Bethel v. U.S.

• Decision Date: 17 August 2006
• Docket Number: No. 04-4108.,04-4108.
• Citation: 458 F.3d 711
• Parties: Julian C. BETHEL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

458 F.3d 711

Julian C. BETHEL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 04-4108.

United States Court of Appeals, Seventh Circuit.

Argued November 9, 2005.

Decided August 17, 2006.

Linda T. Coberly, Winston & Strawn, Chicago, IL, Alan B. Howard (argued), Winston & Strawn, New York, NY, Petitioner-Appellant.

Timothy M. O'Shea, Rita M. Rumbelow (argued), Office of the United States Attorney, Madison, WI, for Respondent-Appellee.

Before POSNER, ROVNER and WOOD, Circuit Judges.

ROVNER, Circuit Judge.

Julian C. Bethel pled guilty to one count of conspiracy to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846. He was sentenced to 192 months' imprisonment. That sentence was based in part on the classification of Bethel as a "career offender" pursuant to § 4B1.1 of the U.S. Sentencing Guidelines ("Guidelines"). We affirmed that sentence in an unpublished order, United States v. Bethel, 2003 WL 1545261, 61 Fed.Appx. 302 (7th Cir. March 24, 2003), and Bethel subsequently filed a motion to vacate his sentence under 28 U.S.C. § 2255. The crux of Bethel's claim is that his attorney provided ineffective assistance by failing to warn him before he pled guilty that he would be subject to treatment as a career offender, instead advising him that his sentence would be in the range of 100-125 months, substantially less than the 192 months to which he was ultimately sentenced. The district court rejected his claim, and we affirm.

I.

A grand jury returned an eight-count indictment against Bethel and three co-defendants. Count I charged all four defendants with conspiracy to distribute and possession with intent to distribute more than 100 kilograms of marijuana. Count V charged Bethel with distributing marijuana. The remaining counts were directed at Bethel's co-defendants. Following his March 2001 arrest, Bethel made many incriminating statements to law enforcement officers about his drug-related activities. He told the officers he had been dealing marijuana since January 1998. Although the officers were able to verify that Bethel regularly dealt in large quantities of marijuana, Bethel claimed he was never a "big dealer," and that the largest quantity of marijuana he bought at any one time was twelve pounds. Bethel provided varying estimates of his marijuana purchases, at first conceding that he regularly purchased five pounds of marijuana per week, but subsequently admitting to buying seven pounds every two weeks. He stated that in the middle of 1998, he was purchasing approximately six pounds of marijuana per month from his co-defendants, and by the end of 1998, he was averaging three to five pounds per week. In 1999, he averaged ten to twenty pounds per month, but slowed his buying habits somewhat in 2000 after he was approached by the Dane County Narcotics Gang Task Force. The probation office calculated that, by Bethel's own admissions, he purchased approximately 480 pounds (or 218 kilograms) of marijuana between April 1998 and March 2001. Law enforcement officers also interviewed six people who purchased marijuana from Bethel. Those purchases totaled approximately 930 pounds (or 422 kilograms). Having bought and sold nearly a half ton of marijuana in a three-year period, Bethel apparently had a different definition of "big dealer" than most people would have.

Bethel pled guilty to Count I; Count V was dismissed. Prior to pleading guilty, his lawyer advised him that he was facing a sentence of 100 to 125 months. The lawyer predicted that Bethel would start with a base offense level of 28 under Guideline 2D1.1(a)(3) because he sold more than 400 but less than 700 kilograms of marijuana. Counsel anticipated that Bethel would receive a three-level reduction under Guideline 3E1.1 for acceptance of responsibility because Bethel pled guilty promptly after his indictment and cooperated with the government. Based on Bethel's prior criminal record, the lawyer opined that Bethel's criminal history category would rate a level V.

