Paters v. U.S.

• Decision Date: 28 October 1998
• Docket Number: No. 97-2655,97-2655
• Citation: 159 F.3d 1043
• Parties: Robert J. PATERS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1043

159 F.3d 1043

Robert J. PATERS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 97-2655.

United States Court of Appeals, Seventh Circuit.

Argued March 3, 1998.

Decided Oct. 28, 1998.

Cheryl J. Sturn (argued), Westtown, PA, for Petitioner-Appellant.

Christian E. Larsen (argued), Thomas P. Schneider, Office of the United States Attorney Before ESCHBACH, COFFEY, and ROVNER, Circuit Judges.

Milwaukee, WI, for Respondent-Appellee.

ESCHBACH, Circuit Judge.

Robert Paters was convicted by a jury of conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a) and 846, and was sentenced to 121 months' imprisonment. We affirmed Paters' conviction and sentence. United States v. Paters, 16 F.3d 188 (7th Cir.1994). He now seeks vacation of his conviction, under 28 U.S.C. § 2255, on the ground that he received ineffective assistance from his attorney during the plea negotiation process. The district court found as a matter of law that Paters could not establish prejudice and denied Paters' motion. Since the district court applied an erroneous standard for determining prejudice, we vacate the judgment of the district court and remand the case for further proceedings.

I. HISTORY

In December 1991, Paters was charged with conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a) and 846. He hired defense counsel to represent him. A jury found Paters guilty as charged, and the district court sentenced him to 121 months' imprisonment.

On May 13, 1996, ¹ Paters filed this § 2255 motion, asserting that his sentence should be vacated because defense counsel rendered ineffective assistance during the plea negotiation process. Paters asserted that defense counsel told him that he could be held responsible only for the two kilograms of cocaine with which he was caught. Defense counsel also allegedly told Paters that the result would be the same whether he pleaded guilty or went to trial, and therefore Paters had "nothing to lose" by going to trial. Finally, Paters claimed that three days before the trial was scheduled to begin, defense counsel informed him that the government had offered a five-year deal ² in exchange for his guilty plea. Again, defense counsel allegedly advised Paters that he could only be held responsible for the drugs he actually possessed (two kilograms of cocaine) and that he had nothing to lose by going to trial. Paters also alleged that defense counsel "did not explain the Sentencing Guidelines, especially the impact of relevant conduct, foreseeability, acceptance of responsibility, etc. on the sentence."

Paters claimed that defense counsel's erroneous advice concerning the proposed plea agreement was objectively unreasonable and that any reasonably competent attorney would have discussed the impact of relevant conduct and acceptance of responsibility on his sentence. He also claimed any reasonably competent attorney would have advised him to accept the proposed plea agreement. Additionally, Paters claimed that there was no viable theory of defense and, therefore, no reasonable basis for a recommendation to take the case to trial. With regard to the prejudice prong, Paters asserted that had defense counsel competently performed his duties regarding the proposed plea agreement, Paters would have accepted the plea agreement and received a sentence half as long as that which resulted from going to trial. In a signed "declaration" accompanying his motion, he claims he would have Surprisingly, the government conceded all of the relevant facts for purposes of Paters' § 2255 motion. It conceded that defense counsel "advised Mr. Paters that he could be held responsible for the two kilograms with which he was involved and no more whether he stood trial or pled guilty." Government's Response at 2. The government also conceded that "[defense counsel] told Mr. Paters that he had nothing to lose by going to trial." Id. Although the government did not expressly concede the first prong of the Strickland test (objectively deficient representation), it remained silent on that issue.

accepted the plea agreement but for his attorney's advice.

The government relied on the prejudice prong instead. It asserted that, "[e]ven accepting the proposition that Mr. Paters' attorney acted incompetently in advising his client to proceed to trial," Paters could not establish prejudice. Accordingly, the government maintained that Paters did not sufficiently allege a Sixth Amendment violation and that his § 2255 motion should be denied.

We note that there was no § 2255 hearing. Instead, the district court assumed the truth of Paters' factual allegations. Although the district court made no express conclusion about the first prong of the Strickland test, the court treated the government's silence on the issue as a waiver. The court stated, "The government's response assumes that [defense counsel's] alleged error was objectively unreasonable." Order of April 29, 1997 at 4.

