United States v. Bjorkman, Trevor ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-3302, 99-4025, 99-4026, 99-4091 & 99-4092
United States of America,
Plaintiff-Appellee,
v.
Trevor Bjorkman, Paul Gunderson, Travis
Fearing, Dennis Gunderson, and Joel Hagen,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 99 CR 37--John C. Shabaz, Judge.
Argued June 8, 2001--Decided October 30, 2001
Before Bauer, Easterbrook, and Kanne,
Circuit Judges.
Per Curiam. Pursuant to guilty pleas,
the five appellants were convicted of
conspiracy to possess with intent to dis
tribute and to distribute marijuana. They
raise various challenges to their
sentences. In addition, one of the appel
lants appeals the district court’s denial
of his motion for substitution of
counsel, and another objects to the fine
imposed by the court. We affirm.
BACKGROUND
The five appellants participated in a
drug operation which involved buying
marijuana from Mexican sources through
contacts in Arizona and transporting it
to Minnesota, where it was repackaged and
distributed to a group of customers. The
enterprise started some time in February
of 1996, when Paul Gunderson paid an
individual in Tempe, Arizona $10,000 to
set up a 100-pound marijuana deal. Paul
Gunderson’s brother Dennis and two others
went to the marijuana source near Tuscon,
and Dennis and one other person picked up
the 100 pounds of marijuana and drove it
to Paul Gunderson’s apartment in
Minnesota.
At some point in 1996, Paul Gunderson
offered Joel Hagen a 50% interest in the
drug operation. From early to mid 1996,
Paul Gunderson and Hagen used a number of
drivers to bring the marijuana in from
Arizona, including Dennis Gunderson,
Trevor Bjorkman, Travis Fearing, and Wade
Stafne. These drivers brought back
several loads of marijuana, each of which
weighed approximately 100 pounds. The
loads were delivered either to Hagen’s
residence or to Paul Gunderson’s
apartment, both in Minnesota. There,
Hagen, Paul Gunderson and others
repackaged the marijuana into one-pound
freezer baggies and distributed it to
regular customers, each of whom received
between 10 and 40 pounds of marijuana. At
various times during 1996, Bjorkman and
Fearing played the role of "human
collateral" (that is, they were held in
Arizona by the marijuana suppliers until
the suppliers were paid). By mid-1996,
Hagen wanted out of the partnership, but
he continued to receive large portions of
the marijuana delivered to Paul
Gunderson.
In early 1997, Hagen and Paul Gunderson
had a falling out and ended their drug
partnership. Thereafter, Paul and Dennis
Gunderson continued to obtain marijuana
from their Mexican sources in Tuscon, but
they used a new set of drivers. After
authorities executed a search warrant at
Paul Gunderson’s residence in June of
1997, Gunderson sold the operation to his
brother Dennis and Dan Madsen for
$100,000. Meanwhile, Hagen went into
business with an individual named Scot
Hendricks. Hagen arranged for deliveries
of marijuana to be brought to Minnesota
by couriers, including Fearing and
Stafne. The marijuana was repackaged at
Hagen’s residence, after which Hagen and
Hendricks each claimed a portion for
sale. Hagen and Hendricks continued to
obtain marijuana from Arizona in this
manner throughout the spring and summer
of 1998, receiving at least one shipment
of approximately 100 pounds at Hagen’s
residence in May of 1998.
In August of 1998, search warrants were
executed at 18 locations throughout
Wisconsin and Minnesota. A search of
Hagen’s residence led to the seizure of
$122,640, a scale, drug packaging
materials, two Smith & Wesson handguns,
and a clip loaded with hollow-point
bullets. At Hagen’s brother’s residence,
police found an additional $30,000 of
Hagen’s money. A search of Paul
Gunderson’s residence yielded ten one-
pound bags of marijuana and a number of
firearms.
On June 3, 1999, the appellants and two
others were charged in Count 1 of a
superceding indictment with conspiracy to
possess with intent to distribute and to
distribute marijuana in violation of 21
U.S.C. sec. 846 and 841(a)(1). Consistent
with then-existing case law, the
indictment did not allege a quantity of
marijuana. Each of the defendants pleaded
guilty to Count 1, and each signed a
written plea agreement. Each defendant’s
plea agreement provided that the offense
to which he was pleading guilty exposed
him to a mandatory minimum sentence of 5
years, and a maximum sentence of 40
years. The district court repeated these
facts during each defendant’s plea
hearing, whereupon each indicated his
understanding and agreement. In addition,
Bjorkman’s, Paul Gunderson’s, and
Fearing’s plea agreements set out the
government’s position regarding the
amounts of marijuana attributable to each
defendant. Addressing Bjorkman and Paul
Gunderson individually during their plea
hearings, the district court repeated the
government’s position on the amounts of
marijuana attributable to them.
Presentence reports (PSRs) were prepared
for each of the five defendants. Each PSR
calculated the defendant’s base offense
level under the guidelines with reference
to particular drug quantities. In
Bjorkman’s, Fearing’s, and Paul
Gunderson’s cases, the PSR’s calculation
as to drug quantities fell within the
ranges posited by the government in each
of their plea agreements. Moreover, the
PSRs found each of the five defendants
accountable for quantities of marijuana
well in excess of the amount triggering a
sentencing exposure of 5 to 40 years.
During a joint plea hearing held for
Dennis Gunderson, Paul Gunderson,
Fearing, and Hagen, the government set
out a detailed, consolidated factual
basis which referenced quantities of
marijuana. For example, the government
stated that Paul Gunderson and Hagen used
drivers (including Fearing, Bjorkman and
Dennis Gunderson) to obtain loads of
marijuana which averaged 100 pounds from
Arizona, and to deliver them to Hagen or
Paul Gunderson’s residences in Minnesota.
The government also stated that after he
fell out with Paul Gunderson, Hagen
continued this practice, using Fearing
and other couriers. The government made
reference to various specific trips and
drug quantities. Hagen, Paul Gunderson,
and Fearing agreed completely with the
government’s proffer. Dennis Gunderson
challenged the proffer only by pointing
out that he had ended his involvement in
the conspiracy in December of 1997. The
government put forward a similar factual
basis at Bjorkman’s plea hearing, and
while Bjorkman did not admit to all of
the government’s quantity calculations,
he admitted that he was responsible for
participating in several marijuana
delivery trips which involved quantities
of 40 pounds, 85-100 pounds, and further
indeterminate amounts. Bjorkman further
admitted that he couldn’t disagree if the
government suggested that it could prove
the number of pounds involved by a
preponderance of the evidence. At no
point prior to this appeal did any of the
defendants challenge the position that
the mandatory minimum sentence for the
offense of conviction was 5 years, or
that the maximum sentence was 40 years.
