Swanson v. United States

• Decision Date: 22 August 2012
• Docket Number: No. 11–2338.,11–2338.
• Citation: 692 F.3d 708
• Parties: David H. SWANSON, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

692 F.3d 708

David H. SWANSON, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 11–2338.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 24, 2011.

Decided Aug. 22, 2012.

Carol A. Brook, William H. Theis (argued), Attorneys, Office of the Federal Defender Program, Chicago, IL, for Petitioner–Appellant.

Gerald A. Coraz (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Respondent–Appellee.

Before SYKES and TINDER, Circuit Judges, and DeGUILIO, District Judge.^*

TINDER, Circuit Judge.

David Swanson alleges in a 28 U.S.C. § 2255 petition that his trial counsel abandoned a poorly developed but winning objection at sentencing that justifies a finding of ineffective assistance of counsel. But Swanson's trial counsel did not abandon the objection; rather, his appellate counsel failed to raise it on direct appeal. Swanson does not challenge his appellate counsel's effectiveness, and because trial counsel raised the objection in a sentencing memorandum (twice) and never withdrew it, we cannot conclude that his performance was objectively deficient. We affirm the denial of his petition.

I. Factual Background

A jury convicted Swanson of a number of fraud, tax, and money laundering offenses after a three-week trial. Swanson failed to appear for his January 2003 sentencing hearing, but was apprehended as a fugitive in Seattle the next month and sentenced in March 2003. Importantly for this appeal, his presentence report (PSR) recommended a four-level U.S.S.G. § 3B1.1(a) enhancement for his purported status as an organizer-leader of criminal activity, driving his total offense level to 34 with a 151–188 month guideline range. Swanson's trial counsel filed 13 pages of objections, including the following to the four-level § 3B1.1(a) enhancement in two separate paragraphs of the objections: ¹

Adjustments for Role of the Offense: Defendant objects to any adjustment pursuant to Section 3B1.1 as the evidence revealed there was no criminal organization. The evidence did not reveal any other participants in the scheme alleged by the government.

Removing the § 3B1.1(a) enhancement would have produced an offense level of 30 and a guideline range of 97–121 months. Along with his other objections, Swanson's attorneys advocated for a 46–57 month range based on adjusted offense levels of 22 for the wire fraud and receipt of stolen money convictions and 23 for the tax fraud and money laundering convictions.

A focus of Swanson's sentencing hearing was his objection to the PSR's use of the 2001 guidelines and whether the variances between that version and the 1998 edition, proposed by Swanson's trial counsel, mattered. In the midst of this discussion, this exchange took place between the district judge and the defense counsel with the Assistant U.S. Attorney (AUSA) interjecting at one point:

Judge: ... just tell me which paragraphs are different under the 1998 guidelines. Is it paragraph 50? Is it paragraph 51? Is it paragraph 52, et cetera? [The numbers refer to numbered paragraphs in the PSR.]

* * *

Judge: Any other changes?

Defense counsel: That's 51. Then we're looking at, would be rhetorical paragraph 54.

Judge: Role in the offense? There would not be a two level?

AUSA: I'm sorry, it's 55, Your Honor. They had four levels for aggravating role. And that's not included in the '98 guideline.

Judge: It's not?

Defense counsel: That I saw. We don't disagree with page—or rhetorical paragraph 54.

Judge: 3[B]1.1(a)?

Defense counsel: Right.

Judge: Do you agree there's a four level increase there?

Defense counsel: Yes.

Judge: I remember a four level increase forever. So I was right on that. So we're just talking about paragraph 51 so far?

Defense counsel: Right.

* * *

Defense counsel: Judge, we think that when you recalculate under the '98 guidelines that you come to a base offense level of 22.²

