U.S. v. Madewell

• Decision Date: 30 October 1990
• Docket Number: No. 89-3700,89-3700
• Citation: 917 F.2d 301
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Wheeler MADEWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 301

917 F.2d 301

UNITED STATES of America, Plaintiff-Appellee, v. Paul Wheeler MADEWELL, Defendant-Appellant.

No. 89-3700.

United States Court of Appeals Seventh Circuit.

Argued Sept. 19, 1990.

Decided Oct. 30, 1990.

Stephen B. Clark, Thomas M. Daly, Asst. U.S. Attys., Office of U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Cheryl I. Niro, Oak Park, Ill., for defendant-appellant.

Before FLAUM, EASTERBROOK and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Defendant Paul Madewell was found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). The district court sentenced him to 41 months in prison. Madewell appeals his conviction contending that he is entitled to a new trial because his trial counsel afforded him constitutionally inadequate assistance. He also appeals his sentence on the ground that the district court erred in its interpretation and application of the Sentencing Guidelines. We affirm both Madewell's conviction and sentence.

I.

On August 15, 1988, Officer Walter Milton of the Granite City, Illinois Police Department responded to a call for help from defendant Madewell's live-in girlfriend, Debra Wilson. Milton arrived at Wilson and Madewell's apartment building to find Wilson with a bloodied mouth; she requested that Milton accompany her into the apartment so that she could safely retrieve her clothes. Officer Milton knocked on the apartment door and Madewell opened it. Wilson entered the apartment and invited Milton inside. Madewell and Wilson immediately began arguing. Madewell then turned to Officer Milton and demanded that he leave the apartment and secure a search warrant. Debra Wilson soon left the apartment, at which time Madewell leveled a cocked gun at Officer Milton and demanded again that he leave. Milton backed out of the apartment with his hands raised and then radioed for assistance.

After being joined by several officers, Milton forcibly reentered Madewell's apartment. The officers searched the apartment and found Madewell hiding in his bathtub behind a shower curtain. Madewell refused to come out of the bathroom and shouted that if the officers attempted to capture him he would "blow their heads off." Thereafter the officers subdued Madewell, recovered the firearm he had brandished, and took him into custody.

Three days later, after being advised of his Miranda rights, Madewell agreed to talk to Lt. David Reubhausen of the Granite City Police. Lt. Reubhausen took down Madewell's statement; Madewell then read Reubhausen's transcript and signed each page to attest to its accuracy. Regarding his armed ejection of Officer Milton, Madewell stated that "if the officer had reached for his gun, I would have shot him." Madewell admitted that when the police then reentered his apartment, he "check[ed] [his] gun to make sure it was ready to go." He stated that he sought refuge in the bathtub so that he could "get [the officers] without getting hurt." He also told police that while in the bathtub he had chambered a round in his gun and cocked it.

Investigation by the Bureau of Alcohol, Tobacco and Firearms (BATF) revealed that Madewell had been convicted of a prior felony--in 1980 he had been found guilty in an Arkansas court of possession of a controlled substance with intent to deliver. BATF also determined that Madewell's gun had been manufactured in Florida and thus had crossed state lines and "affected" interstate commerce.

Madewell was indicted in federal court for being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1), and for filing a false statement with a gun dealer in which he failed to acknowledge that he was a convicted felon in violation of 18 U.S.C. Sec. 922(a)(6).

A jury found Madewell guilty on the felon-in-possession charge and acquitted him on the false statement charge. In sentencing Madewell under the Sentencing Guidelines, the district court noted that the base offense level for Madewell's felon in possession conviction was properly computed by referencing the Guideline provision relevant to the "offense conduct" underlying his arrest and conviction. See United States Sentencing Commission, Guidelines Manual, Sec. 2K2.1(c)(2) & comment. (backg'd.) (Nov.1989). The court found the guideline for the offense conduct of Aggravated Assault, Sec. 2A2.2, applicable to Madewell's circumstances. The Guidelines Commentary defines aggravated assault in relevant part as a "felonious assault that involved ... a dangerous weapon with intent to do bodily harm (i.e., not merely to frighten)...." U.S.S.G. Sec. 2A2.2, comment. (n.1). The district court held that Madewell's conduct fit this definition. Accordingly, it computed the base offense level for Madewell's crime to be 15, and added 3 points for brandishing a firearm, Sec. 2A2.2(b)(2), and three more because the victim of Madewell's assault was a law enforcement officer, Sec. 3A1.2. The resulting offense level of 21 indicated a sentence of 41 to 51 months. The district court sentenced Madewell to 41 months imprisonment.