After applying various guideline
enhancements, the district court
sentenced the appellants to prison terms
ranging from 105 to 155 months in prison
plus 5 years of supervised release for
each, and imposed a $40,000 fine plus
criminal forfeiture on Hagen. The
appellants’ appeal their sentences,
raising two joint issues together with
various individual issues. We find some
of these issues meritless and do not
discuss them. For those issues that we do
address, we include a discussion of the
facts necessary for their resolution.
DISCUSSION
A. Apprendi issue
Defendants were indicted and pled guilty
before the Supreme Court decided Apprendi
v. New Jersey, 530 U.S. 466 (2000).
Neither the indictment nor the guilty
pleas mentioned any specific quantity of
marijuana, and defendants did not ask the
district judge to ascertain that quantity
using the reasonable-doubt standard. Our
review therefore is limited to a search
for plain error. See United States v.
Nance, 236 F.3d 820 (7th Cir. 2000).
Defendants do not seriously deny that, if
the district judge had used the
reasonable-doubt standard, he would have
concluded that they conspired to
distribute more than 100 kilograms of
marijuana (or more than 100 marijuana
plants), a quantity that exposed each to
a maximum of 40 years’ imprisonment--
exactly as each plea agreement recited.
See 21 U.S.C. sec. 841(b)(1)(B)(vii). In
an effort to avoid this conclusion,
defendants contend that after Apprendi
drug quantity is an "element" of the
offense established by sec.841 and that
omission of this element means that the
district court lacked jurisdiction--which
would lead to reversal of the convictions
and dismissal of the indictment without
regard to the plain-error standard. To
employ defendants’ approach we would have
to overrule not only Nance (which adopted
the plain-error standard for review of
forfeited Apprendi arguments) but also
United States v. Brough, 243 F.3d 1078
(7th Cir. 2001), which held that drug
quantity is not an element of sec.841 in
the technical sense. Neither case is ripe
for overruling; nor are we attracted to
defendants’ position as an original
matter.
According to defendants, an indictment
that does not mention an element of the
offense does not confer subject- matter
jurisdiction on the district court. That
view is refuted by 18 U.S.C. sec. 3231,
which creates jurisdiction to try charges
framed by federal indictments. We held in
United States v. Martin, 147 F.3d 529,
531-33 (7th Cir. 1998), and have repeated
since, that district judges always have
subject-matter jurisdiction based on any
indictment purporting to charge a
violation of federal criminal law. E.g.,
Hugi v. United States, 164 F.3d 378, 380
(7th Cir. 1999). Whether a particular
indictment is proper is a question that
the judge may decide under the authority
conferred by sec.3231. Just as a civil
plaintiff’s failure to prove his
allegations--or deficiencies that make
the complaint dismissible under Fed. R.
Civ. P. 12(b)(6)--do not deprive a court
ofjurisdiction under 28 U.S.C. sec. 1331
or sec. 1332 unless the complaint is
frivolous, see Crowley Cutlery Co. v.
United States, 849 F.2d 273 (7th Cir.
1988), so errors in a non-frivolous
indictment do not strip the district
court of jurisdiction under sec.3231.
This is why the Supreme Court held in
Johnson v. United States, 520 U.S. 461
(1997), that a conviction may be affirmed
on plain-error analysis if the charge
omits an element and the defendants do
not object before or at trial. Neder v.
United States, 527 U.S. 1, 8-15 (1999),
adds that, even if the defendants do
object, the omission of an element may be
deemed harmless under the usual
harmless-error analysis. Neither Johnson
nor Neder could have been handled that
way if the omission of an element
deprives the district court of
jurisdiction (or is a "structural" error
that cannot be rectified); then the
convictions in both cases should have
been vacated rather than affirmed.
Two appellate courts have asserted that
Apprendi problems affect the district
court’s "jurisdiction" to try a charge or
impose a particular penalty. See United
States v. Cotton, 261 F.3d 397 (4th Cir.
2001); United States v. Gonzalez, 259
F.3d 355 (5th Cir. 2001). These decisions
do not explain why the problem is
jurisdictional. They do not mention
sec.3231, Neder, Johnson, or Martin, so
none carries the power to persuade us to
abandon Nance. (Chief Judge Wilkinson’s
dissent in Cotton relied on Johnson; the
majority elected to ignore his arguments
rather than respond to them.) The only
court that has actually analyzed this
question has held that Apprendi problems
do not affect a district court’s
jurisdiction. See McCoy v. United States,
2001 U.S. App. Lexis 20900 (11th Cir.
Sept. 25, 2001). Other appellate courts
have held that omissions from indictments
affecting maximum punishment under
statutes other than sec.841 are not
jurisdictional in nature. See, e.g.,
United States v. Prentiss, 256 F.3d 971
(10th Cir. 2001) (en banc); United States
v. Mojica-Baez, 229 F.3d 292, 306-12 (1st
Cir. 2000); Prou v. United States, 199
F.3d 37, 42-46 (1st Cir. 1999); United
States v. Baucum, 80 F.3d 539, 543-44
(D.C. Cir. 1996). For the reasons covered
in Martin and similar opinions, these
decisions reach sound conclusions. There
is no jurisdictional problem in today’s
case.
For that matter, we are not persuaded
that Brough should be overruled and the
quantity of drugs declared to be an
"element" of the offense under sec.841.
Brough holds that the elements of the
offense are stated in sec.841(a), and
that the considerations in sec.841(b),
which determine the minimum and maximum
penalties, are not elements. No one (in
this circuit anyway) disputes this
conclusion with respect to minimum
penalties established by sec.841(b). See,
e.g., United States v. Hill, 252 F.3d
919, 921-22 (7th Cir. 2001) (collecting
other decisions). Yet nothing in
sec.841(b) distinguishes minimum from
maximum penalties; if quantities that
determine minimum penalties are not
"elements," then quantities determining
maximum penalties cannot be "elements" of
the offense either.
Before Apprendi this court repeatedly
held that drug types and quantities are
not "elements" of the offense established
by sec.841. See, e.g., United States v.
Edwards, 105 F.3d 1179 (7th Cir. 1997),
affirmed, 523 U.S. 511 (1998); United
States v. Richardson, 130 F.3d 765, 780
(7th Cir. 1997), vacated on other
grounds, 526 U.S. 813 (1999); United
States v. Jackson, 207 F.3d 910, 920-21
(7th Cir. 2000), remanded, 531 U.S. 953
(2000), decision on remand, 236 F.3d 886
(7th Cir. 2001). In Edwards the Supreme
Court endorsed our conclusion that the
judge, rather than the jury, determines
the types and quantities of drugs in
prosecutions under sec.841; this holding
is incompatible with a characterization
of drug type and quantity as elements of
the offense.
Since Edwards the Supreme Court has
added, in Apprendi, that the Due Process
Clause entitles defendants to decision by
the trier of fact, on the
reasonable-doubt standard, of any fact
(other than a prior conviction) that
increases the statutory maximum penalty.