The district judge overruled the objection to using the 2001 guidelines and announced that “unless there's something in there I don't know about” the court and counsel had addressed the objections relating “to counsel's interpretation of the applicability of the guidelines.” The defense counsel agreed that the court understood Swanson's position on the differences between the two versions of the guidelines. The district judge summarized the objection as Swanson's view that the 1998 guidelines should have been used and overruled the objection. The judge then touched on an unrelated objection and announced “I think that's all according to my notes. Do you know of any others that I have not covered that I need to make a specific ruling on?” Defense counsel said, “No, Your Honor.” The district judge then announced that the guideline offense level was 34, and asked defense counsel whether he agreed “with that computation without waiving any of your other legal objections?” S.A. 159 (emphasis supplied). Counsel's response was, “Yes, Your Honor.” The district judge then stated that the PSR “is a correct application of the guidelines in my judgment. The objections that have been interposed have been overruled and so I would use this formulation as my own, and it will be the basis on which the remaining sentencing decisions are made.” Swanson was sentenced to 180 months' imprisonment. Swanson appealed, replacing his trial counsel with new counsel who represented him in his first appeal, at resentencing, in a second appeal, and in the § 2255 proceeding that is now before this court. (To avoid confusion, we will hereafter refer to counsel who represented Swanson through the initial sentencing as “trial counsel.”)

On appeal, we agreed with the government's concession that the district court erred in using the 2001 guidelines and the error was not harmless because the 1998 version produced a range of 121–151 months. We addressed various other issues and remanded for resentencing under the 1998 guidelines and for any recalculation that might be necessary in light of the then-pending United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) decision. We noted that depending on Booker's outcome (decided five days later), the court may need to reconsider the other enhancements “including the enhancement for the sophisticated means employed during the commission of the crime (U.S.S.G. § 2B1.1(b)(8)(C)), for abuse of a position of trust (U.S.S.G. § 3B1.3), and for extensive criminal activity (U.S.S.G. § 3B1.1(a)).” United States v. Swanson, 394 F.3d 520, 526 n. 1 (7th Cir.2005) (Swanson I ) (citing a prior version of the guidelines).

At Swanson's second sentencing, the district judge recognized that the Booker decision governed and that the new guideline calculation of 121–151 months played a role in calculating a new sentence. The revised PSR retained the four-level § 3B1.1(a) enhancement and proposed a total offense level of 32. Swanson's counsel objected to the § 3B1.1(a) enhancement, among others, because he contended that the evidence did not show that others were culpable in Swanson's crime and therefore he could not be an organizer. Without the four levels added because of § 3B1.1(a), Swanson's guideline range would have been 78–97 months. After discussing with the AUSA the evidence of the participation of others, the district judge denied Swanson's objection to the § 3B1.1(a) enhancement but also rejected the government's argument for a 180–month sentence and imposed a 151–month sentence. Swanson appealed again.

But unlike his first appeal, Swanson raised an objection (among others) to the § 3B1.1(a) enhancement. We refused to consider the argument because it was not raised in the first appeal, and thus, had been waived. See United States v. Swanson, 483 F.3d 509, 514 (7th Cir.2007) (Swanson II ) (stating that “any issue that could have been but was not raised on appeal is waived and thus not remanded” (quoting United States v. Husband, 312 F.3d 247, 250–51 (7th Cir.2002))). We also noted that Swanson had not made the § 3B1.1(a) argument “at the first sentencing hearing,” id. at 511, but as we explain below, this comment was both inaccurate and dictum. Although we had mentioned in Swanson I that the district court might need to consider § 3B1.1(a)'s application depending on Booker's outcome, “that contingency did not come to pass.” Swanson II, 483 F.3d at 515. Thus, the “district court did not have to revisit its decision to impose the aggravating role adjustment” because “any factual dispute as to its application” went beyond our remand's scope. Id. And “Swanson ‘cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal.’ ” Id. (quoting United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996)).

Swanson filed a 28 U.S.C. § 2255 petition maintaining that there was no evidence to support a § 3B1.1(a) enhancement, that trial counsel “filed an unelaborated objection to this proposed finding,” and that at sentencing “they withdrew the objection” in a way that failed to preserve it for review on his first appeal. Swanson blamed our refusal to review this issue in Swanson II on “the failure of my attorneys at the first sentencing hearing.” A hearing on the § 2255 petition was held and trial counsel was deposed about the sentencing matters. The deposition was introduced into evidence in the § 2255 proceeding. In the deposition, trial counsel denied withdrawing or abandoning the § 3B1.1(a) objection. Trial counsel suggested that his comment agreeing that “there's a four level increase there” affirmed that both the 1998 and the 2001 guidelines provided a four-level enhancement for § 3B1.1(a). He also said that he assumed the court reads written objections and that “I don't normally go down in sentencing and argue every point unless the Court directs its attention to that particular point.” After reviewing the transcript of the initial sentencing hearing, trial counsel said that the district judge...