court may consider the prejudice prong first
and need not reach the deficient performance component. “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient preju-
dice, which we expect will often be so, that course should be followed.”
Strickland, 466 U.S. at 697; see also Smith v. Robbins, 120 S. Ct 746, n.14
(2000).
> In opposing certiorari, the Government argued that the performance of
Glover’s counsel was not professionally deficient and thus Glover failed
Strickland’ s first prong. United States Brief in Opposition to Petition for
Writ of Certiorari, at 7-9. As petitioner demonstrated in its Reply Brief in
Support of its Petition, this attack on Glover's Petition was unavailing. The
federal district court and court of appeals each decided this case against
Glover solely on the grounds that Mr. Glover could not satisfy the “signifi-
cant prejudice” requirement under Strickland’ s second prong. In addition,
the Governm. nt never raised the issue of the first prong of Strickland in the
court of appeals below. It is therefore not available to the respondent in this
Court. See, e.g., Steagald v. United States, 451 U.S. 204, 209 (1981). More-
over, Mr. Glover’s original counsel's failure to bring the directly controlling
authority of Wilson, 98 F.3d at 281, to the courts’ attention plainly calls that
counsel's performance into serious question. See Reply Brief, at 4.
10
The prejudice prong grew out of the Strickland Court’s rec-
ognition that attorney errors “are as likely to be utterly harmless
in a particular case as they are to be prejudicial.” /d. at 693.
Accordingly, the Court placed the burden on the defendant to
show that the error of counsel “actually had an adverse effect on
the defense.” It is “not enough” for the defendant to show that
the errors might have had “some conceivable effect on the out-
come of the proceeding.” /d. On the contrary, the Strickland
Court directed that
The defendant must show that there is a reasonable prob-
ability that, but for counsel's unprofessional errors, the re-
sult of the proceeding would have been different.
Id. at 694. In other words, “the court making the prejudice in-
quiry must ask if the defendant has met the burden of showing
that the decision reached would reasonably likely have been dif-
ferent absent the errors.” /d. at 696.
Thus, the Strickland Court announced a prejudice test based
on whether counsel’s deficient performance led to a different
result. As the language of the Court’s opinion makes clear, the
Strickland Court does not require the defendant to show “sig-
nificant prejudice,” nor does it demand that the defendant make
some threshold showing concerning the magnitude of the differ-
ent results caused by counsel’s deficient performance.
oe. -
B. This Court Has Never Seen Fit To Deviate From
This Prejudice Standard Set Out In Strickland
The Strickland Court expressly held that its two-part test for
ineffectiveness should apply in federal collateral proceedings, as
well as on direct appeal and a motions for a new trial. Strick-
land, 466 U.S. at 698. . The Cqurt also anticipated that this test
would be applied to the “infinite variety” of attorney errors. /d.
at 693. Following its own guidance, the Court has subsequently
employed the Strickland standard to evaluate all types of claims
of ineffective assistance of counsel by criminal defendants.’
When assessing the prejudice prong of a Strickland claim, the
Court has consistently relied on the language requiring “a rea-
sonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” See,
e.g., Roe v. Flores-Ortega, 120 S. Ct. 1029 (2000) (applying
Strickland to claim of ineffectiveness based on counsel’s failure
to file notice of appeal; quoting Strickland “different result” test
for prejudice); Williams v. Taylor, 120 S. Ct. 1495 (2000) (ap-
plying Strickland standard to claim of ineffectiveness based on
counsel’s failure to investigate and present substantial mitigat-
ing evidence during the capital sentencing proceeding; quoting
“different result” test for prejudice); Hill v. Lockhart, 474 U.S.
52 (1985) (applying Strickland standard to claim of ineffective
assistance in non-capital plea context; quoting “different result”
test for prejudice); Kimmelman v. Morrison, 477 U.S. 365
(1986) (applying Strickland standard to counsel’s failure to file
a suppression motion; quojimg “different result” test for preju-
* For example, the Strickland test has been applied to errors of counsel on
appeal, see, e.g., Smith v. Robbins, 120 S. Ct. 746, 764 (2000); Smith v.
Murray, 477 U.S. 527, 535-36 (1986), as well in the noncapital plea process,
eee Hill v. Lockhart, 474 U. S. 52 (1985). In addition, every circuit court that
has addressed the issue has foynd that Strickland applies to the non-capital
sentencing context. See, ¢.g., Amedondo v. United States, 178 F.3d 778 (6th
Cir. 1999), United Stgtes Vv. ” Breckenridge, 93 F.3d 132 (4th Cir. 1996);
United States v. Wheeler, 81 F.3d 171 (9th Cir. 1996); United States v.
Kissick, 69 F.3d 1048 (10th Cir. 1995), cert. denied, 519 U.S. 1138 (1997);
United States v. Seyfert, 67 F.3d 544, 548 (Sth Cir. 1995); United States v.
Hanger, 991 F.2d 791 (4th Cir. 1993); United States v. Ray, 828 F.2d 399,
421 & n.25 (7th Cir. 1987); Janvier v. United States, 793 F.2d 449, 456 (2d
Cir. 1986); see also Mempa v. Rhay, 389 U.S. 128 (1967) (right to effective
assistance of counsel exists in non-capital sentencing context). As discussed
in the next section, however, the Seventh Circuit and some other circuit
courts have incorrectly applied Strickland in the sentencing context by misin-
terpreting Lockhart v. Fretwell, 506 U.S. at 364.
12
dice); Darden v. Wainwright, 477 U.S. 168 (1986) (applying
Strickland standard to claim that trial counsel failed to ade-
quately prepare the case presenting mitigating evidence; quoting
“different result” test for prejudice).
The Court’s recent decision in Smith v. Robbins, 120 S. Ct.
746 (2000), is instructive. There, Robbins filed a federal habeas
corpus petition pursuant to 28 U.S.C. § 2254 attacking his con-
viction for second degree murder in California state court. He
claimed, inter alia, that his appellate counsel had rendered inef-
fective assistance in failing to file an appeals brief, thereby
waiving two meritorious arguments. Because the issue of his
counsel’s performance on appeal had not been addressed by the
courts below, the Robbins Court remanded to the lower courts,
Stating:
On remand, the proper standard for evaluating Robbins’s
claim that appellate counsel was ineffective in neglecting
to file a merits brief is that enunciated in Strickland vy.
