United States v. Best, Jason ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1324
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON BEST, a/k/a JBOO,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 00 CR 171(1)—Rudy Lozano, Judge.
ARGUED APRIL 6, 2005—DECIDED OCTOBER 24, 2005
Before BAUER, RIPPLE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. After a few false starts with
appointed counsel, Jason Best decided that he wanted to
represent himself at his trial on federal drug charges. The
district court permitted him to do so, after warning him of
the difficulties he faced and finding that his waiver of
counsel was knowing and intelligent. Best began his trial
acting as his own advocate. On the morning of the second
day, however, he changed his mind and asked the court to
reinstate his attorneys; the court did so. The jury went on
to convict Best of one count of conspiracy to distribute more
than 50 grams of crack cocaine in violation of 21 U.S.C. §
846, two counts of possession with intent to distribute crack
cocaine in violation of 21 U.S.C. § 841(a)(1), and two counts
2 No. 04-1324
of maintaining a place for distribution of crack cocaine in
violation of 21 U.S.C. § 856(a)(1). The court sentenced Best
to life imprisonment.
In this appeal, Best attacks the court’s initial acquies-
cence in his motion to waive his right to counsel, as well as
the court’s decision to continue with prior counsel for the
balance of the trial and sentencing. Best also argues that he
is entitled to be resentenced, because his sentence violates
the principles announced in the Supreme Court’s decisions
in Blakely v. Washington, 124 S.Ct. 2531 (2004) (which had
been decided by the time his opening brief was filed) and
United States v. Booker, 125 S.Ct. 738 (2005) (which
appeared prior to oral argument). We affirm Best’s convic-
tion and order a limited remand of Best’s sentence under
the terms set forth in United States v. Paladino, 401 F.3d
471, 483-84 (7th Cir. 2005), for a determination whether the
district court would impose a different sentence under the
now-advisory Guidelines.
I
Best was involved in a crack cocaine distribution opera-
tion in Gary, Indiana, from 1997 to 2000. He ran at least six
drug houses, supplying crack and marijuana, hiring and
paying dealers, scheduling work shifts, and picking up the
profits at the various locations. In 1997, the Gary Response
Investigative Team (GRIT), a federal drug task force that
included Gary police officers, began investigating drug
activity in the Bronx area of Gary. GRIT arranged for
several controlled buys at various drug houses. As a result
of these buys, the police arrested several of Best’s associ-
ates, who agreed to cooperate in the government’s investiga-
tion.
On November 9, 1997, three police officers followed Juble
Hairston, a suspected drug dealer, to 532 Hovey Street.
Hairston entered the house and shut the door. The officers
No. 04-1324 3
knocked and asked to enter the home. After a few minutes,
Best’s cousin opened the door and let the officers in. Upon
their entry, the agents found seven to eight men including
Best and Hairston. They also found crack cocaine, a scale,
beakers, and plastic bags. After conducting a protective
sweep of the home, they recovered two shotguns, three
handguns, and an assault rifle. The agents also found
$1,293 in Best’s pocket.
On November 21, 1997, the GRIT officers spotted Garrett
Smith, who they knew had an outstanding murder warrant,
on the porch at 532 Hovey Street. Smith retreated into the
home. Fearing for the occupants’ safety, the agents followed
him, forcing entry. There they found 35.7 grams of crack,
ammunition, scales, and plastic bags. Best was once again
on the scene, this time with $1,500 in his pocket. According
to the testimony of Best’s accomplices, Best then moved his
operations to various other locations in Gary including 1536
Jackson Street and 798 Porter Street.
On October 17, 2000, a grand jury indicted Best along
with five other individuals for their involvement in distrib-
uting and selling crack cocaine. The court appointed Clark
W. Holesinger to represent Best. On January 19, 2001, a
superseding indictment charged Best with nine counts
related to his drug activities, one count for murder during
the course of the drug conspiracy in violation of 18 U.S.C.
§§ 924(j) and 924(c)(1), and one count for being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). At that point, the court appointed co-counsel
for Best, attorney Gary S. Germann. By February Best had
grown dissatisfied with his counsel. He wrote a letter to
Judge Lozano requesting the appointment of new counsel.
