# Petitioners Brief — Glover v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0402%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 2001 - **Citation:** 531 U.S. 198 ## 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0402%3A07. Public record. Not legal advice.