The probation office prepared a presentence report ("PSR") that recommended the same Guideline range that Bethel's attorney had calculated, 100 to 125 months of imprisonment. The government, however, objected to this calculation, and recommended that Bethel be sentenced as a career offender pursuant to Guideline 4B1.1. The application of Guideline 4B1.1 increased the base offense level from 28 to 34 and raised the criminal history category from V to VI. The resultant sentencing range was 188 to 235 months. The government based this argument on two prior state court convictions, one for possession with intent to distribute cocaine and one for battery. Bethel conceded that the prior state court drug conviction qualified as a felony for the purposes of the Guidelines but disputed the characterization of the battery conviction as a felony crime of violence. According to the criminal complaint for the battery, during an argument with his girlfriend, Marie Johnson, Bethel slapped a telephone out of her hands, wrapped his hands around her neck and pinned her to a wall. He squeezed her neck, pressing against her windpipe with his thumbs so that she could neither speak nor breathe. He released his hold when Johnson's friend intervened. Bethel told Johnson, "I could have killed you but I didn't." Bethel pled guilty to a Wisconsin misdemeanor charge of battery and received a sentence of forty-five days in jail and two years of probation. The government noted that although Bethel was convicted of misdemeanor battery under Wis. Stat § 940.19, he also was charged as a repeat offender under Wis. Stat. § 939.62. Under the repeat offender provision, he was subject to a term of up to three years of imprisonment which, the government argued, qualified as a felony crime of violence under either subsection of Guideline 4B1.2.

Neither Bethel's attorney nor the probation office initially interpreted Bethel's criminal record this way and so neither realized that Bethel could be subjected to the career offender provision of the Guidelines. Bethel's attorney promptly objected to the government's recommendation that Bethel be sentenced as a career offender. Counsel noted that § 940.19 carried a maximum penalty of nine months' imprisonment and that the habitual criminal enhancement count under § 939.62 was dismissed at Bethel's sentencing hearing in state court. Counsel based this argument on a review of the Circuit Court Automation Program, a database that showed the habitual criminal enhancement as dismissed as of sentencing. Counsel indicated he had filed a written request for the case file from the Dane County Clerk of Courts Office in an attempt to verify this information. It is unclear from the record whether counsel had reviewed the database prior to advising Bethel on his probable sentence or whether the attorney did not investigate this issue until the government raised it as an objection to the PSR.

In any case, the probation office agreed with the government and filed an addendum to the PSR recommending that Bethel be sentenced as a career offender with a sentencing range of 188 to 235 months. Apparently, while Bethel was on probation for the Wisconsin assault charge (he also was still on probation for the Wisconsin conviction for possession with intent to deliver cocaine), he assaulted Johnson again, broke down the door of her home, and failed to report to his probation agent as required. For these new incidents, both Wisconsin probations were revoked and he was sentenced to an additional six months' imprisonment on the assault charge to be served consecutively to an additional three years on the cocaine charge. The federal probation office therefore opined that Bethel was subject to a maximum three year term for his original assault and thus was a two-time felon at the time of his sentencing in the instant case.

The only dispute at Bethel's sentencing hearing was whether the career offender provision applied. Guideline 4B1.1(a) sets forth the relevant factors in making this determination:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

Bethel did not dispute the first two factors. For the last factor, Bethel conceded that he had one prior conviction meeting the provision, the 1994 conviction for possessing cocaine with the intent to deliver. The center of the sentencing hearing was the 1995 conviction for battery. The description of the crime foreclosed argument about whether this was a crime of violence. With both the government and the probation office now characterizing the battery as a felony, the district court sentenced Bethel as a career offender to 192 months' imprisonment. We subsequently affirmed Bethel's sentence, citing as dispositive United States v. Bissonette, 281 F.3d 645, 646-47 (7th Cir.2002). Although Bissonette post-dated Bethel's sentencing, Bethel maintains that his attorney should have been able to predict the application of the career offender provision under then-existing Supreme Court precedent, namely United States v. LaBonte, 520 U.S. 751, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997).

After we affirmed the sentence on direct appeal, Bethel moved to vacate his sentence under 28 U.S.C. § 2255 on the ground that his attorney provided ineffective assistance by failing to advise him that he would be eligible for treatment as a career offender.¹ The district court denied Bethel's request to hold an evidentiary hearing, deeming it unnecessary under 28 U.S.C. § 2255. The court noted that under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),...