Thompson v. United States

• Decision Date: 18 October 2013
• Docket Number: No. 12-2814,12-2814
• Parties: MARVEL THOMPSON, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

MARVEL THOMPSON, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.

No. 12-2814

United States Court of Appeals For the Seventh Circuit

ARGUED OCTOBER 8, 2013

DECIDED OCTOBER 18, 2013

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11 C 3454 — Elaine E. Bucklo, Judge.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

PER CURIAM. Marvel Thompson pleaded guilty to conspiring to possess and distribute cocaine and heroin, see 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to 540 months in prison. This court affirmed the judgment. See United States v. White, 582 F.3d 787 (7th Cir. 2009). Thompson then filed a motion to vacate under 28 U.S.C. § 2255 alleging that (1) the government breached agreements with him (and two others who cooperated on his behalf) to recommend that he serve between 108and 135 months in prison, and (2) his attorneys rendered ineffective assistance at the time he pleaded guilty, at sentencing, and on appeal. The district court denied his motion, and we affirm.

I. BACKGROUND

In 2004, Thompson was charged by indictment along with 45 others for participating "in a long-running conspiracy involving the distribution of vast amounts of cocaine, heroin, and marijuana by the Black Disciples street gang in Chicago." White, 582 F.3d at 793. Thompson was the gang's leader (known as a "king"), who oversaw the South Side drug operations, and used guns and ordered violence to further the gang's interests. Id. at 793-94.

After his arrest Thompson immediately began negotiating a plea agreement with the government, hoping to limit his sentence to 10 years' imprisonment and secure the return of more than $300,000 worth of property that the government had seized. He claims the government "tentatively agreed" to these terms with him and his first attorney. But when Thompson's second attorney, Jack Friedlander, presented Thompson with a draft of the finalized plea agreement offered by the government, the terms were less favorable. Specifically the factual basis of the agreement required Thompson to admit that he had been the king of the Black Disciples, had used guns to further the conspiracy's objectives, and was responsible for greater drug quantities than Thompson was willing to acknowledge. Moreover, the government was only willing to recommend a sentence of 15, rather than 10, years and refused to return Thompson's seized property.

Thompson informed Friedlander that "under no circumstances" would he agree to the terms of the written plea agreement, but nevertheless proceeded with a change of plea hearing. When Thompson arrived for the hearing, the district judge allowed him an opportunity to speak with Friedlander and his family, who all urged Thompson to accept the written plea agreement. After that conversation, Friedlander advised the judge that Thompson would not accept the written agreement, but that "against [counsel's] advice" he wished to enter a "blind plea." Thompson told the judge: "I want to plead guilty to the things that I done, and things in that plea I can't plead guilty to it because I didn't do it." Concerned that Thompson was affected by the emotional conversation he had with his family, the judge recessed the hearing until later in the afternoon.

Thompson alleges that during the recess he spoke with Friedlander and the prosecutor and reached an agreement to plead guilty to a limited factual basis if the government would agree to a Guidelines range of 108 to 135 months' imprisonment. When the hearing resumed Friedlander expressed concern that, despite his efforts to explain the nature of the conspiracy charge, Thompson's understanding of conspiracy and the law of conspiracy were "two different things." The court conducted a thorough colloquy as required by Federal Rule of Criminal Procedure 11, advising Thompson of the minimum and maximum penalties he would face, ensuring that no promises had induced his plea, and warning him that the government at sentencing would seek to increase his Guidelines imprisonment range by proving the aggravating factors that Thompson refused to admit. Thompson thenpleaded guilty to the conspiracy charge, and though he would not admit to the entire factual basis offered by the government, he did admit having sold more than five kilograms of cocaine and one kilogram of heroin to two members of the conspiracy, Donnell Jehan and Kenyatta Coates, knowing that they would resell the drugs. Thompson also explicitly acknowledged that the government would attempt to prove additional facts at sentencing. The district court accepted his plea.

Thompson also claims that the government had agreed with two individuals to recommend that Thompson receive a sentence of about 10 years if those individuals would participate in a government investigation, which they did.

Shortly after pleading guilty, Thompson hired Andrea Gambino to replace Friedlander. Thompson now complains that Gambino refused to present evidence about the agreements between the government and the individuals cooperating on his behalf or argue that the government had breached those agreements. But in fact Gambino did call one of the individuals to testify at the sentencing hearing. This individual explained that she cooperated with the government because "it was supposed to help" Thompson. But Gambino clarified, without objection from Thompson, that no formal agreement was ever reached enabling Thompson to receive credit for this cooperation. The government recommended a life sentence (based in part on an offense level increased by more significant drug quantities than Thompson had pleaded to, as well as adjustments for Thompson's leadership role and possession of guns) and, although it acknowledged the cooperating individual's work, argued that Thompson should receive no leniencybecause he was never forthcoming and truthful with the government.

Thompson now says that he was so frustrated with Gambino, even at that time, that he attempted to file his own brief on appeal focusing on the government's breach of its agreements. The pro se brief that Thompson in fact submitted (and that this court refused to accept for filing), however, nowhere mentions any agreements between Thompson or the other individuals and the government. This court upheld Thompson's sentence, concluding that the government submitted a "mountain of evidence" in support of the adjustments for Thompson's leadership role and possession of guns. See White, 582 F.3d at 794-98. Given the ample evidence against Thompson and his continued insistence that he was barely involved with the Black Disciples or the distribution of drugs, this court repeatedly characterized him as having lied to or misled the district court, so much so as to warrant an obstruction of justice enhancement. See id. at 796-97.

Thompson, who eventually retained counsel, argued in his § 2255 motion that (1) the government breached its deals with him and the other two individuals, (2) his guilty plea was not knowing and voluntary, and (3) Friedlander and Gambino rendered ineffective assistance. The district court denied Thompson's motion and refused to grant a certificate of appealability, concluding that he failed to support his allegations with evidence sufficient to require an evidentiary hearing, let alone a grant of relief. Specifically, the court reasoned that Thompson's guilty plea was knowing and voluntary because his claims about breached agreements and Friedlander's failure to explain the consequences of his pleawere belied by Thompson's assurance at the colloquy that no promises had induced his plea and the court's own explanation to Thompson of the sentencing process. Because Thompson could not establish that any agreements induced his plea, the court concluded, he also could not claim that Gambino rendered ineffective assistance by failing to address those alleged agreements at sentencing or on appeal. This court then granted a certificate of appealability inviting Thompson to address (1) whether his guilty plea was knowing and voluntary, and (2) whether Friedlander adequately explained the consequences of pleading guilty to a conspiracy.

II. ANALYSIS

Thompson first cursorily argues that Friedlander was ineffective because he failed to investigate the "tentative" agreement Thompson's first attorney had been negotiating with the government. According to Thompson's own filings, however, Friedlander was aware of the negotiations between Thompson and the government. And, again according to Thompson, that agreement was never finalized and thus could not have induced his plea. See Marby v. Johnson, 467 U.S. 504, 510 (1984). Moreover, Thompson cannot now claim, this late in the game, that the agreement was final and binding on the government because he acknowledged under oath at the plea colloquy that no promises had been made to him to induce a plea. And "a motion that can succeed only if the defendant committed perjury at the plea proceedings may be rejected out of hand unless the defendant has a compelling explanation for the contradiction." United States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005); see also United States v. Jones, 381 F.3d 615, 619 (7th Cir. 2004).

Thompson's bald explanation—that he was simply confused and did not realize that the term "promises" encompassed the oral agreement he allegedly reached...