Washington, 466 U.S. 668 (1984)... . If Robbins succeeds
in [his deficient performance] showing, he then has the
burden of demonstrating prejudice. That is, he must show
a reasonable probability that, but for his counsel’s unrea-
sonable failure to file a merits brief, he would have pre-
vailed on his appeal. See 466 U.S. at 694 (defendant must
show “a reasonable probability that, but for counsel's un-
professional errors, the result of the proceeding would have
been different’).
120 S. Ct. at 764. There is no mention of demonstrating “sig-
nificant” prejudice or that any other showing is required to sat-
isfy the prejudice prong of Strickland.* Furthermore, it is hard
to imagine how the length of the imprisonmein at issue could be
‘The Smith v. Robbins opinion also makes no mention of Lockhart or any
requirement that petitioner show that the result of the proceeding at issue was
fundamentally unfair or unreliable. See infra, Section L.C.
13
relevant to determining whether petitioner would have prevailed
on appeal.”
Moreover, the prejudice issue which the Court went on to ad-
dress in Robbins was whether Robbins was required to show
any actual prejudice. Robbins, 120 S. Ct. at 764. Robbins is
thus typical of numerous decisions discussing Strickland preju-
dice; rather than requiring significant prejudice as the Seventh
Circuit proposes, the principal inquiry often is whether the
criminal defendant should be required to show any actual preju-
dice or whether prejudice can be presumed. See, e.g., Roe v.
Flores-Ortega, 120 S. Ct. at 1037 (issue was “whether we re-
quire the defendant to show actual prejudice. . . or whether we
instead presume prejudice”); Penson v. Ohio, 488 U.S. 75
(1988) (same); United States v. Cronic, 466 U.S. 648, 659
(1984) (same). This is a dramatically different inquiry and a far
cry from the showing of “significant” actual prejudice urged by
the Seventh Circuit here.
This Court has never articulated any requirement for “signifi-
cant” prejudice or otherwise mandated that the defendant meet
some threshold for the degree to which counsel’s deficient per-
formance injured the defendant. Rather, this Court has under-
stood in all cases that, if there is a reasonable probability that
counsel’s unprofessional! conduct had any harmful impact on the
outcome of the proceeding, the defendant’s Sixth Amendment
right to counsel has been violated.
* In the case of such an error on appeal, the usual result is a remand to the
district court for further proceedings which may or may not result in a more
favorable ultimate sentence for petitioner. See, e.g., United States v.
Mannino, 212 F.3d 835, 844 (3d Cir. 2000) (“The test for prejudice under
Strickland is not whether petitioners would likely prevail upon remand, but
whether we would have likely reversed and ordered a remand had the issue
been raised on direct appeal.”).
14
C. The Seventh Circuit’s Reliance On Lockhart v.
. Fretwell As Support For Its “Significant” Preju-
; dice Requirement Is Foreclosed By This Court’s
Decision Last Term In Williams v. Taylor
The Seventh Circuit announced its “significant” prejudice test
in Durrive v. United States, 4 F.3d 548 (7th Cir. 1993), a case,
like petitioner’s, involving a claim of ineffective assistance of
counsel relating to the federal sentencing guidelines determina-
tion. In formulating the test, the Durrive court relied heavily on
its reading of this Court’s decision in Lockhart v. Fretwell, 506
U.S. 364 (1993). As the ruling last term in Williams v. Taylor,
120 S. Ct. 1495 (2000), made clear, that reliance was entirely
misplaced.
The Lockhart Court considered whether defendant Fretwell
could show ineffective assistance of counsel based on his attor-
ney’s failure during a capital sentencing hearing to invoke a cir-
cuit court decision that was later overturned. Fretwell con-
tended that if counsel had made a timely objection, the trial
court would have been compelled to follow then-controlling, but
subsequently invalidated, Eighth Circuit law. Under the more
favorable precedent, Fretwell would have been sentenced to life
imprisonment rather than death. Ruling against Fretwell, the
Lockhart Court reasoned that:
an analysis focusing solely on mere outcome determina-
tion, without attention to whether the result of the proceed-
ing 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.
506 U.S. at 369-70.
Seizing on this language, the Seventh Circuit interpreted
Lockhart as mandating an inquiry under Strickland’s “preju-
dice” prong into whether the ultimate result of the proceeding at
issue was “fundamentally unfair or unreliable.” Durrive, 4 F.3d
at 551. The circuit court opined that in the absence of “[g]rave
15
errors by judge and counsel,” misapplication of the federal Sen-
tencing Guidelines does not make the sentence “unreliable
or... fundamentally unfair.” /d. Without giving any precise
formulation, the Seventh Circuit concluded that only an error
having a “significant” impact on the defendant's sentence could
be condemned as unfair or unreliable.° Unfortunately for Dur-
rive and petitioner, the court considered sentencing guidelines
errors of ‘only’ two offense levels (or between 12 to 33 addi-
tional months imprisonment for Durrive and 6 to 21 months for
petitioner) insufficient to render the sentence “fundamentally
unfair.” Durrive, 4 F.3d at 551.
Anextra year in custody is significant from the defendant’s
perspective. But the difference between 120 months and
108 or even 98 . . . does not demonstrate that the actual
sentence is “unreliable . . . or fundamentally unfair”— [it]
is not... a “significant” difference. ... [W]e therefore
conclude that Durrive has not established “prejudice”
within the meaning of Strickland.
Id!
° The Seventh Circuit borrowed the “significant” impact formulation from
Spriggs v. Collins, 993 F.2d 85 (Sth Cir. 1993). In Spriggs, the Fifth Circuit
held that when considering claims of ineffectiveness at a state sentencing
hearing, the federal reviewing court “must determine whether there is a rea-
sonable probability” that absent counsel’s unprofessional errors the defen-
dant’s sentence “would have been significantly less harsh.” /d. at 88 (empha-
sis in original). The Spriggs opinion, however, cites no Supreme Court au-
thority for its decision to modify the Strickland test. Furthermore, Spriggs
was concerned about the broad latitude and discretion given state court
judges in sentencing and the possibility that any smal! error might satisfy the
Strickland test by arguably affecting the result at sentencing. This concern
reflects a misunderstanding of the “reasonable probability” standard of
Strickland, and in any event the problem is far removed from the application
of the highly structured federal sentencing guidelines. See United States v.
