Ebbole v. U.S.

• Decision Date: 27 October 1993
• Docket Number: No. 91-2255,91-2255
• Citation: 8 F.3d 530
• Parties: Harold A. EBBOLE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 530

8 F.3d 530

Harold A. EBBOLE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 91-2255.

United States Court of Appeals Seventh Circuit.

Argued Feb. 17, 1993.

Decided Oct. 27, 1993.

Anthony J. Deutsch, Gonzalez & Saggio, Milwaukee, WI, Nancy Machinton (argued), East Hampton, MA, for petitioner-appellant.

Jeffrey Anderson, Asst. U.S. Atty. (argued), Madison, WI, for respondent-appellee.

Before RIPPLE and MANION, Circuit Judges, and SHADUR, Senior District Judge. ^*

MANION, Circuit Judge.

Harold A. Ebbole pleaded guilty to a cocaine charge and was sentenced accordingly. He filed a direct appeal and we affirmed. He later moved the district court pro se under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The district court denied his motion, as well as his pro se motion to reconsider. Ebbole appeals and we affirm in all respects.

I. Background

A. Proceedings Through Direct Appeal

In mid-1989, a grand jury indicted Ebbole and a codefendant under 21 U.S.C. § 841(a)(1) for distributing cocaine and for possessing cocaine with the intent to distribute. The indictment named Ebbole in counts two and three and named the codefendant in counts one and three. (The codefendant takes no part in this appeal.) Ebbole pleaded guilty to count two of the indictment, and the government agreed to drop count three.

At the plea hearing, Ebbole admitted, as charged in count two, to having sold 1.02 grams of cocaine to undercover law enforcement officers. The district court found Ebbole guilty of count two and ordered the preparation of a presentence investigation report ("PIR"). The Probation Office noted in the PIR that, apart from the conduct in count two to which Ebbole had pleaded guilty, Ebbole had also purchased 1,719.98 grams of cocaine within a three-month period encompassing the sale of the cocaine to which he had pleaded guilty. Based on Ebbole's course of criminal conduct, the Probation Office set his offense level at twenty-six and his criminal history category at four. The Probation Office recommended a Sentencing Guidelines range of ninety-two to one-hundred and fifteen months. The Probation Office also recommended that Ebbole not receive a two-step offense level reduction under Guidelines section 3E1.1 for acceptance of responsibility, because he had not clearly demonstrated a recognition and affirmative acceptance of his involvement in the earlier cocaine trafficking.

Ebbole objected to the PIR, and in December 1989 the district court held an evidentiary hearing on his objections. The court found that Ebbole was involved in the earlier cocaine trafficking mentioned in the PIR and that the additional trafficking was part of the same course of conduct of obtaining, possessing, and distributing the cocaine to which Ebbole had pleaded guilty. The district court concluded that Ebbole was involved with an amount of cocaine totaling 1,170.1 grams. The district court then followed the recommendation in the PIR regarding Ebbole's offense level and criminal history, and it also followed the recommendation that Ebbole not receive the two-level reduction because he had failed to accept responsibility for his related criminal conduct. The court sentenced Ebbole to ninety-two months in prison, which was at the bottom of his recommended Guidelines range. Ebbole appealed his conviction and sentence. We affirmed both in United States v. Ebbole, 917 F.2d 1495 (7th Cir.1990).

B. Post-conviction Proceedings

In April 1991, Ebbole filed a pro se motion in the district court under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence. He claimed he had received ineffective assistance of counsel at sentencing because his attorney had not informed him that the court could consider, in addition to his offense of conviction, his related uncharged criminal conduct in determining his sentence. Ebbole maintained, therefore, that he did not knowingly, voluntarily, and intelligently enter into his guilty plea. In May 1991, the district court denied that motion, without holding a hearing. The court concluded that Ebbole had failed to show either that his attorney had acted below a reasonable level of professionalism or that Ebbole had been prejudiced by any failings of his attorney.