530 U.S. at 490. A case coming from a
state prosecution, Apprendi did not
address the "elements" of sec.841 or any
other federal offense and had nothing to
do with the contents of the indictment.
See 530 U.S. at 477 n.3 (disclaiming any
reliance on, or interpretation of, the
Fifth Amendment’s Indictment Clause).
What Apprendi held--and, we concluded in
Brough, all that Apprendi holds--is that
the Due Process Clause requires the trier
of fact to apply the reasonable-doubt
standard. Apprendi does not rewrite or
change the elements of any federal
offense; it does, however, determine who
must make particular decisions, and what
the burden of persuasion must be.
Apprendi strongly affects how sec.841 is
implemented; as we concluded in Nance and
[United States v.] Westmoreland, [240
F.3d 618, 631-33 (7th Cir. 2001)] a
post-Apprendi indictment should specify,
and the trier of fact must be instructed
to determine, not only the elements of
the offense, which appear in sec.841(a),
but also the events listed in sec.841(b)
on which the prosecutor relies to
establish the maximum sentence.
Brough, 243 F.3d at 1080 (emphasis in
original). This is what other panels of
our court have meant in referring to drug
type and quantity loosely as elements:
this word conveys the thought that drug
type and quantity must be marked as a
subject for the trier of fact under a
reasonable- doubt standard. See, e.g.,
United States v. Watts, 256 F.3d 630, 631
n.2 (7th Cir. 2001); United States v.
Robinson, 250 F.3d 527, 529 (7th Cir.
2001); United States v. Mietus, 237 F.3d
866, 874 (7th Cir. 2001). But this is a
far cry from saying--which none of our
opinions has done--that without an
allegation of drug type and quantity in
the indictment, there is no offense at
all. That’s what real "element" status
means, and that status is one that we
have repeatedly rejected--not only in
Brough but also in Talbott v. Indiana,
226 F.3d 866, 869-70 (7th Cir. 2000),
Hernandez v. United States, 226 F.3d 839
(7th Cir. 2000), and many other cases.
Even the ninth circuit, which in United
States v. Buckland, 259 F.3d 1157 (9th
Cir. 2001), rehearing en banc granted,
2001 U.S. App. Lexis 20432 (Sept. 14,
2001), disagreed with Brough’s holding
that sec.841 as written is
constitutional, agreed with its
conclusion that drug type and quantity is
not an "element" of the sec.841 offense
in the strong sense.
Thus we repeat what was said in Brough,
but now with emphasis: "a post-Apprendi
indictment should specify, and the trier
of fact must be instructed to determine,
not only the elements of the offense,
which appear in sec.841(a), but also the
events listed in sec.841(b) on which the
prosecutor relies to establish the
maximum sentence." In federal practice
the prosecutor and court put an issue
before the jury by including it in the
indictment; thus the "should" clause in
Brough and many other of this court’s
opinions. But only the "must" clause is a
constitutional imperative after Apprendi.
If the indictment does not include type
or quantity, and the defendant does not
object, then review is for plain error
under Nance, and not for any different
standard (such as lack of jurisdiction or
failure to state an offense).
Defendants failed to object to this
indictment in the district court and thus
waived all contentions that could have
been presented before trial--including
any objections to the indictment other
than failure to state an offense. See Fed.
R. Crim. P. 12(b)(2), (f). By pleading
guilty they did not waive the requirement
of Apprendi that drug type and quantity
be determined by the trier of fact beyond
a reasonable doubt (to the extent they
affect the statutory maximum), for
sentencing came after the plea. But at
sentencing these defendants did not make
an Apprendi-like argument and thus
forfeited it, restricting our review to a
search for plain error. None of the
defendants even asserts that he was
responsible for less than 100 kilograms
of marijuana, so, as we concluded at the
beginning of this section, no injustice
has been done and the requirements
forreversal on plain-error review have
not been met. See United States v. Olano,
507 U.S. 725 (1993).
B. Paul Gunderson/Hagen Issue
Paul Gunderson (Gunderson) and Hagen
challenge the enhancement of their
sentences under U.S.S.G. sec.
2D1.1(b)(1). That section provides for a
two-level increase in a defendant’s base
offense level if a dangerous weapon was
possessed in connection with a drug
offense. In applying sec. 2D1.1(b)(1), we
have repeatedly held that "the Government
bears the initial burden of demonstrating
that the defendant possessed a weapon in
a place where drugs were present," and
that "once the Government meets its
burden, the defendant must demonstrate
that it was clearly improbable that the
weapon was connected to the offense."
United States v. Booker, 248 F.3d 683,
689 (7th Cir. 2001). See also United
States v. Tyler, 125 F.3d 1119, 1122 (7th
Cir. 1997). Gunderson and Hagen argue
that in so holding we have impermissibly
placed upon the defendant the burden to
disprove an aggravating sentencing
factor, in violation of due process.
Unfortunately for Gunderson and Hagen,
we have already rejected this argument.
See United States v. Durrive, 902 F.2d
1221, 1230-31 (7th Cir. 1990). Gunderson
and Hagen argue that their argument was
not "squarely presented" in Durrive.
However, in Durrive we characterized the
defendant’s argument as "implying that
section 2D1.1(b)(1) is unconstitutional
because [it] improperly places the burden
on the defendant to show that the
sentencing court should not apply the
enhancement provision," in violation of
due process. In rejecting this argument,
we cited cases from other circuits which
squarely addressed and rejected the very
argument that Gunderson and Hagen raise.
See United States v. Restrepo, 884 F.2d
1294, 1296 (9th Cir. 1989); United States
v. McGhee, 882 F.2d 1095, 1097-99 (6th
Cir. 1989). Moreover, we noted that
Application Note 3 to sec. 2D1.1(b)(1)
(which provides that "[t]he [upward]
adjustment should be applied if the
weapon was present, unless it is clearly
improbable that the weapon was connected
with the offense") merely sets forth an
"exception" to sec. 2D1.1(b)(1), and we
cited Restrepo for the proposition that
the government need only prove that the
weapon was "possessed" during the
offense, and not that it was connected to
the offense. See Durrive, 902 F.2d at
1232.
We see no reason to depart from these
conclusions. Under sec. 3B1.1, the
government bears the burden to prove an
aggravating circumstance--that the
defendant possessed a weapon in a place
where drugs were present. Once it has
done so, the enhancement may (indeed
must) be applied, and it is proper to
require the defendant to bear the burden
of proving the exception recognized in
Application Note 3 in order to avoid the
application of an otherwise properly
supported enhancement. This conclusion is
consistent with the language of
Application Note 3, with due
processprinciples, and with the holdings
of the majority of circuits that have
addressed the issue. See United States v.
Hall, 46 F.3d 62, 63 (11th Cir. 1995);
United States v. Ortiz-Granados, 12 F.3d
39, 41 (5th Cir. 1994); United States v.
Roberts, 980 F.2d 645, 647 (10th Cir.