But on February 14, 2001, Magistrate Judge Rodovich held
a hearing at which Best indicated that he was pleased with
Holesinger; Judge Rodovich accordingly denied Best’s
motion. Tensions evidently continued, however. On Septem-
ber 25, 2001, Germann moved to withdraw from represent-
4 No. 04-1324
ing Best. The court granted his motion and appointed
Thomas W. Vanes to replace him. Shortly thereafter, the
government filed notice that it intended to seek the death
penalty on the murder count. Judge Lozano reset the date
for Best’s trial for April 2002.
On November 26, 2001, Best sent another letter to Judge
Lozano complaining that Holesinger was afraid of the
prosecutor and that his counsel was not listening to him.
Best indicated that he wanted to represent himself with the
help of Vanes or have the court appoint an attorney from
outside the area to represent him. On December 6, 2001,
Judge Rodovich held another hearing on the matter, and
once again, Best stated that he was satisfied with
Holesinger’s representation.
The court set March 1, 2002, as the deadline for all pre-
trial motions. Best’s lawyers failed to get their motions in
on time. They did, however, file a motion to sever the
murder and felon-in-possession counts from his drug
charges, which the court granted on May 28, 2002. At the
same time, it set July 15, 2002, as the start date for the
trial on the drug charges. On June 21, 2002, less than a
month before the trial was scheduled to begin, counsel
asked for leave to file late motions to suppress on Best’s
drug charges. The reason they gave for their tardiness was
their preoccupation with Best’s death penalty charge, which
they had successfully managed to sever from the drug case
just a few weeks earlier. Judge Lozano denied their motion.
On July 12, 2002, Best sent another letter to Judge
Lozano indicating that he wished to proceed pro se. Just
before trial was to start on the 15th, Judge Lozano himself
held a hearing on Best’s renewed request. At the hearing,
Judge Lozano asked about Best’s legal knowledge and
skills. He specifically quizzed Best on his knowledge of the
Federal Rules of Evidence, the Federal Rules of Criminal
Procedure, the Federal Sentencing Guidelines, and the law.
No. 04-1324 5
In addition, he repeatedly warned Best of the dangers of
self-representation and the exposure he faced on his
upcoming death penalty trial. Before accepting Best’s
waiver, he warned:
Mr. Best, I must advise you that, in my opinion, you
would be far better defended by a trained lawyer who is
accredited by a State Bar Association and by the state
itself, than you could be by defending yourself. I think
that it is unwise for you to try to represent yourself.
You are not familiar with the law sufficient [sic] to
defend yourself. You are not familiar with the Court’s
procedures sufficient [sic] to defend yourself. You are
not familiar with the Rules of Evidence sufficient [sic]
to defend yourself. I would strongly urge you not to try
to represent yourself.
The judge then asked whether Best was making his deci-
sion “entirely voluntarily and knowingly.” After Best
repeatedly responded that he understood the implications
of his decision, the court found that Best “knowingly and
voluntarily waived his right to counsel” and permitted Best
to represent himself. It then appointed Holesinger and
Vanes to serve as standby counsel.
Best quickly became disillusioned with self-representa-
tion. He handled the case only during the selection of the
jury and the first day of trial. On the morning of the second
day, he asked the court to reinstate Vanes and Holesinger.
Unenthusiastic, the two lawyers immediately filed a motion
to withdraw and a motion for a mistrial. Vanes explained
that the restraints that the court had imposed on them in
their role as standby counsel had made effective representa-
tion impossible. They also complained that the first day of
trial had irreversibly harmed Best’s case in a number of
ways: the government had introduced evidence about the
November 9, 1997, search of 532 Hovey Street despite the
fact that the court had sustained Best’s objection based on
6 No. 04-1324
the lack of a search warrant; GRIT supervisor Mark Becker
was permitted to testify that GRIT was involved in drug
and gang investigations; and Best failed to object when
Gary Police Officer Troy Campbell testified that a certain
exhibit was an accurate copy of Best’s parole ID card with
the exception of certain redactions, which was a veiled
reference to Best’s criminal history. Notwithstanding both
the lawyers’ objections and Best’s, the court reinstated
Vanes and Holesinger as Best’s counsel and proceeded with
the trial. On July 23, 2002, the jury convicted Best on five
of the seven counts.