Phillips, 210 F.3d 345, 350-52 (Sth Cir. 2000).
’ The Seventh Circuit’s erroneous interpretation of Lockhart as requiring a
showing that counsel's incompetence rendered a proceeding “fundamentally
16
In Williams v. Taylor, 120 S. Ct. 1495 (2000), this Court con-
sidered and definitively rejected a nearly identical interpretation
of Lockhart. As in Durrive and petitioner’s case, the lower
court in Williams denied the defendant’s habeas petition, even
though it acknowledged a reasonable probability that counsel’s
incompetence at the sentencing hearing resulted in an increased
sentence. Williams v. Taylor, 163 F.3d 860, 867-69 (4th Cir.
1998), rev'd, 120 S. Ct. 1495 (2000). Relying on Lockhart, the
lower court opined that it was not enough that “the outcome
would have been different but for counsel’s error.” /d. at 867.
The Fourth Circuit, like the Seventh Circuit, interpreted Lock-
hart as requiring that a defendant claiming ineffective assistance
of counsel show that the result was “fundamentally unfair or un-
reliable.” Jd. at 869."
This Court granted certiorari and reversed the denial of ha-
beas relief. The Williams Court made clear that Lockhart did
not modify or supplant the simple prejudice standard set forth in
Strickland.” The Court reiterated that the “correct standard” is
unfair or unreliable” might logically be applied to all claims of ineffective
assistance of counsel on direct as well as collateral review. Thus far, how-
ever, the circuit court has reserved the new test for claims of sentencing er-
rors presented on collateral review.
* According to the court of appeals:
As the Lockhart majority made clear, the requirement that a criminal
defendant alleging prejudice show that the result of the proceeding was
unfair or unreliable was the rule, not the exception.
* * *
The holding in Lockhart — that a criminal defendant must show that
counsel’s performance rendered the proceeding fundamentally unfair
or unreliable to establish prejudice — is not limited to the ‘unusual’
case.
Williams v. Taylor, 163 F.3d at 869.
* Even the dissent in Williams concurred in this interpretation of Lockhart.
See Williams, 120 S. Ct. at 1525 (Rehnquist, C.J., dissenting).
OOO
PPE EN PE BO ON OIE ad ate Cac BO
Og ae
PDR OPE! GLO
17
the Strickland requirement that the defendant show that “but for
counsel’s unprofessional errors, the result . .. would have been
different.” Williams, 120 S. Ct. at 1502 (quoting Strickland,
466 U.S. at 694).
Lockhart, the Williams Court explained, describes an exceed-
ingly narrow exception to the ordinary prejudice rule. The de-
nial of relief in Lockhart reflected the highly unusual facts of the
case. While a competent performance by defense counsel would
have led to a different result, it was for an improper reason —
counsel would have been relying on a decision which was sub-
sequently discredited and overruled. Under these extraordinary
circumstances, the Lockhart Court had considered it “unjust to
characterize the likelihood of a different outcome as legitimate
‘prejudice.”” Williams, 120 S. Ct. at 1512 (emphasis added)."°
Turning to the more usual circumstances presented by Wil-
liams, the Court emphasized that “the Strickland test provides
sufficient guidance for resolving virtually all ineffective-
assistance-of-counsel claims.” /d. at 1512. The Williams Court
expressly adopted Justice O’Connor’s concurring opinion in
Lockhart which stressed this precise point:
I write separately only to point out that today’s decision
will, in the vast majority of cases, have no effect on the
prejudice inquiry under Strickland v. Washington, 466 U.S.
668 (1984). The determinative question — whether there is
a reasonable probability that, but for counsel’s unprofes-
sional errors the result would have been different, id., at
'’ The Court considered counsel's failure to take advantage of a subse-
quently invalidated decision as most closely analogous to Nix v. Whiteside,
475 U.S. 157 (1986). Williams, 120 S. Ct. at 1512-13. The Nix Court re-
fused to find prejudice in counsel’s interference with the petitioner’s intended
perjury. Nix, 475 U.S. at 175-76. Much like Nix’s attempt to use perjured
testimony, Fretwell sought an unwarranted “windfall” since he was attempt-
ing to rely on counsel’s failure to raise case law which was later invalidated.
Williams, 120 S. Ct. at 1512.
18
694 — remains unchanged. This case, however, covers the
unusual circumstance where the defendant attempts to
demonstrate prejudice based on considerations that, as a
matter of law, ought not inform the inquiry.
Williams, 120 S. Ct. at n.18 (quoting Lockhart, 506 U.S. at
373).'' The Court unambiguously rejected the view that the
Strickland prejudice test should have a magnitude threshold,
chiding the lower court for “its erroneous view that a ‘mere’ dif-
ference in outcome is not sufficient to establish constitutionally
ineffective assistance of counsel.” Williams, 120 S. Ct. at 1515.
Plainly, the Seventh Circuit’s “significant prejudice” test is
inconsistent with this Court’s conclusion that a “‘mere’ differ-
ence in outcome” establishes prejudice under Strickland. Ac-
cordingly, the Seventh Circuit’s requirement of a “significant”
increase in sentence cannot survive this Court’s ruling in Wil-
liams.
'' Justice O'Connor further explained in Lockhart that
the court making the prejudice determination may not consider 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 the omission. That narrow holding, of
course, precisely disposes of this case as it appeared before the
Eighth Circuit.
* * *
[T]he impact of advocating a decidedly incorrect point of law, like
the influence of perjured testimony, is not a proper consideration
when assessing the likelihood of a result more favorable to the de-
fendant. Strickland, supra, 466 U.S. at 695.