1992); United States v. Corcimiglia, 967
F.2d 724, 727-28 (1st Cir. 1992);
Restrepo, 884 F.2d at 1296; McGhee, 882
F.2d at 1097-99. But see United States v.
Khang, 904 F.2d 1219, 1221-24 (8th Cir.
1990) (holding that the government bears
the burden under sec. 2D1.1(b)(1) to show
that the weapon was connected to the
offense); United States v. Price, 13 F.3d
711, 733 (3d Cir. 1994) (assuming without
analysis that the government bears the
burden under sec. 2D1.1(b)(1) to
demonstrate that it was not clearly
improbable that the defendant’s gun was
possessed in furtherance of the aims of
the charged conspiracy).
Gunderson and Hagen argue in the
alternative that they have met their
burden to show that it was clearly
improbable that the weapons discovered at
their residences were connected to the
offense. Because the district
court’sconclusion to the contrary is a
factual determination, we review it for
clear error. See United States v. Cain,
155 F.3d 840, 843 (7th Cir. 1998).
We find their argument meritless. In
searching Hagen’s basement (a location
where marijuana had been delivered and
divided), police found $122,640 in cash,
a scale, two handguns, and a clip loaded
with hollow-point bullets. Money was
found in a safe together with the
handguns. Hagen provided affidavits of
two individuals who claimed that they,
not Hagen, owned the guns, and that they
had stored them at Hagen’s residence. One
of the affiants averred that he left the
guns at Hagen’s residence one week before
they were seized. Another stated that he
never saw Hagen touch the gun that he
left at his residence, and that he was
not aware that it was used for illegal
activities. However, the district court
was not required to credit these
affidavits. In addition, even if it is
true that some or all of the guns were
left at Hagen’s residence only one week
before the search, this would not prove
that it is "clearly improbable" that they
were connected to the offense. The
charged offense was conspiracy, and the
conspiracy was ongoing one week before
the search warrant was executed. Further,
Hagen has not presented any evidence
suggesting that he withdrew from the
conspiracy prior to that time. Given that
the guns were found in a residence where
drugs were delivered and handled, that
they were found in close proximity to the
proceeds from the crime, and that drug
paraphernalia was also found in the
house, the court did not clearly err in
awarding the sec. 2D1.1(b)(1) enhancement
to Hagen. See United States v. Brack, 188
F.3d 748, 763 (7th Cir. 1999) (affirming
a sec. 2D1.1(b)(1) enhancement for a
defendant where guns were found at a
"stash house" to which the defendant had
access, even accepting defendant’s claim
that he was merely storing the guns at a
co-conspirator’s request); United States
v. Grimm, 170 F.3d 760, 767 (ruling that
"guns found in close proximity to illegal
drugs are presumptively considered to
have been used in connection with the
drug trafficking offense"); United States
v. Johnson, 227 F.3d 807, 814 (ruling
that "the proximity of a weapon to drug
proceeds provides a sufficient nexus to
conclude that it was not clearly
improbable that the gun was connected
with the offense.") (citation and
internal quotation omitted); United
States v. Cashman, 216 F.3d 582, 588 (7th
Cir. 2000) (affirming enhancement under
sec. 2D1.1(b)(1) where a gun was found in
a motor home together with a scale and
other drug paraphernalia).
For similar reasons, we also uphold the
district court’s application of the sec.
2D1.1(b)(1) enhancement to Gunderson. The
search of Gunderson’s residence (where
marijuana was delivered and repackaged),
uncovered ten one-pound bags of marijuana
and a number of firearms. The only
firearm which was not found in a gun
locker was a shotgun which Gunderson’s
wife testified belonged to another
individual who used it for skeet
shooting. Nevertheless, because the guns
were found in a "stash house" in
proximity to marijuana, the district
court did not commit clear error when it
found that it was not clearly improbable
that these weapons were possessed in
connection with the marijuana conspiracy.
C. Fearing Issue
Fearing challenges the district court’s
enhancement of his sentence under
U.S.S.G. sec. 3B1.1(c) for being a
manager or supervisor. Fearing occupied a
relatively low position in the charged
conspiracy. He was primarily a driver who
retrieved marijuana for Gunderson and
Hagen in Arizona and delivered it to
their respective homes in Minnesota. He
was also held at various times by
marijuana suppliers in Arizona as "human
collateral." At one point, Fearing moved
to Arizona, where he continued to act as
a courier for Gunderson. After the
falling out between Gunderson and Hagen
in 1997, Fearing continued to act as a
courier, this time for Hagen.
In November of 1997, Fearing began a
marijuana operation of his own, which he
ran without the involvement of any of the
principals of the charged conspiracy.
Fearing’s marijuana operation consisted
of four occasions when Fearing provided
financial backing and marijuana contacts
to Wade Stafne for the transportation of
marijuana from Arizona for distribution
in Minnesota. While the PSR characterized
this as "[Fearing’s] own marijuana
operation," it concluded that it was part
of a "common scheme or plan" and part of
the "same course of conduct" as the
offense of conviction. Accordingly,
because Fearing had supervised Stafne in
this peripheral yet related marijuana
operation, the PSR recommended a two-
point increase in his base offense level
under U.S.S.G. sec. 3B1.1(c) for his
"role in the offense as an organizer,
supervisor, or manager."
Fearing’s counsel filed objections to
the PSR’s recommendation, contending that
Fearing and Stafne were equal partners in
their drug operation (i.e., that Fearing
did not "supervise" Stafne), and that it
was inappropriate for the court to apply
the sec. 3B1.1 adjustment in any event
since Fearing’s alleged managerial role
occurred outside of the conspiracy for
which he was charged and convicted. At
Fearing’s sentencing hearing, his counsel
expressly abandoned the first of these
arguments, conceding that Fearing played
a managerial role vis-a-vis Stafne in the
separate marijuana operation, but he
renewed his argument that sec. 3B1.1
should not apply because Fearing did not
play a managerial role in the offense of
conviction. The district court adopted
the factual assertions of the PSR
regarding Fearing’s supervision of
Stafne, and applied the two-level
increase under sec. 3B1.1(c) on that
basis, finding that Fearing "used Mr.
Stafne from time to time, providing him
money as well as contacts," and
"manag[ing] the way in which these trips
would be conducted."
Fearing maintains that the district
court erred in applying the sec. 3B1.1
adjustment, essentially repeating the
argument that he made before the district
court. He concedes that sec. 3B1.1
authorizes a district court to consider
all relevant conduct when determining a
defendant’s role in the offense under
that section. However, he argues that a
court may consider relevant conduct for
this purpose only insofar as it sheds
light on the defendant’s role in the
offense of conviction. In other words,
Fearing contends that a court may not
simply import a defendant’s managerial
role in other relevant conduct to the
offense of conviction (or conclude that
he played a managerial role in the
offense of conviction merely because he
played such a role solely in other
relevant conduct which is independent
from the offense of conviction). Fearing
notes that the expressed purpose of sec.
