United States v. Cates
| Decision Date | 18 February 2020 |
| Docket Number | No. 19-1042,19-1042 |
| Citation | 950 F.3d 453 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marvin CATES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Molly E. Donnelly, Attorney, Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.
Johanna M. Christiansen, Attorney, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before Wood, Chief Judge, and Hamilton and Scudder, Circuit Judges.
Marvin Cates pleaded guilty to possessing a firearm as a person with a prior felony conviction in violation of 18 U.S.C. § 922(g)(1). After the court accepted his guilty plea, Cates sought to withdraw it.
The district judge denied the motion to withdraw the plea and sentenced Cates.
Cates has appealed, claiming ineffective assistance of counsel. He says that he made a timely request to withdraw his guilty plea and that his trial counsel was deficient in failing to move to withdraw it. We questioned whether Cates truly wishes us to decide his ineffective-assistance claim on this record, including a directive to his appellate counsel to review the question with him after oral argument. He has insisted that he wants to have his claim decided on the existing record. Because the record contains insufficient evidence to support Cates’s ineffective-assistance claim, we affirm.
Marvin Cates was transporting drugs from Chicago to South Bend when he was pulled over by a sheriff’s deputy for driving without rear license-plate lights. When the deputy approached Cates’s vehicle, he saw a revolver on the passenger seat. Cates admitted that he did not have a license for the firearm and was placed under arrest. Retail quantities of cocaine and heroin were later found in his possession. Cates was charged in federal court with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the items seized during the search of his car, but the motion was denied.
On September 12, 2018, Cates and the government submitted a plea agreement to the court. Cates agreed to plead guilty to the sole count of the indictment. The government agreed in exchange not to bring additional charges against him. As part of the plea agreement, Cates waived his right to appeal or otherwise contest his conviction "on any ground other than a claim of ineffective assistance of counsel."
The plea agreement was referred to a magistrate judge, who held a Rule 11 hearing on September 17. The magistrate judge found that Cates was competent to enter a plea, did so knowingly and voluntarily, and understood the rights he was waiving, including the right to appeal. The magistrate judge recommended that the district judge accept the guilty plea. On October 3, the district judge accepted the guilty plea, finding Cates guilty of the sole count in the indictment. The case was on track for sentencing.
On October 16, however, Cates’s first attorney moved to withdraw, reporting a complete breakdown of the attorney-client relationship. A new lawyer was appointed and then filed a motion to withdraw the guilty plea. The motion said that Cates had entered the guilty plea under duress because he was threatened with new charges and was given only one hour to accept the plea deal or face the risk of additional prison time.
On December 13, 2018, the district court held a hearing on the motion to withdraw the guilty plea. Cates’s testimony at the hearing focused on his claim that he entered the plea under duress. He also testified, however, that before he received the letter from the district judge accepting the guilty plea, he had told counsel that he "changed [his] mind" and did not want to waive his rights, but that his lawyer told him that it was too late to withdraw the plea. Cates estimated that the judge’s letter arrived on October 4 or 5. Though Cates could not pinpoint an exact date, he insisted that he told his lawyer he wanted to withdraw his plea before the judge’s letter arrived. The district court denied Cates’s motion to withdraw the plea, concluding that he had not been under duress or unduly pressured given the five days between the submission of the guilty plea and the Rule 11 hearing. Cates was sentenced to 262 months in prison. He qualified for the enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on five prior convictions for serious drug offenses or violent felonies.
The sole issue on appeal is whether Cates received the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. He argues that his trial lawyer was constitutionally ineffective in failing to move to withdraw his guilty plea when he could still withdraw his plea as of right. This issue falls within the ineffective-assistance exception to the appeal waiver in the plea agreement.
We review for plain error because Cates never adequately raised the ineffective-assistance claim before the district court. See Fed. R. Crim. P. 52(b). The motion to withdraw his plea gave duress as the reason for withdrawing the plea. It did not mention a timely attempt to withdraw the guilty plea before the court accepted it, though Cates did mention this during his testimony at the hearing. Cates acknowledges correctly in his brief that the ineffective-assistance argument was not raised as a ground for withdrawing the guilty plea, claiming that "second defense counsel failed [at the hearing] to raise the proper grounds for withdrawing the plea."1
Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), provides the framework for evaluating ineffective assistance of counsel claims. Cates "must show both that his attorney’s performance was outside the range of professionally competent assistance and that the deficient performance denied him a fair trial." United States v. Stark , 507 F.3d 512, 521 (7th Cir. 2007), quoting United States v. Banks , 405 F.3d 559, 569 (7th Cir. 2005). In addition, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland , 466 U.S. at 690, 104 S.Ct. 2052 ; see also Banks , 405 F.3d at 568 ().
Cates argues that his first lawyer’s representation was unconstitutionally deficient because he did not move to withdraw the guilty plea when Cates asked him to do so. Under Federal Rule of Criminal Procedure 11(d)(1), "A defendant may withdraw a plea of guilty or nolo contendere before the court accepts the plea, for any reason or no reason ...." See also United States v. Shaker , 279 F.3d 494, 497–98 (7th Cir. 2002) (). Because the decision to plead guilty lies entirely with the defendant, Cates argues, counsel must move to withdraw the plea when asked, and a failure to do so constitutes deficient representation. Cates says that he was prejudiced because, if counsel had moved to withdraw the plea promptly, Cates would have had the opportunity to go trial. See United States v. Arami , 536 F.3d 479, 484 (5th Cir. 2008) ().
Raising an ineffective-assistance claim on direct appeal is almost always imprudent. Proceedings in the district court aim to determine guilt or innocence.
They are unlikely to show conclusively whether a lawyer’s representation was inadequate and had an effect on the outcome of litigation. Massaro v. United States , 538 U.S. 500, 504–05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Unless the issue was raised and a full record developed in the trial court, an appellate court cannot determine on direct appeal whether counsel’s assistance was ineffective. Essential evidence of counsel’s actions and reasoning will simply be lacking. Id. By raising an ineffective-assistance claim prematurely, on direct appeal, a defendant can easily throw away any chance he has at success because the claim may not be presented a second time on collateral attack under 28 U.S.C. § 2255. Peoples v. United States , 403 F.3d 844, 846 (7th Cir. 2005), citing United States v. Taglia , 922 F.2d 413, 418 (7th Cir. 1991). For these reasons, we have repeatedly warned defendants against bringing ineffective-assistance claims on direct appeal. E.g., Ramirez v. United States , 799 F.3d 845, 853 (7th Cir. 2015) ; United States v. Stuart , 773 F.3d 849, 850 (7th Cir. 2014) ; United States v. Moody , 770...
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