With regard to the prejudice prong, the district court said that Paters failed to allege a sufficiently prejudicial result of the assumed deficient performance. The court reasoned that, had Paters been sentenced under the alleged proposed plea agreement, his offense level would have been 28 (the level prescribed for defendants accountable for two to three and a half kilograms of cocaine) and the sentencing range would have been 78-97 months. ³ Although the court cited no cases specifically on point, it concluded that the difference between the actual sentencing range of 121-151 months and the potential range of 78-97 months was not "significant" under Durrive v. United States, 4 F.3d 548 (7th Cir.1993), and thus it was insufficient to establish prejudice. The court denied Paters' § 2255 motion without holding an evidentiary hearing, but issued a certificate of appealability on the issue of ineffective assistance.

On appeal Paters argues that the district court should have compared Paters' actual sentence of 121 months with the 60-month deal allegedly promised in the proposed plea agreement. In the alternative, he argues that, even if the theory behind the district court's calculations was correct, Paters would have been entitled to at least a two-level reduction for acceptance of responsibility. Thus, the appropriate comparison should have been the difference between a sentencing range of 121-151 months and 63-78 months (the range for offense level 26). Finally, Paters asserts that, even if the district court compared the correct figures, the difference between a sentencing range of 121-151 months and 78-97 months is significant and sufficient to establish prejudice.

II. ANALYSIS

This court reviews de novo a district court's judgment denying relief under 28 U.S.C. § 2255. In order to prevail in this court on his Sixth Amendment claim, Paters must show that his attorney rendered substandard assistance and that Paters was prejudiced as a result. E.g., Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Griffin v. United States, 109 F.3d 1217, 1219 (7th Cir.1997). In the proceedings below, the government and the district court assumed that defense counsel's alleged error was objectively unreasonable. Since neither party has addressed the performance The district court relied on Durrive, 4 F.3d at 548 for the prejudice analysis. It concluded that the correct test was whether the attorney's error rendered a "significantly" harsher sentence than if no error had occurred. In Durrive, we said that in order to establish prejudice resulting from mistakes made by counsel at sentencing, the defendant must show that the sentencing proceeding was unreliable or fundamentally unfair. Durrive, 4 F.3d at 550-51 (relying on Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)). We held that a defendant could meet this standard only by establishing that the attorney's error produced a significant effect on his sentence. Id. at 551. We conclude that the district court erred in applying the Durrive test in this case.

prong on appeal, only the prejudice prong remains.

This court has decided very few cases involving allegations of attorney incompetence resulting in the defendant's rejection of a plea agreement proposal. See, e.g., United States v. Golden, 102 F.3d 936 (7th Cir.1996); Toro v. Fairman, 940 F.2d 1065 (7th Cir.1991); Johnson v. Duckworth, 793 F.2d 898 (7th Cir.1986). Of those cases Golden and Johnson were decided based on the performance prong of the Strickland test. Golden, 102 F.3d at 943; Johnson, 793 F.2d at 902. Johnson addresses the prejudice prong, but only in dicta. Johnson, 793 F.2d at 902 n. 3. Therefore, only Toro addresses the issue on point.

The Toro test has two parts. The court should consider whether Paters established (1) through objective evidence that (2) there is a reasonable probability that he would have accepted the alleged proposed plea agreement absent defense counsel's advice. Toro, 940 F.2d at 1068; see Johnson, 793 F.2d at 902 n. 3 (in dicta, doubting defendant's ability to establish prejudice because he "does not argue or allege ... that there is a reasonable probability that, but for counsel's errors, he would have accepted the plea agreement").

In Toro, unlike Durrive, we focused exclusively on the objective evidence standard and disregarded the degree of disparity between the six-year proposed plea agreement and twenty-year actual sentence. Toro, 940 F.2d at 1066. Since Toro produced no objective evidence, we held that his "statement [that he 'would have had to be insane not to accept the plea agreement'] is self-serving and alone, insufficient to establish ... a reasonable probability that he would have accepted the plea." Id. at 1068. Similarly, in Johnson, we ignored the difference between the plea agreement's fifteen-year sentence and the defendant's actual sentence of thirty...