3B1.1 is to assess a defendant’s
responsibility for the offense relative
to others involved in the offense, and he
maintains that applying the enhancement
strictly on the basis of a defendant’s
role in other relevant conduct leads to
inequitable results which contravene this
purpose. (For example, in this case,
Fearing--who was merely a driver in the
Hendricks/Hagen drug conspiracy--received
a two-level enhancement under sec. 3B1.1,
while Hendricks--a principal in the
conspiracy--did not receive an
enhancement.) Consequently, Fearing urges
us to hold that evidence of a defendant’s
role in other relevant conduct supports
an enhancement under sec. 3B1.1 only when
that conduct is closely associated with
(or "anchored to") the offense of
conviction such that the defendant’s role
in the relevant conduct demonstrates a
greater relative responsibility for the
offense of conviction. Because Fearing’s
supervision of Stafne in the independent
drug operation did not meet this
standard, Fearing asks us to vacate his
sentence and to remand for resentencing.
We are not persuaded. We review a
district court’s finding that an
enhancement under sec. 3B1.1 is warranted
for clear error. See United States v.
Billingsley, 115 F.3d 458, 464 (7th Cir.
1997). However, because Fearing has not
challenged any of the factual findings
which the district court made in support
of its decision to apply the enhancement,
and because his appeal is essentially an
objection to the district court’s
interpretation and application of sec.
3B1.1(c), our review is de novo. See
United States v. Johnson, 227 F.3d 807,
812 (7th Cir. 2000).
Section 3B1.1 provides for an increase
in a defendant’s offense level based upon
his role in the "offense." The Sentencing
Guidelines define "offense" as the
offense of conviction plus all relevant
conduct. See U.S.S.G. sec. 1B1.1,
Application Note 1(l). The text of sec.
3B1.1 reinforces this definition of
"offense" by stating, in the Introductory
Commentary to Part B, that "[t]he
determination of a defendant’s role in
the offense is to be made on the basis of
all conduct within the scope of sec.
1B1.3 (Relevant Conduct), i.e., all
conduct included under sec. 1B1.3(a)(1)-
(4), and not solely on the basis of the
elements and acts cited in the count of
conviction." U.S.S.G. Ch. 3, Part B,
Introductory Commentary. See also United
States v. Baker, 227 F.3d 955, 966 (7th
Cir. 2000). For offenses of a character
for which sec. 3D1.2(d) would require
grouping of multiple counts (such as the
offense of conviction in Fearing’s case),
"relevant conduct" includes all acts or
omissions that are part of the "same
course of conduct" or "common scheme or
plan" as the offense of conviction,
regardless of whether the defendant was
charged with or convicted of carrying out
those acts. See U.S.S.G. sec.
1B1.3(a)(2); United States v. Mumford, 25
F.3d 461, 465 (7th Cir. 1994); United
States v. Rivera, 6 F.3d 431, 445 (7th
Cir. 1993). Pursuant to this provision,
the PSR characterized Fearing’s separate
drug operation as "relevant conduct," and
recommended the sec. 3B1.1 enhancement
based upon his supervision of Stafne in
that operation.
Fearing’s own response to the PSR and to
the government’s position on this issue
has doomed his argument. Fearing’s
counsel did not dispute that his drug
operation was "relevant conduct," and he
expressly conceded that his direction of
Stafne was the kind of activity that
would qualify as "management" or
"supervision" under sec. 3B1.1. Moreover,
Fearing has not argued on appeal that the
district court erred in finding that his
drug operation with Stafne was relevant
conduct or in holding him responsible for
the drug amounts involved in that
operation. Given this, his challenge to
the application of the enhancement cannot
stand. By conceding that he played a
managerial role in relevant conduct,
Fearing conceded that he played a
managerial role in the "offense" as
contemplated by sec. 3B1.1. Therefore, he
conceded the applicability of the
enhancement. Cf. United States v. Flores-
Sandoval, 94 F.3d 346, 349-50 (7th Cir.
1996).
Fearing’s contention that a defendant
cannot receive an enhancement under sec.
3B1.1 strictly for performing a
managerial role in relevant conduct (as
opposed to the offense of conviction)
contradicts the plain language of sec.
3B1.1, and has been rejected by each of
the circuits which have addressed the
question. For example, in United States
v. Ocana, 204 F.3d 585, 591-92 (5th Cir.
2000), the court affirmed an upward
adjustment of the defendant’s sentence
under sec. 3B1.1 based upon her
managerial role in conduct which occurred
after she was convicted of the drug
conspiracy offense of conviction.
Subsequent to her conviction for
conspiracy to possess with intent to
distribute marijuana, the defendant had
recruited and hired others to transport
marijuana to Florida. The court found the
subsequent conduct to be part of the
"same course of conduct" under sec. 1B1.3
(and therefore "relevant conduct")
because it occurred regularly and within
7 months of the offense ofconviction, and
it therefore affirmed the sec. 3B1.1
enhancement based upon her role in the
subsequent conduct even though it
involved different couriers, different
drug sources, and a different modus
operandi. The court ruled that conduct
which is the basis for an upward
adjustment under sec. 3B1.1 must be
"anchored to the transaction," but it
defined "transaction" broadly as
including the post-conviction relevant
conduct at issue. See also United States
v. Ushery, 968 F.2d 575, 582 (6th Cir.
1992) (ruling that a defendant’s
leadership role in a drug enterprise
which was relevant conduct to the cocaine
conspiracy of which he was convicted
"mandated a two-point role in the offense
enhancement under U.S.S.G. sec. 3B1.1 ").
Cf. United States v. Lewis, 79 F.3d 688,
691-92 (7th Cir. 1996); United States v.
Rosnow, 9 F.3d 728, 730-31 (8th Cir.
1993); United States v. Lillard, 929 F.2d
500, 502-03 (9th Cir. 1991).
In addition, we reject Fearing’s
contention that the expressed purpose of
sec. 3B1.1 requires a different
result.Fearing correctly notes that the
purpose of sec. 3B1.1 is to assign
punishment to defendants based upon their
relative degree of responsibility for the
"offense." However, this proposition aids
Fearing’s argument only if the term
"offense" is construed narrowly as
denoting only the offense of conviction,
not including relevant conduct. Since we
have rejected this construction of
"offense," we must also reject Fearing’s
derivative argument from sec. 3B1.1’s
purpose. Because Fearing had a greater
degree of responsibility than at least
one other participant (Stafne) in an
episode of concededly relevant conduct,
he had greater relative responsibility in
the "offense" as contemplated by sec.