On August 26, 2002, Best filed a pro se motion for a new
trial, claiming that Vanes and Holesinger had rendered
ineffective assistance of counsel. Best complained that they
had failed to investigate and call witnesses whom Best had
identified; they had failed to file timely motions to suppress;
and they had failed to object to the indictment, jury instruc-
tions, and verdict form for not including a specific drug
quantity. Judge Lozano held a hearing on August 30, 2002,
at which he inquired into Best’s allegations. Holesinger and
Vanes offered strategic reasons for most of the decisions
Best had mentioned. For example, they did not call the
witnesses that Best had named because they thought it was
a bad idea to have individuals who were incarcerated
testifying on his behalf. Their defense strategy was instead
to try to impeach the government’s witnesses, who were all
incarcerated, many in the same location. Best’s lawyers
hoped to show that the government’s witnesses had con-
cocted stories against Best. They admitted, however, that
Juble Hairston and Garrett Smith could have served as
witnesses for the motions to suppress had they filed timely
motions.
On September 6, 2002, the court ordered counsel to file
post-trial motions to suppress. On September 11, Vanes and
Holesinger filed a second motion to withdraw, claiming that
No. 04-1324 7
their testimony at the August 30 hearing created an
irreconcilable conflict with Best. On October 3, 2002, after
another hearing, the court concluded that counsel could
continue to represent Best adequately. The suppression
hearing took place on November 1 and 15, 2002; a year
later, on November 26, 2003, the court denied those mo-
tions.
On December 1, 2003, the court held Best’s sentencing
hearing. Best complained to the court again about his
lawyers and asked the court to appoint substitute counsel.
The court refused, instead giving Best the choice of proceed-
ing pro se or staying with Vanes and Holesinger. Best
decided to proceed with them, although he felt that the
court had put him to an unfair choice. The court imposed a
life sentence on Count One, 240 months’ imprisonment on
Count Two, 480 months on Count Three, and 240 months
each on Counts Seven and Eight, with all terms to be
served concurrently.
II
We begin with Best’s claims about his representation at
trial, which relate to the court’s initial decision to allow him
to represent himself, the effectiveness of appointed counsel
at the trial stage, and the court’s refusal to appoint substi-
tute counsel for the sentencing hearing.
The Supreme Court has held that a defendant has the
right under the Sixth Amendment to waive his right to
counsel and proceed pro se. Faretta v. California, 422 U.S.
806, 819 (1975). Nonetheless, a defendant is normally ill-
advised to avail himself of that right, given how difficult it
is to face an experienced prosecutor and navigate the
complexities of both criminal procedure and criminal law.
“Because of the importance of the right to counsel in our
constitutional scheme, we do not lightly conclude that a
defendant has waived his right to counsel. Accordingly, we
8 No. 04-1324
will indulge every reasonable presumption against the
waiver.” United States v. Sandles, 23 F.3d 1121, 1125-26
(7th Cir. 1994) (internal citations and quotation marks
omitted). In the end, however, we must uphold a defen-
dant’s waiver of counsel if it was knowing and intelligent.
Id. at 1126.
In reviewing whether a criminal defendant’s waiver of the
right to counsel was knowing and intelligent, we consider
four factors: “(1) whether and to what extent the district
judge conducted a formal inquiry; (2) other evidence in the
record that establishes whether the defendant in fact
understood the dangers and disadvantages of
self-representation; (3) the background and experience of
the defendant; and (4) the context of the defendant’s
decision to proceed pro se.” Sandles, 23 F.3d at 1126. See
also United States v. Egwaoje, 335 F.3d 579, 585 (7th Cir.
2003).
