U.S. v. Cieslowski

• Decision Date: 01 June 2005
• Docket Number: No. 03-2890.,03-2890.
• Citation: 410 F.3d 353
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul CIESLOWSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

410 F.3d 353

UNITED STATES of America, Plaintiff-Appellee, v. Paul CIESLOWSKI, Defendant-Appellant.

No. 03-2890.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2004.

Decided June 1, 2005.

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Monika Bickert (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Ellen R. Domph (argued), Chicago, IL, for Defendant-Appellant.

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

It is common for criminal prosecutions to be resolved by the defendant's plea of guilty, but not all guilty pleas are alike. Usually in federal court, defendants enter the type of plea that leaves the court free to set whatever sentence it believes is proper, under the law. It is also possible, however, for the plea agreement to specify a particular sentence that both the defendant and the government agree is appropriate. See FED. R. CRIM. P. 11(c)(1)(C). That is the kind of plea agreement we have before us in Paul Cieslowski's appeal. He pleaded guilty to engaging in sexually explicit conduct with a minor for the purpose of producing a visual depiction of the conduct and agreed in his plea agreement to a sentence of 210 months' imprisonment. The district court accepted this plea and sentenced Cieslowski to the agreed term.

Cieslowski later had second thoughts and decided to appeal. He now claims that his plea agreement was the result of ineffective assistance of counsel, because the agreed-upon term of imprisonment resulted from his lawyer's mistaken calculation under the federal Sentencing Guidelines. After the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), he added a claim that his sentence rested on a violation of the Sixth Amendment. We conclude that counsel's performance did not fall below the threshold of constitutionally sufficient assistance, nor can Cieslowski show prejudice under these circumstances, and thus he is not entitled on this theory to have his plea agreement set aside. We also find no merit in his other challenges to the plea agreement and the sentence. Finally, we conclude that there are significant differences for purposes of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), between a sentence that results from a Rule 11(c)(1)(C) plea agreement and other sentences that the court computes independently under the Sentencing Guidelines. When the sentence the court imposes is legal under the governing statute and results from the defendant's explicit agreement, it is not affected by the judge's perception of the mandatory or advisory nature of the Guidelines, and thus there is no need for a remand for further proceedings. We therefore affirm.

I

In October 2000, detectives of the Cook County Sheriff's Police Child Exploitation Unit began investigating a person who, through the use of a screen name, participated in various Internet chat rooms devoted to child pornography. The same individual also chatted with, and sent nude pictures of himself to, an undercover police officer posing online as a fourteen-year-old girl. A few months later the detectives identified the screen name as belonging to Paul Cieslowski. When detectives spoke with Cieslowski, he admitted using the screen name in the chat rooms and gave written consent for a search of his home laptop computer. Forensic examiners found in excess of 8,000 image files on the laptop, most of which depicted minors engaged in sexually explicit conduct.

Cieslowski was arrested by state and federal agents and indicted by a federal grand jury on ten counts: two counts of engaging in sexually explicit conduct with a minor for the purpose of producing visual depictions of the conduct, in violation of 18 U.S.C. § 2251(a); one count of possessing material containing images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); and seven counts of knowingly receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). He was indicted separately in the Circuit Court of DuPage County, Illinois, on charges of predatory criminal sexual assault and possession of child pornography stemming from the same facts and circumstances alleged in the federal indictment.

On December 6, 2001, Cieslowski pleaded guilty in the federal case to one count of engaging in sexually explicit conduct with a minor for the purpose of producing visual depictions, in exchange for the government's dismissal of the other nine counts in the indictment. In the plea agreement, which was governed in part by what was then FED. R. CRIM. P. 11(e)(1)(C), Cieslowski stipulated to the conduct alleged in the dismissed counts and agreed that this conduct would play a role in determining his sentence. (In 2002, Rule 11(e)(1)(C) was renumbered as Rule 11(c)(1)(C). Because nothing of substance was changed, we use the current numbering in this opinion.)