3B1.1. Therefore, the application of the
enhancement was entirely consistent with
sec. 3B1.1’s overarching purpose./1
One final point regarding Fearing’s
claim bears mentioning. It is true that a
defendant’s leadership role in
"collateral conduct" will not justify an
enhancement under sec. 3B1.1. See United
States v. Sutera, 933 F.2d 641, 649 (8th
Cir. 1991). However, "relevant conduct"
by definition is not "collateral
conduct." Unfortunately for Fearing,
relevant conduct for the particular
offense of which he was convicted is
defined quite broadly to include not
merely acts committed in furtherance of
the crime, but also acts which merely
bear a certain similarity to the crime
(i.e., acts that are part of the "same
course of conduct" as the offense of
conviction). Nevertheless, not all
criminal conduct will satisfy this
criterion, and the government bears the
burden of proving that the conduct at
issue is relevant conduct and not purely
collateral to the offense. To the extent
that the drug trips which Stafne made for
Fearing were part of a truly separate and
independent conspiracy, they might not
fit the definition of "relevant conduct"
under sec.1B1.3(a)(2)./2 However,
Fearing has waived this argument by
conceding before the district court that
his drug operation with Stafne was
relevant conduct and that the drug
amounts from those trips should be
included in his relevant conduct
calculation, see United States v. Scanga,
225 F.3d 780, 783-84 (7th Cir. 2000);
Flores-Sandoval, 94 F.3d at 349-50, and
by not raising the issue on appeal.
D. Bjorkman Issue
Bjorkman argues that the district court
abused its discretion in denying his
request for substitute counsel. On April
14, 1999, the district court appointed
attorney Jack C. Hoag to represent
Bjorkman, commencing what turned out to
be a less than ideal attorney-client
relationship. After a superceding
indictment was filed and Bjorkman’s trial
date was set for June 28, 1999, Hoag
filed an ex parte motion for leave to
withdraw as Bjorkman’s counsel. In the
motion and in a supporting affidavit,
Hoag stated that he had insufficient time
to prepare for the pending trial and that
he had not yet received "a substantial
amount of information" which he needed to
prepare Bjorkman’s defense. As additional
grounds for the motion, Hoag referred to
Bjorkman’s non-cooperation (including his
refusal to comply with requests on a
number of occasions), and to a "variety
of ethical concerns" which he did not
concretely identify or describe, but
which he claimed "could significantly
impair [his] ability to prepare and
defend Mr. Bjorkman." The court took no
action on this motion.
Four days after Hoag filed the motion,
Bjorkman signed a plea agreement. During
the plea hearing, the court twice asked
Bjorkman whether he was "fully satisfied
with the counsel, representation, and
advice given to you by Mr. Hoag as your
attorney in this matter." Both times,
Bjorkman answered "yes." In addition, the
court informed Bjorkman that the
statutory minimum sentence for the
charged offense was 5 years and the
maximum was 40 years, based on a weight
of marijuana that was more than 100 but
less than 1000 kilograms. Neither the
parties nor the court indicated a
probable guideline range, and the court
informed Bjorkman that only the court
would calculate his sentence under the
guidelines and that it would do so only
after the PSR had been completed and both
sides had an opportunity to comment on
it. The court cautioned Bjorkman not to
rely on the possibility of receiving any
particular sentence, reminding him that
"any guideline computation discussions
that your attorney may have had are not
part of the plea agreement." Bjorkman
indicated that he understood each of
these facts. Also, the court asked
Bjorkman whether he believed that the
plea agreement represented the "entire,
full and complete . . . agreement that
you have with the United States." After
Bjorkman responded affirmatively, the
court asked him if anyone had made "any
other different promise or assurance to
you of any kind in an effort to induce
you to enter a plea of guilty in this
matter." Bjorkman said "no." After
hearing the government’s factual proffer
in support of Bjorkman’s guilty plea, the
court accepted and entered the plea, set
a sentencing date for August 25, 1999,
and ordered preparation of the PSR by
July 26.
On July 30, 1999, Bjorkman wrote a
letter to the court requesting substitute
counsel. In the letter, Bjorkman
complained that Hoag had "withheld
valuable information" from him in
connection with the plea agreement by
erroneously advising him that he would be
classified as a career offender and
sentenced under the career offender
guidelines. Bjorkman maintained that
"[t]his information had a direct baring
[sic] on my guilty plea." Bjorkman
claimed to have discovered the inaccuracy
of Hoag’s advice while speaking with the
probation officer after the PSR was
prepared. Bjorkman further complained
that Hoag had "ceased all contact" with
him and not made himself available for
consultation after the entry of the
guilty plea. (Bjorkman stated that before
the guilty plea, he and Hoag had had "a
minimum of weekly contact.") Neither the
court nor Hoag took any action on
Bjorkman’s request until the August 25,
1999 sentencing hearing.
At the sentencing hearing, the court
asked Bjorkman if he had read the PSR,
the addendum, and the related documents,
including objections to the PSR which
Hoag had filed on Bjorkman’s behalf on
August 6, 1999. Bjorkman responded that
he had read these documents, but had not
discussed them with his attorney. At this
point, Hoag reminded the court of
Bjorkman’s letter requesting substitute
counsel, and the court immediately
convened an ex parte hearing to consider
Bjorkman’s request. During the hearing,
Hoag stated that his communication with
Bjorkman was "virtually nonexistent at
this point," and opined that Bjorkman
would be better served with a new
counsel, "to explore a variety of options
for him." Hoag urged the court to appoint
new counsel "given the communication
between the parties." The court turned to
Bjorkman and asked him for "those
comments which you wish to make." In
response, Bjorkman simply repeated that
he would like a new attorney. The court
retorted that "you don’t change attorneys
like you do socks, Mr. Bjorkman." The
court then indicated that it had received
Bjorkman’s letter of July 30, and
summarized the concerns that Bjorkman had
expressed in the letter regarding Hoag’s
unavailability after the guilty plea and
his "withholding of valuable
information." The court rejected the
former concern, concluding that Hoag’s
preparation of objections to the PSR
evidenced that Bjorkman and Hoag must
have had some extended communications
after the guilty plea. Moreover, the
court dismissed Bjorkman’s claim that he
entered his guilty plea without full
knowledge of his potential exposure under
the guidelines, reminding Bjorkman that
the court told him during the plea
hearing that the applicable guideline
range could not be determined until after
the PSR was prepared, and that he should
not rely on his attorney’s guideline
calculations in entering the plea. The
court then stated that Bjorkman’s request
was denied.
Bjorkman immediately objected, and the
court initially responded that Bjorkman
had not given it any additional reasons
to grant the request, and that he had
remained silent when the court asked for
his input. Nevertheless, the court then
allowed Bjorkman to air further
grievances about Hoag. Bjorkman
complained of a litany of claimed errors
and shortcomings on Hoag’s part. For
example, Bjorkman claimed that Hoag had
done no work on the case, had constantly
implored him to plead guilty (threatening
to withdraw if he insisted on going to
trial), and had wanted Bjorkman to agree
to marijuana amounts that Bjorkman did
not think were accurate, assuring him
that the amounts would not effect his
exposure. Bjorkman concluded by saying "I
want a new attorney. It’s up to my new
attorney to decide if I can change my
plea or not. I don’t know. I’m not--I’m
not saying I want to change my plea. That
would be up to my new attorney."
