GLOVER v. UNITED STATES

• Citation: 531 U.S. 198
• Decision Date: 09 January 2001
• Court: United States Supreme Court

OCTOBER TERM, 2000

Syllabus

GLOVER v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

No. 99-8576. Argued November 27, 2000-Decided January 9, 2001

The probation office recommended that petitioner Glover's federal labor racketeering, money laundering, and tax evasion convictions be grouped under United States Sentencing Guidelines § 3D1.2, which allows the grouping of counts involving substantially the same harm. The Government objected to grouping the money laundering counts with the others, and the trial court agreed. Glover's offense level was thus increased by two levels, resulting in an increased sentence of between 6 and 21 months. His counsel did not press the grouping issue in the trial court or raise it on appeal to the Seventh Circuit, which affirmed his conviction and sentence. Glover then filed a pro se motion to correct his sentence, arguing that his counsel's failure to pursue the issue was ineffective assistance, without which his offense level would have been lower. The District Court denied the motion, determining that under Circuit precedent a 6- to 21-month sentencing increase was not significant enough to amount to prejudice for purposes of Strickland v. Washington, 466 U. S. 668. As a result, the court did not decide whether Glover's counsel fell below a reasonable standard of competence, and denied his ineffective-assistance claim. The Seventh Circuit affirmed, relying on the Government's theory that even were the performance of Glover's counsel ineffective, the resulting increase in sentence, under Circuit precedent, would not constitute prejudice.

Held: The Seventh Circuit erred in engrafting onto the prejudice branch of the Strickland test the requirement that any increase in sentence must meet a standard of significance. Pp. 202-205.

(a) The Government no longer asserts that a 6- to 21-month prison term increase is not prejudice under Strickland. The Seventh Circuit drew the substance of its rule from Lockhart v. Fretwell, 506 U. S. 364, 369, which holds that in some circumstances a mere difference in outcome will not suffice to establish prejudice. This Court explained last Term that the Lockhart holding does not supplant the Strickland analysis. See Williams v. Taylor, 529 U. S. 362, 393. The Seventh Circuit was incorrect to rely on Lockhart to deny relief to persons who might show deficient performance in their counsel's failure to object to an error of law affecting the sentencing calculation because the sentence increase does not meet some baseline prejudice standard. This Court's jurispru-

199

dence suggests that any amount of actual jail time has Sixth Amendment significance. E. g., Argersinger v. Hamlin, 407 U. S. 25. Moreover, decisions on the right to jury trial in a criminal case, see id., at 29, do not control the question whether a showing of prejudice, in the context of an ineffective-assistance claim, requires a significant prison term increase. The Seventh Circuit's rule is not well considered in any event, because there is no obvious dividing line by which to measure how much longer a sentence must be for the increase to constitute substantial prejudice. Although the amount by which a defendant's sentence is increased by a particular decision may be a factor in determining whether counsel's performance in failing to argue the point constitutes ineffective assistance, under a determinate system of constrained discretion such as the Sentencing Guidelines it cannot serve as a bar to a showing of prejudice. Here the Court considers the sentencing calculation itself, which resulted from a ruling that had it been error, would have been correctable on appeal. The question of deficient performance is not before the Court, but it is clear that prejudice flowed from the asserted error in sentencing. Pp. 202-204.

(b) The Government's various arguments for affirming the Seventh Circuit's judgment were neither raised nor resolved below, and are outside the questions presented by the petition for certiorari. Whether these issues remain open, and if so whether they have merit, are questions for the lower courts to determine in the first instance. P. 205.

182 F. 3d 921, reversed and remanded.

KENNEDY, J., delivered the opinion for a unanimous Court.

Michael L. Waldman argued the cause and filed briefs for petitioner.

Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Matthew D. Roberts, and Joel M. Gershowitz. *

JUSTICE KENNEDY delivered the opinion of the Court. The issue presented rests upon the initial assumption, which we accept for analytic purposes, that the trial court

*David M. Zlotnick, Peter Goldberger, and Kyle O'Dowd filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.