Lockhart, 113 S. Ct. at 845.
cect tC Tt INTE LI ‘ ‘
19
D. Glover’s 6 To 21 Additional Months Imprison-
ment Caused By Counsel’s Ineffective Assistance
Plainly Constitutes The “Difference In Outcome”
Required To Satisfy The Strickland Prejudice
Test
Paul Glover plainly satisfies the prejudice standard set forth
in Strickland. In Mr. Glover’s case, the “mere difference in out-
come” is 6 to 21 months of additional imprisonment. By failing
to urge grouping of petitioner’s money laundering offenses with
his conspiracy and kickback offenses under USSG § 3D1.2, and
by failing to bring the controlling decision of United States v.
Wilson, 98 F.3d 281, 282-84 (7th Cir. 1996), to the attention of
the court of appeals, his counsel’s deficient performance caused
Mr. Glover to receive an incorrect sentence. While Mr. Glover
was sentenced to a term in prison of 84 months, he would have
been properly sentenced in the guideline range of 63 to 78
months had his counsel not acted below the professional mini-
mum in connection with the sentencing guidelines. Mr. Glover
can clearly show that, “but for [his] counsel’s unprofessional
errors, the result of the proceeding would have been different” —
he would have received a sentence that was at least 6 months
(and up to 21 months) shorter.
The district court and appeals court assumed that Mr. Glover
could demonstrate that “but for counsel’s unprofessional er-
rors,” he would have received a different sentence. The lower
courts’ decisions turn solely on whether this 6 to 21 month dif-
ference in sentence constitutes the “significant” prejudice re-
quired by the Seventh Circuit. Absent the requirement of a
“significant” increase in sentence added by the Seventh Circuit
in contravention of the teachings of this Court, the difference in
Mr. Glover’s sentence of 6 to 21 additional months in prison
plainly satisfies the Strickland prejudice test. See also Jackson
v. Leonardo, 162 F.3d 81 (2d Cir. 1998) (even though there was
no actual effect on petitioner’s sentence, the possibility in the
future of an enhanced sentence under repeat offender statutes
20
constituted sufficient prejudice under Strickland); United States
v. Palomba, 31 F.3d 1456 (9th Cir. 1994) (similar)."”
Il. THE SEVENTH CIRCUIT’S REQUIREMENT OF
“SIGNIFICANT” PREJUDICE IS INCOMPATI-
BLE WITH THIS COURT’S MOST FUNDAMEN-
TAL TEACHINGS REGARDING THE PROTEC-
TIONS OF THE SIXTH AMENDMENT
A. The Seventh Circuit’s Requirement Of “Signifi-
cant” Prejudice Is Inconsistent With Arger-
singer’s Holding That Any Term Of Imprison-
ment Implicates The Right To Counsel
Strickland and other cases addressing ineffective assistance of
counsel claims grow out of this Court’s right to counsel juris-
prudence. It is black letter law that the constitutional right to
counsel under the Sixth Amendment is implicated by any term
of imprisonment, no matter how short. Argersinger v. Hamlin,
407 U.S. 25 (1972); Scott v. Illinois, 440 U.S. 367 (1979). The
Seventh Circuit’s “significant” prejudice test, which is not satis-
fied by 6 to 21 months additional imprisonment caused by coun-
'? Even under the Seventh Circuit’s erroneous interpretation of Lockhart,
it is hard to comprehend how 6 to 21 undeserved months in prison could not
be considered “fundamentally unfair or unreliable.” There is no basis for
assuming that only “significant” terms of undeserved imprisonment are “fun-
damentally unfair or unreliable.” As one judge noted:
Nowhere does Lockhart suggest that a sentencing may still be de-
scribed 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 dis-
trict court or on direct appeal. Nothing in Lockhart remotely suggests
that only when an attorney’s ineffectiveness results in a ‘significantly’
harsher sentence may the prejudice be recognized on collateral review.
Martin v. United States, 109 F.3d 1177, 1182-83 (7th Cir. 1996) ‘Rovner, J.,
dissenting from denial of en banc review), cert. denied, 522 U.S. 931 (1997).
21
sel’s ineffective assistance, cannot be reconciled with this well-
settled Supreme Court authority.
In Argersinger, this Court found no merit to 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 before the Court in that case. There,
Argersinger had been unrepresented by counsel in connection
with a misdemeanor offense which had a maximum punishment
of six months imprisonment. He had been convicted and sen-
tenced to serve 90 days in prison. Argersinger challenged the
conviction on the grounds that his Sixth Amendment right to
counsel had been violated. In response, the State argued that a
defendant had no right to counsel for trials of misdemeanors
where the punishment imposed on the defendant was less than
six months imprisonment.
The Argersinger Court unanimously reversed the conviction,
holding that petitioner was entitled to counsel in any case result-
ing in imprisonment. The Court rejected the contention that
“prosecutions for crimes punishable by imprisonment for less
than six months may . . . be tried without a lawyer.” 407 U.S. at
30-31. The Argersinger Court found no historical support for
such a position. In addition, it considered such a rule to be con-
trary to the critical importance of the role of counsel: “[t}he as-
sistance of counsel is often a requisite to the very existence of a
fair trial.” Jd. The right to counsel had “relevance to any crimi-
nal triai, where an accused is deprived of liberty.” /d. at, 32.
Uni ke the Seventh Circuit here, the Supreme Court in
Argersinger saw no reason to differentiate based on the length
of the term of imprisonment. 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 repercussions. . .” /d. (quoting Baldwin v.
New York, 399 U.S. 66, 73 (1970). Accordingly, the
Argersinger Court held:
22
We hold, therefore, that absent a knowing and intelligent
waiver, no person may be imprisoned for any offense,
whether classified as petty, misdemeanor or felony, unless
he was represented by counsel at his trial.
** *
[N]o person may be deprived of his liberty who has been
denied the assistance ¢f counsel as guaranteed by the Sixth
Amendment. This holding is applicable to all criminal
prosecutions, including prosecutions for violations of mu-
nicipal ordinances. The denial of the assistance of counsel
will preclude the imposition of a jail sentence.
Argersinger, 407 U.S. at 37 (internal quotations and citations
omitted). "”
This Court again emphasized the special nature of imprison-
ment in Scott. Scott addressed a defendant who was ultimately
fined and not imprisoned. The defendant argued that he was
entitled to the assistance of appointed counsel because he was
subject to a possible jail term of one year under the applicable
statute. The Scott Court disagreed, while reaffirming its
'* Argersinger considered a situation in which the defendant was denied
counsel, whereas petitioner here was represented by ineffective counsel.