Repeating its conclusion that Bjorkman
was adequately warned that any guideline
calculations made by the parties before
the entry of the plea were not part of
the plea agreement, the court denied
Bjorkman’s request for substitute
counsel.
The court then granted a temporary
recess, and ordered Bjorkman and Hoag to
discuss the PSR and the related materials
and to inform the court when they were
ready to proceed. The court proclaimed
that, in any event, the sentencing
hearing would take place that afternoon.
Bjorkman and Hoag conferred for
approximately 35 minutes, after which the
sentencing hearing was reconvened.
Bjorkman informed the court that he had
read all of the sentencing documents and
discussed them with Hoag. Hoag then
outlined the arguments that he planned to
make on Bjorkman’s behalf, including
objections to the PSR’s calculations as
to drug amounts included as relevant
conduct, and various other arguments.
Bjorkman acknowledged that he understood
these challenges and indicated that there
were no others that he wished to raise
aside from those outlined in his written
objections to the PSR. A full sentencing
hearing was then conducted, during which
the government put on three witnesses,
and Bjorkman and his wife testified on
his behalf.
If the defendant has been given an
opportunity to explain to the court the
reasons behind his request for substitute
counsel, we review the denial of that
request only for an abuse of discretion.
See United States v. Golden, 102 F.3d
936, 940 (7th Cir. 1996). Here, the
district court conducted an ex parte
hearing to address Bjorkman’s concerns
regarding Hoag, during which Bjorkman was
given an opportunity to discuss each of
his reasons for seeking substitute
counsel. See id. at 940-41. Therefore,
our review is for abuse of discretion.
In determining whether the district
court abused its discretion in denying a
motion for substitute counsel, we
consider the following three non-
exhaustive factors: (1) the timeliness of
the motion; (2) the adequacy of the
court’s inquiry into the defendant’s
motion; (3) whether the conflict was so
great that it resulted in a total lack of
communication preventing an adequate
defense. See id. at 941; United States v.
Zillges, 978 F.2d 369, 372 (7th Cir.
1992). If we find an abuse of discretion,
we will nevertheless uphold the district
court’s decision unless the defendant
establishes that he was deprived of his
Sixth Amendment right to effective
assistance of counsel. See Zillges, 978
F.2d at 372-73. Bjorkman sent a letter to
the court requesting substitute counsel
after he pled guilty, approximately three
weeks before the scheduled sentencing
hearing. We have held that a defendant’s
request for substitute counsel was
untimely where the court received the
defendant’s letter after the defendant
had formally pled guilty and ten days
before the sentencing hearing. See United
States v. Hall, 35 F.3d 310, 313-14 (7th
Cir. 1994) (affirming the district
court’s finding that "[the defendant’s]
efforts here appear to the court to be an
effort to derail the sentencing that was
fast approaching at the time he sent this
letter."). Bjorkman’s case is somewhat
distinguishable from Hall, however, in
that the asserted grounds for Bjorkman’s
request concerned conduct by his attorney
which either occurred after the plea
hearing or which (he argues) could not
reasonably have been discovered before
the PSR was completed, and he made his
request immediately after reviewing the
newly composed PSR. Nevertheless, it is
not clear whether these facts will
suffice to make Bjorkman’s request for
substitution of counsel timely, given
that we have never found such a request
timely when it was made after the entry
of a guilty plea and shortly before
sentencing, and given that we rejected
Hall’s request as untimely when at least
one of his grievances involved the manner
in which the PSR was prepared. See Hall,
35 F.3d at 312-14.
However, we need not decide this close
question, because even if we were to find
Bjorkman’s request timely, a
consideration of the remaining two
factors convinces us that the district
court did not abuse its discretion in
denying it. First, the district court’s
inquiry into Bjorkman’s motion was
adequate. Before conducting a hearing on
the matter, the district court had
received and read Bjorkman’s letter which
expressed his grievances concerning Hoag
in some detail. Thus even without the
hearing the court may well have been
sufficiently apprised of the nature of
Bjorkman’s complaints to rule on his
request. See Hall, 35 F.3d at 313.
Regardless, the ex parte hearing removes
any doubt on the matter. After hearing
Hoag’s views on the issue, the court
asked Bjorkman for "those comments which
you wish to make." Bjorkman initially
declined to add anything of substance,
but when he objected to the district
court’s initial denial of his request,
the court gave him another opportunity to
speak. Bjorkman then spoke at length,
fully expressing each of his concerns
regarding Hoag’s representation. The
court did not interrupt Bjorkman at any
point, and when he finished the court
asked him if had anything further to say,
proceeding to address the merits of
Bjorkman’s request only after Bjorkman
said that he did not. The court’s
subsequent analysis reveals that it
listened to Bjorkman’s concerns, and
responded thoughtfully and appropriately.
In short, the court "engage[d] in an
inquiry as to the reasons for the
defendant’s dissatisfaction with his
attorney," see Zillges, 978 F.2d at 372
(quotation and citation omitted), and it
did not merely seek either to "elicit a
general expression of satisfaction," see
id., or to dismiss the matter in a
conclusory fashion.
In addition, the record supports the
district court’s conclusion that Bjorkman
and Hoag’s relationship had not
deteriorated to the point that there was
a "total lack of communication preventing
an adequate defense." See Hall, 35 F.3d
at 314. By the time of the ex parte
hearing, Hoag had prepared and filed
extensive objections to several of the
PSR’s sentencing recommendations. The
court quite reasonably took this as
strong evidence that, notwithstanding
their protestations to the contrary,
Bjorkman and Hoag were able to
communicate sufficiently to present an
adequate defense, even after the plea
hearing. Also, during the plea hearing,
Bjorkman stated under oath that he was
fully satisfied with Hoag’s
representation, belying his subsequent
claims that Hoag did nothing to prepare
from the start of the case. Finally,
after the court denied Bjorkman’s request
and ordered him to discuss the sentencing
documents with Hoag, Bjorkman apparently
had little difficulty communicating with
Hoag. The two discussed the documents and
returned to the courtroom, whereupon
Bjorkman stated that he had discussed the
documents with Hoag and assented to
Hoag’s characterization of the challenges
that he would be raising to the PSR. Hoag
proceeded to conduct a vigorous
sentencing presentation on Bjorkman’s
behalf, examining witnesses and cross-
examining the government’s witnesses. See
United States v. Brown, 79 F.3d 1499,
1507 (7th Cir. 1996). Neither Hoag nor
Bjorkman complained further regarding
their claimed inability to communicate.