200

erred in a Sentencing Guidelines determination after petitioner's conviction of a federal offense. The legal error, petitioner alleges, increased his prison sentence by at least 6 months and perhaps by 21 months. We must decide whether this would be "prejudice" under Strickland v. Washington, 466 U. S. 668 (1984). The Government is not ready to concede error in the sentencing determination but now acknowledges that if an increased prison term did flow from an error the petitioner has established Strickland prejudice. In agreement with the Government and petitioner on this point, we reverse and remand for further proceedings.

I

In the 1980's and early 1990's, petitioner Paul Glover was the Vice President and General Counsel of the Chicago Truck Drivers, Helpers, and Warehouse Workers Union (Independent). The evidence showed Glover used his control over the union's investments to enrich himself and his co-conspirators through kickbacks. When the malfeasance was discovered, he was tried in the United States District Court for the Northern District of Illinois. His first trial ended when the jury could not agree, but a second jury convicted him. The presentence investigation report prepared by the probation office recommended that the convictions for labor racketeering, money laundering, and tax evasion be grouped together under United States Sentencing Commission, Guidelines Manual § 3D1.2 (Nov. 1994), which allows the grouping of "counts involving substantially the same harm." The Government, insisting that the money laundering counts could not be grouped with the other counts, objected to that recommendation, and the District Court held a hearing on the matter. The money laundering counts, it ruled, should not be grouped with Glover's other offenses. The ruling, as the trial court viewed it, was in conformance with decisions in those Courts of Appeals which had refused to group money laundering counts with other counts for various reasons.

201

See, e. g., United States v. Lombardi, 5 F. 3d 568 (CAl1993); United States v. Porter, 909 F. 2d 789 (CA4 1990); United States v. Taylor, 984 F. 2d 298 (CA9 1993); United States v. Johnson, 971 F. 2d 562 (CAlO 1992); United States v. Harper, 972 F. 2d 321 (CA111992). In the trial court, Glover's attorneys did not submit papers or offer extensive oral arguments contesting the no-grouping argument advanced by the Government. When the District Court decided not to group the money laundering counts with the other counts, Glover's offense level was increased by two levels, yielding a concomitant increase in the sentencing range. Glover was sentenced to 84 months in prison, which was in the middle of the Guidelines range of 78 to 97 months.

On appeal to the Seventh Circuit, Glover's counsel (the same attorneys who represented him in District Court) did not raise the grouping issue; instead, they concentrated on claims that certain testimony from his first trial should not have been admitted at his second trial and that he should not have been assessed a two-level increase for perjury at his first trial. A short time after argument on Glover's appeal, a different panel of the Seventh Circuit held that, under some circumstances, grouping of money laundering offenses with other counts was proper under § 3D1.2. United States v. Wilson, 98 F. 3d 281 (1996). A month and a half later, the Seventh Circuit rejected both of Glover's arguments and affirmed his conviction and sentence. 101 F. 3d 1183 (1996).

Glover filed a pro se motion to correct his sentence under 28 U. S. C. § 2255 (1994 ed., Supp. III). The failure of his counsel to press the grouping issue, he argued, was ineffective assistance, a position confirmed, in his view, by the Court of Appeals' decision in Wilson. The performance of counsel, he contended, fell below a reasonable standard both at sentencing, when his attorneys did not with any clarity or force contest the Government's argument, and on appeal, when they did not present the issue in their briefs or call the Wilson decision to the panel's attention following the oral

202

argument. He further argued that absent the ineffective assistance, his offense level would have been two levels lower, yielding a Guidelines sentencing range of 63 to 78 months. Under this theory, the 84-month sentence he received was an unlawful increase of anywhere between 6 and 21 months.

The District Court denied Glover's motion, determining that under Seventh Circuit precedent an increase of 6 to 21 months in a defendant's sentence was not significant enough to amount to prejudice for purposes of Strickland v. Washington, supra. As a result, the District Court did not decide the issue whether the performance of Glover's counsel fell below a reasonable standard of competence. On appeal to the Seventh Circuit, the Government argued only that Glover had not suffered prejudice within the meaning of Strickland. See App. to Reply Brief for Petitioner la-22a. Citing Durrive v. United States, 4 F. 3d 548 (CA7 1993), the Government contended that even were the performance of Glover's counsel...