Drawing a distinction between these two cases would make a mockery of this
Court's recognition that “the right to counsel is the right to the effective assis-
tance of counsel.” McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)
(emphasis added). A defendant who faces the prosecutor represented by in-
competent counsel is injured just as surely as a defendant who is given no
counsel at all, because both defendants are unconstitutionally hindered in
their efforts to present a vigorous defense. As the Strickland Court ex-
plained, the “Sixth Amendment recognizes the right to the assistance of coun-
sel because it envisions counsel’s playing a role that is critical to the ability
of the adversarial system to produce just results. An accused is entitled to be
assisted by an attorney . . . who plays the role necessary to ensure that the
trial is fair.” Strickland, 466 U.S. at 685. Accordingly, having “a person
who happens to be a lawyer . . . present at trial alongside the accused . . . is
not enough to satisfy the (Sixth Amendment)].” /d.
- oe
23
Argersinger decision and stressing the prejudicial nature of ac-
tual imprisonment to a defendant.
[W]e believe that the central premise of Argersinger — that
actual imprisonment is a penalty different in kind from
fines or the mere threat of imprisonment — is eminently
sound and warrants adoption of actual imprisonment as the
line defining the constitutional right to appointment of
counsel.
Scott, 440 U.S. at 373."
The Seventh Circuit test before the Court here would allow an
additional term of imprisonment of 6 to 21 months because of
counsel’s ineffective assistance. Yet in Argersinger and Scott,
this Court ruled that the Sixth Amendment would not tolerate
any deprivation of liberty without effective counsel available to
assist the defendant.'> This Court unambiguously held that any
' Writire for the Court, 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 crimi-
nal 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 concurring in the result
also observed that “any deprivation of liberty is a serious matter.” Id.
at 41.
Scott, 440 U.S. at 372-73 (citations omitted).
'S The Supreme Court has confirmed the continued vitality of Argersinger
and Scott on numerous occasions. See Martinez v. Court of Appeal of Cali-
fornia, Fourth Appellate District, 120 S. Ct. 684, 687 (2000) (citing
Argersinger for the proposition that “The Sixth and Fourteenth Amendments
of our Constitution guarantee that a person brought to trial in any state or
federal court must be afforded the right to the assistance of counsel before he
can be validly convicted and punished by imprisonment.”), Nichols v. United
States, 511 U.S. 738 (1994) (“We adhere to that [Scott] holding today” and
follow the “logical consequence of the holding”); Lassiter v. Dep't of Social
24
imprisonment implicated the protections of the Sixth Amend- -
ment’s right to counsel. The well established Sixth Amendment
principles in Argersinger and Scott directly contradict the Sev-
enth Circuit's “significant” prejudice test for evaluating ineffec-
tive assistance of counsel claims.
B. The Seventh Circuit’s Requirement Of “Signifi-
cant” Prejudice Is Inconsistent With This
Court’s Jurisprudence Relating To Other Sixth
Amendment Rights
The Sixth Amendment provides a defendant with certain
specified protections in “all criminal prosecutions.” U.S.
CONST., amend. VI. The defendant’s right “to have the assis-
tance of counsel for his defence” is only one of the rights guar-
anteed by the Sixth Amendment. /d. Other rights enumerated in
the Sixth Amendment include the right to a public trial, right to
have notice of the state’s accusations, right to confrontation,
right to call witnesses, and right to a jury trial. The Seventh
Circuit’s ruling in this case — that 6 to 21 additional months im-
prisonment is not sufficiently “significant” to warrant habeas
relief — clashes with this Court’s approach to these various
rights under the Sixth Amendment.
In applying these other Sixth Amendment rights, this Court
has not concerned itself with whether the magnitude of the term
of imprisonment faced by the defendant was “significant.” For
example, defendants are entitled to the “public trial” conferred
by the Sixth Amendment irrespective of the severity of the pen-
alty imposed. See, e.g., /n re Oliver, 333 U.S. 257 (1948) (right
Services of Durham County, N.C., 452 U.S. 18, 25 (1981) (Argersinger “es-
tablished that counsel must be provided before any indigent may be sen-
tenced to prison, even where the crime is petty and the prison term brief.”’);
see also United States v. Reilley, 948 F.2d 648, 654 (10th Cir. 1991) (apply-
ing Argersinger and Scott to strike conditionally suspended sentence of im-
prisonment).
\
'
)
25
to public trial found applicable to state proceeding even though
penalty was only a 60-day sentence). The Court also has set
aside a conviction of a “petty” offense punishable by imprison-
ment for not more than 90 days because the trial court improp-
erly restricted the right of cross-examination guaranteed by the
Sixth Amendment. District of Columbia v. Clawans, 300 U.S.
617 (1937). The fact that the defendant faced a “petty offense”
with short terms of imprisonment was not relevant to the
Court’s determination of whether these Sixth Amendment rights
applied. As the Court noted, “It is simply not arguable, nor has
any court ever held, that the trial of a petty offense may be held
in secret, or without notice to the accused of the charges, or that
in such cases the defendant has no right to confront his accusers
or to compel the attendance of witnesses in his own behalf.”
Argersinger, 407 U.S. at 28 (quoting with approval, Junker, The
Right to Counsel in Misdemeamor Cases, 43 WASH.L.REV.
685, 705 (1968)).'°
The right to trial by jury is the only Sixth Amendment protec-
tion which has attached any weight to the length of the defen-
'° See also Landry v. Hoepfner, 840 F.2d 1206 (Sth Cir. 1988) (en banc)
(“the fact that an offense is ‘petty’ for these purposes does not mean that in a
prosecution for it the accused is not entitled to the other constitutional protec-
tions, including those in the Sixth Amendment, afforded the criminal defen-
dant.”); State v. Tweedy, 209 Neb. 649, 655 (1981) (“| N]o defendant may be
imprisoned for any offense, whether a traffic infraction, misdemeanor, or
felony, absent a knowing and intelligent waiver of . . . the right to assistance
of counsel, the right to confront witnesses against them, the right to a jury
trial where otherwise authorized, and the privilege against self-
incrimination.”); City of Cleveland v. Whipkey, 29 Ohio App. 2d 79, 85
(1972) (“It is our holding that under the Fifth and Sixth Amendments of the
United States Constitution a defendant in a misdemeanor case is entitled to be
advised by the trial court of his rights and privileges, including the privilege
against self-incrimination, right to trial by jury in all but petty crimes, right to
be informed of the nature of the charge against him, right to confront wit-
nesses against him and the right to the assistance of counsel for his de-
fense.”).