Ebbole then moved the court pro se to reconsider its ruling on his section 2255 motion. He claimed that the court's ruling was erroneous, and he also raised a new argument. He argued that his attorney was ineffective because the attorney did not inform him that he might be ineligible for a two-step offense level reduction for acceptance of responsibility. Ebbole further asserted that his attorney was ineffective in not objecting when the district court denied Ebbole the two-level reduction because he had failed to accept responsibility for his entire course of criminal conduct, charged and uncharged.

In denying the motion to reconsider, the district court noted a split among the circuit courts on whether a defendant needed to accept responsibility for just his offense of conviction or whether he also needed to accept responsibility for both his offense and his related criminal conduct. Because this circuit had yet to rule on the matter, the district court decided to follow the majority rule, which states that a defendant needs to accept responsibility for both his offense and his related criminal conduct to be eligible for a two-level reduction. As such, the district court determined that Ebbole was not due a reduction because he had failed to admit to his related criminal conduct and that his attorney was not ineffective in failing to object to the court's consideration of Ebbole's entire course of criminal conduct. Ebbole timely appealed from the district court's rulings.

II. Analysis

Ebbole raises three points on appeal: (1) whether he was denied effective assistance of counsel at sentencing; (2) whether the district court erred in denying him a hearing on his section 2255 motion; and (3) whether the district court erred in denying him a two-step reduction in his offense level for acceptance of responsibility.

A. Effective Assistance of Counsel

In his first point on appeal, Ebbole argues that his attorney denied him effective assistance of counsel at sentencing. In particular, Ebbole claims his attorney failed to inform him that the district court could consider, in addition to his offense of conviction, all his related criminal conduct in determining his term of imprisonment. Based on his contention that his attorney failed to inform him properly, Ebbole maintains that he did not enter his guilty plea in a knowing, voluntary, or intelligent fashion.

In reviewing an ineffective assistance of counsel claim, we indulge a strong presumption that an attorney's conduct was reasonably professional. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). A defendant must demonstrate (1) that his representation at sentencing fell below an objective standard of reasonableness and (2) that a reasonable probability exists that, but for his attorney's unprofessional representation, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65; see also Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985) (stating that when a claim of ineffective assistance of counsel arises from a guilty plea, the defendant must show that he would not have pleaded guilty but for his attorney's error). A court does not have to analyze both prongs of the Strickland test. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. A defendant's failure to satisfy either prong is fatal to his claim. United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir.1990). As such, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed." Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

Ebbole has failed to show prejudice. His plea agreement, which he signed, provided in relevant part:

Mr. Ebbole agrees to plead guilty to Count II of the indictment.... Count II carries a maximum period of incarceration of 20 years plus a maximum fine of $1 million or both....

The United States will make its full file available to the probation office for their use in preparing a presentence investigation. The government does hereby state, and [Ebbole] does agree, that the sentence which the defendant will receive is within the sole discretion of the court. [Ebbole ] has further acknowledged that the court is free to consider his entire pattern of conduct and not just information relating to the count to which he is pleading. [Ebbole ] does further acknowledge that his entire pattern of conduct will be brought to the court's attention and most importantly will be utilized by the court in determining the appropriate sentence under the sentencing guidelines.

(Emphasis added.)

At Ebbole's plea hearing, the court asked him whether he understood the terms of his plea agreement. Ebbole said he did. Ebbole also acknowledged to the court that no one had promised him a specific sentence in return for his guilty plea.

Based on the terms of the plea agreement and the colloquy at the plea hearing, we conclude that Ebbole had a clear understanding that the district court could consider all his related criminal conduct at sentencing, in addition to his offense of conviction. Ebbole was also aware that he could receive up to twenty years in prison, and no one led him to believe that his sentence would be shorter. Thus, regardless of whether his attorney failed to inform him that the district court could consider his entire course of criminal conduct, Ebbole was otherwise notified of that fact. Moreover, Ebbole has not shown that he was prejudiced by the sentence he received after entering into his fully informed guilty plea. His sentence of ninety-two months was well under the...