Madewell's appellate counsel filed a notice of appeal. Madewell independently filed his own Motion for Mistrial Due to Ineffective Assistance of Counsel with the district court. The district court did not rule on his motion as the issue it raised would be resolved in this appeal.

II.

Defendant alleges that the cumulative impact of two different errors by his trial counsel constituted ineffective assistance of counsel in contravention of the sixth amendment. ¹ In order to prevail in his claim, Madewell must meet both prongs of the test propounded by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defendant must show both that counsel's performance was deficient and not "within the range of competence demanded of attorneys in criminal cases" and that counsel's errors were so serious as to deprive the defendant of "a trial whose result is reliable." 466 U.S. at 687, 104 S.Ct. at 2064. In going about this inquiry we recognize that our scrutiny of counsel's performance "must be highly deferential" and that we should afford counsel's conduct a "strong presumption" of reasonableness. Id. at 689, 104 S.Ct. at 2065; see also United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir.1990).

Madewell first contends that his trial counsel should have moved to suppress both the gun and his post-arrest statement to police on the grounds that the warrantless reentry of Madewell's apartment and warrantless arrest of Madewell himself violated the fourth amendment. ² Apparently counsel did not do so because he believed that such a motion would be unsuccessful. Defendant argues that because the gun in particular was central to the felon-in-possession prosecution, trial counsel should have sought its suppression irrespective of the perceived likelihood of success of such a motion, so long as the motion could be made in "good faith." The likelihood of success of a motion, however, is directly relevant to the question of whether the failure to make it constitutes inadequate assistance of counsel. If a particular trial tactic is clearly destined to prove unsuccessful, then the sixth amendment standard of attorney competence does not require its use. See United States v. Nolan, 910 F.2d 1553, 1564 (7th Cir.1990) ("It is not ineffective assistance for counsel not to file a meritless motion."); Goins v. Lane, 787 F.2d 248, 254 (7th Cir.), cert. denied, 479 U.S. 846, 107 S.Ct. 165, 93 L.Ed.2d 103 (1986).

In this case, the likelihood of successfully suppressing the gun or Madewell's statement to police was slight. Madewell drew a gun on Officer Milton after Milton was invited into the apartment by Debra Wilson, a resident of the apartment with apparent authority to authorize the entry. See Illinois v. Rodriguez, --- U.S. ----, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990). Madewell's actions arguably amounted to aggravated assault under Illinois law. See Ill.Ann.Stat. ch. 38, para. 12-1(a), 12-2(a) (Smith-Hurd 1979 & Supp.1990). ³ Consequently, Milton's forcible re-entry of Madewell's apartment with his fellow officers constituted pursuit of an armed individual whom the police had probable cause to believe had committed a felony. The officers could have reasonably believed that Madewell, having ejected Milton at gunpoint, was likely to flee the apartment and possibly pose a further threat to public safety or attempt to dispose of his gun. Warrantless entry and pursuit under such exigent circumstances does not violate the fourth amendment. See United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300 (1976); Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967); United States v. Ware 914 F.2d 997, 1000 (7th Cir.1990) ("Exigent circumstances exist when there is a reasonable belief by police that their safety or the safety of others may be threatened"); United States v. Dowell, 724 F.2d 599, 602 (7th Cir.1983), cert. denied, 466 U.S. 906, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984) (same); United States v. de Soto, 885 F.2d 354, 368 (7th Cir.1989) (fear of disposal of evidence may constitute exigent circumstances). Similarly, while warrantless arrests inside a suspect's home are generally prohibited by the fourth amendment, see Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the presence of exigent circumstances, when twinned with probable cause, excuses the absence of an arrest warrant. See Welsh v. Wisconsin, 466 U.S. 740, 749-51, 104 S.Ct. 2091, 2097-98, 80 L.Ed.2d 732 (1984); Steagald v. United States, 451 U.S. 204, 211-12, 101 S.Ct. 1642, 1647-48, 68 L.Ed.2d 38 (1981); United States v. Campbell, 581 F.2d 22, 25-26 (2nd Cir.1978).

Thus, defense motions to suppress Madewell's gun and statement to police would have failed. It follows that while Madewell's trial counsel may not have acted in exceptionally zealous...