26
dant’s possible sentence. In a series of cases, this Court con-
cluded that the right to a jury trial is guaranteed by the Sixth
Amendment for any offense where the potential punishment is
imprisonment of six months or more. See, e.g., Baldwin v. New
York, 399 U.S. 66 (1970); Duncan v. Louisiana, 391 U.S. 145
(1968).'’ This limitation on the trial by jury is grounded in the
historical genesis of this right, with “petty offenses” historically
tried to a judge and trial by jury historically limited to “serious”
as opposed to “petty” criminal offenses. 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.
Because “the right to trial by jury has a different genealogy
and is brigaded with a system of trial to a judge alone,” it is not
applicable to the right to counsel which is implicated by any
term of imprisonment. Argersinger, 407 U.S. at 29; see also id.
at 30-31 (“While there is historical support for limiting the
‘deep commitment’ to trial by jury to ‘serious criminal cases,’
there is no such support for a similar limitation on the right to
assistance of counsel. ... We reject, therefore, the premise that
since prosecutions for crimes punishable by imprisonment for
less than six months may be tried without a jury, they may also
be tried without a lawyer.”). The right to counsel at issue in this
case — like the right to public trial, right to notice, right to con-
frontation, and right to call witnesses in one’s defense guaran-
teed in all criminal prosecutions — applies to any deprivation of
liberty by imprisonment. Nevertheless, given the Seventh Cir-
cuit’s conclusion here that up to 2! months additional impris-
'’ The Supreme Court's right to jury trial “decisions have established a
fixed dividing line between petty and serious offenses: those crimes carrying
a sentence of more than six months are serious crimes and those carrying a
sentence of six months or less are petty crimes.” Codispoti v. Pennsylvania,
418 U.S. 506, 512 (1974).
27
onment was not “significant,’””’* it is telling that even the right to
a trial by jury — the lone Sixth Amendment right which does
look to the length of the defendant’s sentence — fully applies to
any period of imprisonment greater than six months.
Il. TO ALLOW AN INCORRECT SENTENCE OF
IMPRISONMENT TO STAND IS ANATHEMA TO
THE RULE OF LAW AND CANNOT BE JUSTI-
FIED
For any individual to be wrongfully incarcerated is repugnant
to our system of laws. Imprisonment is always a terrible thing,
which must inevitably entail the degradation of the human spirit.
At the core of the U.S. Constitution and our judicial system lies
society’s efforts to ensure that no person suffers such a punish-
ment incorrectly in any measure. Nevertheless, while acknowl-
edging that “an extra year in custody is significant from the de-
fendant’s perspective,” Durrive, 4 F.3d at 551, the Seventh Cir-
cuit apparently concluded that it was not worth the courts’ time
and attention to correct an illegal sentence caused by ineffective
counsel unless the additional time in prison reached some un-
specified level of “significant” increase. To the contrary, allow-
ing any illegal sentence to stand is intolerable and cannot be jus-
tified.
A. The Seventh Circuit’s Concerns About The Bur-
den Of Reviewing Collateral Attacks On Incor-
rect Sentences Are Misplaced
In explaining its rationale for the “significant” prejudice re-
quirement, the Seventh Circuit seemed especially concerned that
a failure to adopt a tougher “prejudice” standard would lead to
* In fact, the Seventh Circuit has held that more than 40 additional months
in prison does not satisfy its “significant” prejudice standard. See, e.g., Allen
v. United States, 175 F.3d 560 (7th Cir. 1999) (42 additional months impris-
onment); United States v. Paz, 1997 WL 158338 (N.D. lil., March 31, 1997)
(41 additional months imprisonment).
28
numerous such habeas petitions being filed. The Seventh Cir-
cuit opined that “[a]lmost any error at sentencing may be recast
as a challenge to counsel.” Durrive, 4 F.3d at 550. The Seventh
Circuit expressed dismay that habeas petitioners might be able
to attack incorrect sentences by circumventing Seventh Circuit
doctrine that precluded sentencing guidelines mistakes from be-
ing raised in habeas proceedings. /d. at 550-51; see also Martin,
109 F.3d at 1178. By requiring a “significant” increase in sen-
tence (which it equated with more than two offense levels), the
Seventh Circuit intended to “save[ ] everyone the time and ag-
gravation [these] collateral proceeding[s]” entail. Durrive, 4
F.3d at 552.
These types of concerns should not sway this Court in evalu-
ating the constitutional rights asserted by Mr. Glover. As this
Court has frequently noted, adherence to the Constitution is not
without its costs.'” As an obvious example, the monetary costs
required to implement Argersinger’s holding that counsel must
be afforded to indigents in misdemeanor cases were not insub-
stantial. Argersinger, 407 U.S. at 2012 & n.7 (estimating im-
plementation will require at least | ,575 additional fulltime law-
yers to represent indigent misdemeanants). This Court also has
recognized that there are societal costs associated with enforcing
the Fourth Amendment's rights against unreasonable search and
seizure, in that guilty criminals sometimes will go free. See
Dickerson v. United States, 120 S. Ct. 2326, 2336 (2000). Ad-
dressing habeas petitions filed by prisoners is simply another
one of the burdens of our Constitution and system of laws.
'’ As this Court noted in Fuentes v. Shevin, 407 U.S. 67 (1972):
“(T]he Constitution recognizes higher values than speed and effi-
ciency. Indeed, one might fairly say of the Bill of Rights in general,
and the Due Process Clause in particular, that they were designed to
protect the fragile values of a vulnerable citizenry from the overbear-
ing concern for efficiency and efficacy. . .”
Id. at 90 n.22 (quoting Staniley v. Illinois, 405 U.S. 645, 650 (1972)).
