Robinson v. USA, 98-2055

• Citation: 196 F.3d 748
• Decision Date: 03 November 1999
• Docket Number: No. 98-2055,98-2055
• Parties: (7th Cir. 1999) Ervin J. Robinson, Petitioner-Appellant, v. United States of America, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 748

196 F.3d 748 (7th Cir. 1999)

Ervin J. Robinson, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

No. 98-2055

United States Court of Appeals, Seventh Circuit

Argued October 6, 1999

Decided November 3, 1999

Appeal from the United States District Court for the Southern District of Illinois. No. 97-CV-361--William L. Beatty, Judge. [Copyrighted Material Omitted] Before Eschbach, Flaum, and Kanne, Circuit Judges.

Kanne, Circuit Judge.

In this successive appeal, Ervin Robinson argues that the district court erred in denying his 28 U.S.C. sec. 2255 motion to vacate, set aside, or correct his sentence. Robinson, who pleaded guilty, alleged numerous instances of deficient performance by counsel, but failed to prove he was prejudiced. Robinson also contends that in light of Rutledge v. United States, 517 U.S. 292 (1996), his convictions and sentences for both conspiracy and for engaging in a continuing criminal enterprise violate the double jeopardy clause of the Fifth Amendment. We agree. Accordingly, we affirm in part, and vacate and remand in part.

I. HISTORY

In September 1992, Ervin Robinson pleaded guilty to conspiracy to distribute marijuana and cocaine in violation of 21 U.S.C. sec. 846 (count 1); distribution and possession with intent to distribute marijuana and cocaine in violation of 21 U.S.C. sec. 841(a)(1) (count 2); participating in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. sec. 848 (count 3); money laundering in violation of 18 U.S.C. sec. 1956(a)(1)(A)(i) (counts 4- 30); filing false tax returns in violation of 26 U.S.C. sec. 7206(1) (counts 31-32); and providing false statements to a government agency in violation of 18 U.S.C. sec. 1001 (counts 33-35). The district court assigned Robinson a total offense level of 38 and placed him in criminal history category III, yielding a guideline imprisonment range of 292 to 365 months. The district court sentenced Robinson to 292 months on count 1; 240 months on count 2; 292 months on count 3; 240 months on counts 4 and 5; 240 months on counts 6 through 30; 36 months on counts 31 and 32; and 60 months on counts 33 through 35, with the sentences on all counts to run concurrently. The district court also sentenced Robinson to a total of ten years of supervised release, and imposed special assessments totaling $1,750. Robinson appealed, and we affirmed. United States v. Robinson, 14 F.3d 1200 (7th Cir. 1994).

In April 1997, Robinson timely filed a motion to vacate, set aside, or correct his sentence, raising numerous grounds including ineffective assistance of counsel. The district court held an evidentiary hearing on Robinson's sec. 2255 motion. The district court denied Robinson's sec. 2255 motion in February 1998, but granted him a certificate of appealability.

II. ANALYSIS

A. Standard of Review

We review de novo the district court's denial of a sec. 2255 motion. Gray-Bey v. United States, 156 F.3d 733, 737 (7th Cir. 1998), cert. denied, 119 S.Ct. 849 (1999). However, we examine the district court's finding of facts for clear error. Id.

B. Conviction and Sentence for Both Conspiracy and Continuing Criminal Enterprise

At the time Robinson was convicted and sentenced, our cases interpreting the relevant statutes permitted district courts to enter convictions and impose concurrent sentences for conspiracy and CCE as long as the total penalty did not exceed the maximum allowed under the CCE statute. Jeffers v. United States, 432 U.S. 137 (1977); United States v. Bond, 847 F.2d 1233, 1238 (1988), overruled by Rutledge v. United States, 517 U.S. 292, 300 (1996). Since then, the Supreme Court has held that "conspiracy as defined in sec. 846 does not define a different offense from the CCE offense defined in sec. 848." Rutledge v. United States, 517 U.S. 292, 300 (1996). Consequently, conspiracy is a lesser-included offense of CCE, and, as such, a court may not impose punishment for both offenses. Id. at 297, 300. Robinson argues that in light of Rutledge his convictions and sentences on both the conspiracy and CCE counts violate the double jeopardy clause of the Fifth Amendment. The district court ruled that Robinson waived this argument by pleading guilty.

