Precin v. U.S., 93-3401

• Decision Date: 06 May 1994
• Docket Number: No. 93-3401,93-3401
• Citation: 23 F.3d 1215
• Parties: Scott PRECIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1215

23 F.3d 1215

Scott PRECIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 93-3401.

United States Court of Appeals Seventh Circuit.

Argued Jan. 14, 1994.

Decided May 6, 1994.

Edward M. Genson (argued), Jeffrey B. Steinback, Leonard Goodman, Genson, Steinback, Gillespie & Martin, Chicago, IL, for petitioner-appellant.

Steven Shobat (argued), Barry R. Elden, Asst. U.S. Attys., Crim. Receiving, Appellate Div., Chicago, IL, for respondent-appellee.

Before BAUER, COFFEY, and RIPPLE, Circuit Judges.

BAUER, Circuit Judge.

Scott Precin pleaded guilty to conspiring to possess cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 846. Instead of appealing his conviction and sentence directly, he petitioned the district court for postconviction relief under 28 U.S.C. Sec. 2255. The district court denied his petition, and we affirm the denial.

I.

Precin's conviction stems from the government's investigation of Chicago drug trafficker, David Avery. The investigation led to a 168-count indictment involving twenty-nine defendants. The indictment alleged that Precin dealt narcotics on Avery's behalf. Avery decided to cooperate with the government and provided evidence against Precin. In his statement, Avery claimed that he had sold Precin cocaine on more than fifty occasions and that the transactions involved, on average, one ounce (twenty-eight grams) of cocaine. Avery stated that in at least half of these transactions, he gave the cocaine to Precin on consignment with the understanding that Precin would resell the narcotics and repay Avery from the proceeds. As further evidence of Precin's role in the conspiracy, the government possessed several wiretap recorded conversations between Precin and Avery detailing their transactions.

Subsequent to Avery's proffer, Precin also offered to cooperate with the government. With the understanding that the statements in his own proffer could not be used against him, Precin admitted to purchasing cocaine from Avery on at least forty occasions with money provided to him by four of his friends. He would then distribute the cocaine to these friends. Precin acknowledged that he purchased cocaine in amounts ranging from half an ounce (fourteen grams) to several ounces. The government drafted an agreement in which Precin agreed to plead guilty to the conspiracy charge and in exchange, the government agreed to drop the remaining charges and to recommend a reduction in sentencing that would result in a forty-two month prison term.

At his plea hearing, Precin admitted to the allegations as presented by the government and entered a plea of guilty. After satisfying itself that the factual basis of the charge was adequate and that Precin was entering his plea knowingly and voluntarily, the district court accepted Precin's plea and informed him of his right to appeal. At sentencing, the court found Precin responsible for between 500 grams and 2 kilograms of cocaine, accepted the government's recommended reduction for substantial assistance, and sentenced Precin to forty-two months imprisonment.

Precin did not object to aspects of his conviction or sentence before the district court. Nor did he appeal the district court's decision to this court. Instead, Precin filed a petition for postconviction relief asking the district court to vacate his conviction and his sentence. 28 U.S.C. Sec. 2255. The district court held that Precin failed to demonstrate sufficient justification for his failure to file a direct appeal and denied his petition.

II.

Ordinarily, under 28 U.S.C. Sec. 2255, a conviction can be reversed for "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Borre v. United States, 940 F.2d 215, 217 (7th Cir.1991) (citations omitted). When, however, issues raised in a section 2255 proceeding have not been raised in a direct appeal, the party seeking relief must establish cause and prejudice for the failure. Id. Precin contends that his attorney's representation was constitutionally deficient and that his advice caused Precin to plead guilty to a charge which (1) had no basis in fact, (2) was not sufficiently explained to him, and (3) was based on inadmissible statements from his proffer. Precin also claims that his attorney's errors led the court to sentence him to a longer prison term than he should have received.

Precin correctly argues that ineffective assistance of counsel may excuse a procedural default. Van Russell v. United States, 976 F.2d 323, 327 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2376, 124 L.Ed.2d 280 (1993). To succeed on a ineffective assistance claim, Precin must demonstrate: (1) deficient performance by the attorney, and (2) prejudice from the representation. Lockhart v. Fretwell, --- U.S. ----, ----, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). The first prong is satisfied by showing that the attorney's performance fell well outside the range of professionally competent representation. United States v. Moya-Gomez, 860 F.2d 706, 763-64 (7th Cir.1988), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989). In making this evaluation, a strong presumption exists in the attorney's favor. Van Russell, 976 F.2d at 327. To satisfy the prejudice component, a defendant must show that the errors deprived him of a fair trial. Lockhart, --- U.S. at ----, 113 S.Ct. at 842. Both components of the inquiry are mixed questions of law and fact subject to independent review by this court. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).

A. Adequacy of Precin's Plea

In contesting his conviction, Precin alleges that he and Avery had only a buyer-seller relationship and that the government's evidence failed to prove that Precin was involved in the larger conspiracy. He claims that he pleaded guilty only because his attorney advised him that "because [he] had taken money from [his] friends and obtained cocaine for them, [he] was just as guilty as if [he] had been dealing cocaine for profit." This advice, erroneous as a matter of law according to Precin, led him to believe mistakenly that the government had presented an adequate factual basis for his plea. Precin also argues that, as a result of this purportedly improper advice, his plea was not knowing and voluntary.

Although a mere buyer-seller relationship is inadequate to establish a person's affiliation with a conspiracy, United States v. Townsend, 924 F.2d 1385 (7th Cir.1991), Precin's relationship with Avery was more than just buyer-seller. In his proffer, Avery stated that since 1986, he had supplied cocaine to Precin on more than fifty occasions. On at least half of those occasions, Avery gave the cocaine to Precin on a consignment basis, with the understanding that Precin would not have to pay for the drugs until he resold them. While a single credit transaction may not be sufficient to demonstrate that the buyer was aware of the conspiracy, a pattern of repeated narcotics transactions in which credit arrangements are made may support such a conclusion. United States v. Lamon, 930 F.2d 1183, 1191-92 (7th Cir.1991); United States v. Baker, 905 F.2d 1100, 1106 (7th Cir.), cert. denied, 498 U.S. 876, 111 S.Ct. 206, 112 L.Ed.2d 167 (1990). This is precisely what the government demonstrated in the plea hearing and recognizing the strength of the government's case, Precin's attorney reasonably advised Precin to accept the plea agreement. Precin cannot show that his attorney's advice, accurate in its assessment of the law and the facts, was constitutionally deficient.

Nor can Precin show that his attorney's advice rendered his plea...