Bjorkman asserts that none of this
matters, because the complaint that he
raised during the ex parte hearing had
nothing to do with Hoag’s ability to
conduct an adequate defense during the
sentencing phase; rather, he objected
that the bad advice that Hoag had given
him regarding the relative benefits of
pleading guilty versus going to
trialrendered Hoag unable to counsel him
effectively regarding the possibility of
withdrawing his guilty plea./3 Bjorkman
claimed that Hoag had told him that he
stood exposed to much higher penalties
than later suggested by the PSR, and that
he pleaded guilty to minimize losses
grossly overestimated by his attorney.
Bjorkman correctly notes that an
attorney’s errors in describing the
consequences of conviction might justify
the withdrawal of a guilty plea based
upon the erroneous advice. See United
States v. Teller, 762 F.2d 569, 578 (7th
Cir. 1985) (citing Hammond v. United
States, 528 F.2d 15, 18-19 (4th Cir.
1975) (holding that a defendant’s guilty
plea was involuntary where his counsel
erroneously advised him that if he did
not plead he could be sentenced to a
maximum 90-95 year sentence, when the law
actually prescribed a maximum of only 55
years)); Cooks v. United States, 461 F.2d
530, 532 (5th Cir. 1972) (vacating a
defendant’s plea based on his counsel’s
"patently erroneous" advice that if he
did not plead he would be subject to a
sentence six times more severe than the
law actually allowed). Further, Bjorkman
notes that a motion to withdraw his plea
would be based on the argument that Hoag
rendered ineffective assistance in
overstating his exposure, and therefore
that Hoag could not possibly provide
effective, conflict-free advice regarding
whether or not such a motion should be
made. Therefore, Bjorkman argues that
there was a conflict between he and Hoag
which interfered with his ability to
conduct a defense, wholly apart from
Hoag’s ability to mount a competent
challenge to the government’s sentencing
arguments. Under these circumstances,
Hoag argues that the district court
abused its discretion in denying his
request for a substitute counsel to help
him evaluate his options.
We are not persuaded. First, Bjorkman
did not move to vacate his plea, nor did
he even argue that he would not have pled
guilty if it were not for Hoag’s
erroneous advice. (Indeed, he did not
even tell the district court what Hoag
told him regarding his exposure; he
merely said that Hoag had erroneously
told him that he would be sentenced as a
career offender, and that this had a
"direct bearing" on his guilty plea).
Further, although he claimed that Hoag
misinformed him, Bjorkman did not claim
that Hoag had failed to render good-faith
advice regarding his exposure. Therefore,
based upon the information he presented
to the district court, Bjorkman could not
establish that he had a non-frivolous
claim for the withdrawal of his plea
based upon ineffective assistance of
counsel. See Bridgeman v. United States,
229 F.3d 589, 592 (7th Cir. 2000) (ruling
that "to demonstrate prejudice arising
from a guilty plea allegedly rendered
involuntary by counsel’s deficient
performance, a petitioner must establish
that counsel’s performance was
objectively unreasonable and that, but
for counsel’s erroneous advice, he would
not have pleaded guilty."); Gargano v.
United States, 852 F.2d 886, 891 (7th
Cir. 1998) (holding that defendant failed
to establish prejudice when he failed to
claim that he would have pleaded
differently and insisted on going to
trial but for his counsel’s bad advice);
United States v. Barnes, 83 F.3d 934,
939-40 (7th Cir. 1996) (holding that
counsel was not ineffective in advising
defendant about the consequences of
pleading guilty, despite failing to
recognize that the defendant would be
sentenced as a career offender under the
guidelines, where nothing in the trial
record proved that he did not undertake a
good-faith investigation of the facts
relevant to the defendant’s sentencing).
Moreover, regardless of what Hoag may
have told Bjorkman before the plea,
Bjorkman was told both in the plea
agreement and by the district court
during the plea colloquy that the
statutory maximum for the charged offense
was 40 years. The fact that Bjorkman
neither refused to enter his plea nor
voiced any objection when confronted with
this information precludes him from
arguing that he pled guilty in reliance
upon some alternative characterization of
his exposure given to him by his counsel.
Cf. United States v. Martinez, III, 169
F.3d 1049, 1053-54 (7th Cir. 1999);
United States v. Rice, 116 F.3d 267, 268-
69 (7th Cir. 1997); United States v.
Westcott, 159 F.3d 107, 112-114 (2d Cir.
1998). Further, in response to the
court’s questions during the plea
colloquy, Bjorkman indicated under oath
that he understood that his lawyer’s
guideline predictions were not part of
the plea agreement, and that the district
court (and only the district court) would
determine the applicable guideline range
after the PSR was prepared. While these
questions were meant to inform Bjorkman
of the consequences of pleading guilty
(as opposed to the consequences of being
convicted after going to trial), they
should have put him on notice of the fact
that predicting the guideline range under
which he would be sentenced is an
uncertain art, and that no guideline
prediction by his attorney was ironclad.
Cf. Barnes, 83 F.3d at 940. This
conclusion is reinforced by Bjorkman’s
statement under oath that no one had made
any promises or assurances to induce him
to plead guilty. Given the limited
information presented to it on this
issue, the district court did not abuse
its discretion in refusing to credit the
theory that Hoag’s error induced Bjorkman
to plead guilty, creating a conflict
which rendered Hoag incapable of
presenting an adequate defense.
Therefore, we affirm the court’s denial
of Bjorkman’s request.
CONCLUSION
We have considered the other arguments
raised by each of the appellants and find
them meritless. Therefore we AFFIRM the
appellants’ sentences, the denial of
Bjorkman’s motion for substitution of
counsel, and the fine imposed on Hagen.
FOOTNOTES
/1 We also reject Fearing’s contention that because
Hendricks--a "bigger fish" in the offense of
conviction--did not receive an enhancement under
sec. 3B1.1, it was inappropriate for Fearing to
have received one. We have ruled repeatedly that
if a court sentences a defendant in accordance
with the guidelines, "we will not disturb [the]
sentence because another defendant was treated
differently." United States v. McClinton, 135
F.3d 1178, 1192 (7th Cir. 1998).
/2 Without deciding the matter, we note that this
conclusion strikes us as rather unlikely, given
that this "independent" drug operation occurred
while the conspiracy of conviction was ongoing,
and that it involved two members of that conspir-
acy acquiring marijuana from the same drug sourc-
es and transporting it to the same location via
a similar modus operandi. Thus it fits the defi-
nition of "same course of conduct" more readily
than does the Ocana defendant’s post-conviction
conduct.
/3 Bjorkman also argues that Hoag rendered prejudi-
cial ineffective assistance by failing to argue
that the weight of marijuana for which Bjorkman
was to be held responsible was an element of the
offense which must be alleged in the indictment,
and that a sentence may be imposed only for the
crime alleged in the indictment (and by failing
to press for a lower sentence given the omission
of this information from the indictment). Howev-
er, as Bjorkman did not raise this argument
before the district court during the ex parte
hearing, we cannot address it here.