Robinson contends that "a guilty plea does not waive a claim that an information or indictment, judged on its face, is constitutionally deficient in violation of the double jeopardy clause." Whether a guilty plea bars a Rutledge challenge to convictions for both conspiracy and CCE is an issue of first impression in this circuit. However, the general rule is that a guilty plea bars double jeopardy collateral attacks, with two notable exceptions. United States v. Broce, 488 U.S. 563, 569, 574 (1989). Under one exception, a guilty plea does not waive a double jeopardy claim to a charge that the government may not constitutionally prosecute, so long as it is clear from "the face of the record the court had no power to enter the conviction or impose the sentence." Id. at 569, 575; see also Dawson v. United States, 77 F.3d 180, 183 n.3 (7th Cir. 1996) (noting narrow exception to guilty plea waiver "where on the face of the record a court had no power to enter the conviction or impose the sentence at all"); United States v. Montilla, 870 F.2d 549, 552-53 (9th Cir. 1989) (ruling that the waiver applies only if the "judge could determine at the time of accepting the plea, from the face of the indictment or from the record," that sentence or conviction could not be imposed); Cf. Taylor v. Whitley, 933 F.2d 325, 330 (5th Cir. 1991) (guilty plea despite indictments or a trial court record that evince on their face a double jeopardy violation does not waive right to challenge the violation unless expressly relinquished). This exception to the general rule of waiver does not apply, however, if the record alone cannot establish the double jeopardy violation. Broce, 488 U.S. at 576; United States v. Makres, 937 F.2d 1282, 1286 (7th Cir. 1991) (double jeopardy challenge foreclosed by guilty plea where evidentiary hearing required to prove claim).

The record in this case demonstrates that the criminal conduct charged in the conspiracy count also served as the basis for the CCE charge; thus, Robinson's double jeopardy claim was not waived by his guilty pleas. For example, the time frames listed in the indictment for both the conspiracy charge (count 1) and the CCE charge (count 3) are identical--1980 until March 1992. Similarly, the indictment indicates that both the conspiracy and CCE charges involved the distribution of cocaine and marijuana in St. Clair County, Illinois, and the conspiracy and CCE are jointly referred to as "this drug trafficking enterprise" in the stipulated statement of facts. The indictment charges that as part of the conspiracy Robinson used couriers to transport large sums of money from southern Illinois to co-conspirators in Florida and elsewhere to acquire large quantities of marijuana and cocaine. This same activity is described as part of the CCE charge in the statement of stipulated facts. Thus, because it is clear from the record that convicting and sentencing Robinson on both the conspiracy and CCE charges violated his Fifth Amendment rights, he did not waive his double jeopardy claim.

The government never addressed Broce or whether Robinson's double jeopardy claim fits within the record exception. Instead, the government argues that if Robinson's guilty plea did not waive his double jeopardy claim it is barred by Teague v. Lane, 506 U.S. 461, 467 (1993). The government concedes that Rutledge created a new rule of law, but contends that under Teague new rules may not be applied retroactively to cases on collateral review. However, in Bousley v. United States, 523 U.S. 614, 620 (1998), the Supreme Court made it clear that Teague's retroactivity bar applies only to new rules of criminal procedure not to changes in substantive law. Thus, the government is incorrect; Teague has no bearing on Robinson's double jeopardy claim.

C. Ineffective Assistance of Counsel

1. Failure to Investigate Before Advising Robinson to Plead Guilty

Robinson claims his attorneys were ineffective because they failed to investigate the charges or interview witnesses before advising him to plead guilty. To establish ineffective assistance of counsel, Robinson was required to prove that his counsel's performance "fell below an objective standard of reasonableness," and that he was prejudiced. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In the context of Robinson's guilty pleas, he must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Whether Robinson was prejudiced on his failure to investigate claim depends on whether information that might have been discovered with further inquiry "would have led counsel to change his recommendation as to the plea." Id. at 59. This determination depends on the likelihood that the evidence would have changed the outcome at trial. Id.

Robinson asserts that if his trial counsel had interviewed Brian Whipple they would have learned that a grand jury witness lied about Robinson's sons stealing two kilograms of cocaine from Robinson's house and then traveling to Florida with Whipple to sell the drugs. Robinson also contends that if his trial counsel had conducted an adequate investigation they would have uncovered that a Drug Enforcement Agency (DEA) agent lied to the grand jury about Robinson's name appearing in a drug ledger. William Gavras, one of Robinson's trial attorneys, admitted at the evidentiary hearing held on Robinson's sec. 2255 motion that neither he nor Robinson's other lawyer, William Stiehl, knew about Whipple's version of the events, or the allegedly false drug ledger testimony. Gavras testified that they advised Robinson to plead guilty because of the overwhelming...