Using the 2000 Sentencing Guidelines manual, the parties calculated Cieslowski's offense level to be 35, resulting in a guideline sentencing range of 168-210 months. The agreement stated that it was to be governed by what is now Rule 11(c)(1)(C). It therefore stated that "the parties have agreed that the sentence imposed by the Court shall include a term of imprisonment of 210 months in the custody of the Bureau of Prisons. Other than the agreed term of incarceration, the parties have agreed that the Court remains free to impose the sentence it deems appropriate." Consistent with Rule 11(c)(1)(C), the agreement also provided that "[i]f the Court accepts and imposes the agreed term of incarceration set forth, the defendant may not withdraw this plea as a matter of right under [Rule 11]. If, however, the Court refuses to impose the agreed term of incarceration set forth herein, thereby rejecting the Plea Agreement, or otherwise refuses to accept the defendant's plea of guilty, this Agreement shall become null and void and neither party will be bound thereto."

Shortly thereafter, Heather Winslow, who had been serving as Cieslowski's counsel, withdrew from the case and current counsel was appointed. On June 18, 2002, Cieslowski filed a motion to withdraw his guilty plea, arguing that it was involuntary because it had been induced by ineffective assistance of counsel. He contended that Winslow's failure to file two suppression motions prior to pursuing the plea agreement was an error that left him no choice but to enter his plea. After holding an evidentiary hearing, the district court denied the motion.

Prior to sentencing, both parties acknowledged that they had failed to catch an amendment to the Sentencing Guidelines that affected the Guidelines range for Cieslowski's offenses. Under Amendment 615 to the Guidelines, which took effect on November 1, 2001 (a month prior to Cieslowski's guilty plea), the offense and conduct to which Cieslowski stipulated would have resulted in an offense level 33, for which the highest sentence would have been 168 months — 42 months less than the agreed upon sentence. Cieslowski again moved to withdraw his plea.

On July 9, 2003, the court denied his motion and sentenced him to 210 months. It also imposed a three-year term of supervised release and ordered him to participate in mental health aftercare, register as a sex offender, and avoid unsupervised contact with minor children. Cieslowski appealed, claiming that his agreement to plead guilty was involuntary, and thus that he should be relieved from all aspects of that plea (including, it should be noted, his waiver of the right to appeal or to attack the judgment collaterally).

II

FED. R. CRIM. P. 11(b) requires the court to ensure, before accepting a guilty plea, that the defendant entered into it voluntarily. With this goal in mind, it requires the court to address the defendant personally to determine that the plea did not result from force, threats or promises other than those memorialized in the plea agreement. Id. Once the court accepts a guilty plea, a defendant does not have an absolute right to withdraw it. To the contrary, the defendant must present a "fair and just reason" for doing so. FED. R. CRIM. P. 11(d)(2)(B). We have commented that when "a defendant wishes to withdraw his plea after he states at a Rule 11 hearing that it was given freely and knowingly, he faces an uphill battle in persuading the judge that his purported reason is fair and just." United States v. Pike, 211 F.3d 385, 390 (7th Cir.2000); see also United States v. Martinez, 169 F.3d 1049, 1054 (7th Cir.1999) ("Because of the great weight we place on these in-court statements, we credit them over his later claims [that he would not have pleaded guilty.]"). Cieslowski informed the court at his Rule 11 colloquy that he understood the terms of his plea and was satisfied with his lawyer. With this in mind, we turn to the reasons he now advances in support of his claim that his plea was nonetheless involuntary.

Cieslowski argues that in agreeing to plead guilty, he relied on the advice of his former counsel. He contends that she committed a series of errors, the net result of which was to destroy the voluntariness of his plea. These alleged errors included reliance on the wrong version of the Sentencing Guidelines to calculate the sentence to which he ultimately agreed, the failure to file two suppression motions, and the failure to advise the district court of an oral agreement concerning a concurrent sentence in the state court proceeding.

We review an ineffective assistance of counsel claim under the principles set forth in Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This well-known test requires proof of both inadequate performance and prejudice to the defendant. Id. at 687, 104 S.Ct. 2052. As applied in the plea bargaining context, a defendant must show that counsel did not attempt to learn the facts of the case and failed to make a...