~4 ee ae
29
Moreover, the Seventh Circuit’s concerns about a surfeit of
Section 2255 motions seem overblown. It is not true that any
sentencing error can be “recast” as an ineffective assistance of
counsel claim. Counsel frequently will have acted in a profes-
sionally competent manner in the sentencing process, having
made all the necessary objections and arguments. While the
prisoner may have strong arguments that the trial and/or appeals
judges erred in interpreting the sentencing guidelines in these
cases, the arguments cannot be translated into challenges to
counsel’s effectiveness. Contrary to the Seventh Circuit’s fears,
the ineffectiveness of counsel claim is not infinitely mutable and
is not applicable to a substantial number of cases.”
The Seventh Circuit also ignores the important qualification
in Strickland’s statement of the prejudice standard that a defen-
dant must show a “reasonable probability” that counsel's unpro-
fessional errors caused the result to be different. Strickland, 466
U.S. at 693-95. The Seventh Circuit seems to assume that ha-
beas petitioners will be able to easily overcome the “reasonable
probability” hurdle. We believe such an assumption to be un-
warranted, While the Seventh Circuit is correct that “almost any
of counsel’s actions has a potential effect on a sentence,” Dur-
rive, 4 F.3d at 550, this is not the standard. “A reasonable prob-
ability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694; see also Kyles v.
Whitley, 514 U.S. 419, 434 (1995). As the Strickland Court
stated, “It is not enough for the defendant to show that the errors
” Moreover, the premise of the Seventh Circuit's concern is that habeas
petitioners will use the right to counsel as a means of circumventing that cir-
cuit’s prohibition on review of sentencing guidelines issues in Section 2255
petitions. See Scott v. United States, 997 F.2d 340, 342-43 (7th Cir. 1993).
This Court, however, has never reviewed the correctness of this underlying
premise, which is of questionable validity since any sentence outside the
properly computed guideline range is (absent lawful departures) an illegal
sentence under 18 U.S.C. §§ 3551(a) & 3553(b) and thus can be corrected
under 28 U.S.C. § 2255, as the plain language of that provision states.
30
had some conceivable effect on the outcome of the proceeding.”
Strickland, 466 U.S. at 693. Petitioners will need to adduce
specific facts and cite to relevant law to convince a court that
there was a “reasonable probability” of success. Only a rela-
tively small number of petitioners will be able to come remotely
close to satisfying this standard.”
In addition, the nature of the Sentencing Guidelines them-
selves will limit the number of petitions and the time required
by the courts to review these petitions. The Guidelines operate
by listing a number of offense and offender characteristics and
calculating a defendant’s sentence based on these characteris-
tics.” As a result, sentencing under the Guidelines is a highly
structured, formulaic process. See Proposed Sentencing Guide-
lines for United States Courts, 52 Fed. Reg. 3920 (1987)
(“Through commentary and specific guideline provisions, the
Commission offers objective criteria to guide the exercise of
structured discretion by the judge.”); see also United States v.
Severson, 3 F.3d 1005, 1013 (7th Cir. 1993) (“The Sentencing
Guidelines brought a formulaic method to sentencing . . .””).~
* See, e.g., Strickler v. Greene, 527 U.S. 263, 296 (1999) (although the
petitioner adequately demonstrated that the prosecution failed to disclose
exculpatory evidence, petitioner failed to show that there was a “reasonable
probability that his conviction or sentence would have been different had
these materials been disclosed”); Cade v. Haley, No. 99-6052, 2000 WL
1166023, at *3 (11th Cir. Aug. 17, 2000) (despite presenting testimony by
three mental heaith experts and five community acquaintances, petitioner
failed to show a reasonable probability of a different result).
~ The highly structured and specific nature of the Sentencing Guidelines
is in marked contrast with the “wide sentencing discretion” of the Texas’
sentencing scheme which led Spriggs v. Collins, 993 F.2d 85, 88 (Sth Cir.
1993), to adopt the “significant” prejudice requirement. Given the concrete-
ness and specificity of the Sentencing Guidelines, there is none of the unfet-
tered discretion that led the Spriggs court to worry that Strickland would be-
come an “automatic rule of reversal.” /d.
>’ There is very little discretion for a sentencing court within the sentenc-
ing guidelines. Most all complaints regarding sentencing guidelines calcula-
31
Consequently, a petitioner seeking habeas relief must identify a
particular part of the guideline calculation in his case which was
adversely affected by his counsel’s ineffective assistance. In
this case, Mr. Glover was able to point to his counsel’s unpro-
fessional error relating to the grouping of money laundering of-
fenses with kickback offenses under Section 3D1.2 of the Sen-
tencing Guidelines. Few petitioners will be able to identify this
type of specific, detailed guidelines error. Moreover, because of
the requisite specificity of the guidelines error which must be
identified in a petition, a reviewing court will be able to focus
on the precise issue and quickly resolve the petition.”
B. Allowing [Illegal Sentences To Stand Would De-
feat The Purpose Of The Sentencing Guidelines
And Lead To Disrespect For The Rule Of Law
More importantly, petitioner believes that it is the Seventh
Circuit’s approach — establishing an especially tough “preju-
dice” test for habeas review of ineffective assistance of counsel
claims relating to sentencing guidelines errors — which is poor
policy. The benefits inherent in reviewing the habeas petitions
of Glover and others where counsel’s errors caused incorrect
sentences under the guidelines far outweigh the costs in judicial
“time and aggravation” cited by the Durrive Court. One impor-
tant benefit of such a collateral review is to promote the uni-
formity of sentences. A chief goal of the Sentencing Guidelines
was to “avoid[ }] unwarranted sentencing disparities among de-
fendants with similar records who have been found guilty of
similar criminal conduct...” 28 U.S.C. § 991(b) (2000); see
tions involve specific determinations resulting in ‘demonstrable enhance-
ments.”” Brief of United States to U.S. Court of Appeals for the Seventh Cir-
cuit, Glover v. United States (February 23, 1999), at 17.
= Contrary to the Seventh Circuit’s concerns, numerous cases also could
be quickly and easily resolved based on the “deficient performance” prong of
Strickland.
32
also 18 U.S.C. § 3553 (2000) (“Sentencing Reform Act of 1984
attempts to promote sentencing uniformity . . .”); Koon v.
United States, 518 U.S. 81, 113 (1996) (“The goal of the Sen-
tencing Guidelines is, of course, to reduce unjustified disparities
. [and to] provide uniformity, predictability and a degree of
detachment lacking in our earlier system.”).”> This goal of uni-
formity in sentences will be defeated if courts do not correct
mistaken sentences caused by unprofessional counsel. Mr.
Glover received a sentence which is outside the range estab-
lished by the guidelines for individuals with similar criminal
backgrounds and offenses. Under the Seventh Circuit's rule,
some defendants would serve prison sentences which are many
years longer than their comparable ‘peers’ who committed the
same offenses.”° In implementing the sentencing guidelines,
courts have not been permitted to adopt sentencing practices
*> See also United States v. Banuelos-Rodriguez, No. 96-50297, U.S.
LEXIS 13691 (9th Cir., June 14, 2000) (The Guidelines “sought reasonable
uniformity in sentencing by narrowing the wide dispai.ty in sentences im-
posed for similar criminal offenses committed by similar offenders.” /d. at
*12.); United States v. Fayette, 895 F.2d 1375, 1381 (11th Cir. 1990) (“The
Guidelines were promulgated to rationalize the sentencing process by . . .
promoting ‘uniformity in sentencing by narrowing the wide disparity in sen-
tences imposed by different federal courts for similar criminal conduct by
similar offenders.’”); Breyer, The Federal Sentencing Guidelines and the
Key Compromise Upon Which They Rest, 17 HOFSTRA L. REV. 1, 4-5 (1998)
(A key Congressional purpose in enacting sentencing guidelines “was to re-
duce ‘unjustifiably wide’ sentencing disparities.”).
*° The Seventh Circuit's test leads to extreme disparities in sentences. The
Seventh Circuit has concluded that an error of two or three offense levels is
not “significant prejudice.” See Durrive, 4 F.3d at 551; Martin, 109 F.3d at
1178; Gil v. United States, 4 F. Supp. 2d 760, 769 (N.D. Ill. 1998). But, in
some cases, two or three offense levels can mean 89 to 112 months of addi-
tic.sal time in prison. See Martin, 109 F.3d at 1183 (Rovner, J., dissenting
from denial of en banc petition). Thus, the sentencing disparities for compa-
rable defendants may reach eight or nine years.
33
which thwart Congress’ intent of promoting uniformity in sen-
tences,”’ and the same should be true here.
Congress recognized that disparities in sentences corrodes
public confidence in the federal judicial system.” Yet, even
more damaging to public’s respect for the legal system is the
continued imprisonment of individuals beyond their correct sen-
”” See Koon v. United States, 518 U.S. 81, 98 (1996) (“Before a departure
is permitted, certain aspects of the case must be found unusual enough for it
to fall outside the heartland of cases in the Guideline.”); United States v.
Jackson, 921 F.2d 985, 989 (10th Cir. 1990) (“Because Congress set uni-
formity and proportionality as goals, a sentehcing judge should depart from .
the Guidelines range only when necessary. . .”’). °
** The Seventh Circuit also increases the likelihood of disparate and arbi-
trary results because of the difficulties in determining what constitutes a “sig-
nificant prejudice:” It should not be surprising that the lower courts’ applica-
tion of the Seventh Circuit’s “significant” prejudice rule has been inconsis-
tent. Compare, e.g., Allen v. United States, 175.F.3d 560 (7th Cir. 1999) (42
additional mojiths in prison; not “significant” prejudice); United State v.«
Paz, 1997 WL 158338 (N.D. Ill. March 31, 1997) (41 additional monghs in
prison; not “significant” prejudice); with United States v. Tai, 972 F. Supp.
434 (N.D. lil. 1997) (15 to 42 additional months in prison; “significant”
prejudice found) (“An increase of more than 15 months in the length of a
prisoner's sentence seems ‘significant’ to us.” /d. at 437-38); United States
v. Hubbard, 1997 WL 639232 (N.D. Ill. Oct. 6, 1997) (40 additional months
in prison; “significant” prejudice found). 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, whjch after all were
adopted to achieve greater consistency in sentencing among’simmlar.,
situated defendants.
Martin, 109 F.3d at 1184.
>’ “Unjustifiably high or low sentences are unfair to offenders and the pub-
lic in subtle ways as well. Sentences that are disproportionate to the serious-
ness of the offense, whether they are too high or Jow, create a disrespect for
the law.” S. Rep. No. 96-553 (1980). ;
> *&
~-
—
34
tence. “[J]}ustice consists not only of convicting the guilty, but
also of assigning them a lawful and just punishment.” United
States v. Tayman, 885 F. Supp. 832, 844 (E.D. Va. 1995). The
judicial system has a legal and moral obligation to ensure that
imprisonment is fair and to correct its mistakes when they come
to its attention. Having defendants serve prison sentences
longer than the period called for by the applicable statutes and
regulations because of counsel’s error is anathema to the rule of
law. As one court noted in a different context:
[SJentencing a defendant at the wrong guideline range se-
riously affects the fairness, integrity, and public reputation
of the judicial proceedings. If we do not correct this error,
[defendant} will serve a term of imprisonment [] longer
than required by the sentencing guidelines. We cannot
casually ignore this fact... No court of justice would re-
quire a man to serve [| undeserved years in prison when it
knows that the sentence is improper.
United States v. Ford, 88 F.3d 1350, 1356 (4th Cir. 1996), cert.
denied, 519 U.S. 1999 (1996). Similarly, “fairness, integrity
and public reputation of the judicial proceedings” should com-
pel this Court to reject the “significant” prejudice test adopted
by the Seventh Circuit below and to conclude that Mr. Glover’s
6 to 21 months of additional imprisonment caused by counsel's
unprofessional errors satisfies the prejudice prong of Strickland.
a
:
35
CONCLUSION
For all of the foregoing reasons, the judgment of the court of
appeals should be reversed.
Respectfully submitted,
MICHAEL L. WALDMAN
(Counsel of Record)
KAMIN. CHAVIS
FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON
1001 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20004
(202) 639-7000
Counsel for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.