Here, the first factor—whether the court conducted a
formal inquiry into Best’s waiver—points strongly toward
a finding that the waiver was knowing and intelligent. The
district judge carefully followed the model inquiry from the
Benchbook for U.S. District Court Judges (4th ed. 1996,
with 2000 rev.), as he conducted the required inquiry.
Although this court has held that it is not strictly necessary
to follow the Benchbook, see Egwaoje, 335 F.3d at 585(affirming our holding in United States v. Moya-Gomez, 860
F.2d 706, 732-33 (7th Cir. 1988), and rejecting a rule
compelling the adoption of the model inquiry set forth in
the federal Benchbook), it was certainly a sound approach
for the judge to take. Compare United States v. McDowell,
814 F.2d 245, 249-50 (6th Cir. 1987) (requiring that district
courts use the model inquiry or “one covering the same
substantive points” on the record to determine whether a
defendant’s waiver is knowing and intelligent).
At the July 15, 2002, hearing, Judge Lozano asked Best
No. 04-1324 9
specific questions about his knowledge of the law, the
Federal Rules of Evidence, the Federal Rules of Criminal
Procedure, and the federal Sentencing Guidelines. He also
warned Best about ways in which his first trial might
implicate his second trial, in which the government was
seeking the death penalty. For example, he pointed out that
“in your questioning you might by accident acknowledge
something that you may not want to acknowledge, or the
witness may say something in which you have not been able
to cross-examine properly, and you will be stuck with that
answer.”
Best now argues that the court’s inquiry was inadequate
because it failed to explore his educational background, and
if it had done so, it would have learned that he had only a
GED. But this one omission by the court does not automati-
cally render the inquiry insufficient. Taken as a whole, the
record shows that the court’s inquiry into Best’s knowledge
and decision to waive his right to counsel was more than
adequate. See also United States v. Bell, 901 F.2d 574, 579
(7th Cir. 1990) (finding that the defendant knowingly and
intelligently waived his right to counsel even though the
magistrate’s warnings on the dangers of self-representation
were inadequate).
The second factor we evaluate is whether the defendant
understood the danger and disadvantage of self-representa-
tion. In other cases we have found that a defendant’s
admission of lack of legal expertise, along with evidence
that former counsel warned the defendant of the “pitfalls of
self-representation” and “obvious reliance on standby
counsel during trial,” are factors that weighed in favor of
finding waiver. Sandles, 23 F.3d at 1128. Several of those
factors exist here.
Best relied on his standby counsel during jury selection
and in presenting a challenge to the venire. He mentioned
that he did not prepare the motion to quash the petit jury
10 No. 04-1324
venire. At that point, however, the court warned Best that
it would not allow “hybrid representation” and again
warned Best of the “drawbacks” of self-representation. After
a brief recess for Best to meet with his standby counsel,
Best decided to remain pro se. During the first day of trial,
Best made several statements to the jury that almost
bragged about his lack of legal skill. In his opening state-
ment, Best announced:
This ain’t my bag. He’s a prosecutor, he’s trained to try
trials. This is my first time ever. I don’t even basically
know what to say, but I have two great attorneys over
there, but this is so—I feel it’s so simple—it’s so compli-
cated that it’s simple. My attorneys don’t know.
Best went so far as to request a cautionary instruction
telling the jury not to hold his self-representation against
him. Finally, of course, by the morning of the second day of
trial Best asked the court whether it was “possible [for him]
to go back to [his] attorneys.” We find that the second factor
also weighs in favor of finding that Best understood the risk
he faced in representing himself.
Next, we consider Best’s background and experience
including “educational achievements, prior experience with
the legal system (including prior pro se representation), and
performance at trial in the case at bar.” Sandles, 23 F.3d at
1128. The court inquired into Best’s legal education, but it
did not investigate his general education level. It now
appears that Best has a GED, no college education, and a
legal education limited to 18 months of study with jailhouse
lawyers while he was incarcerated at the MCC. He had
never represented himself in a prior legal proceeding.
Best did not do well while he was representing himself, as
his lawyers pointed out when they moved to withdraw
rather than be reinstated as counsel. He did not raise
important objections to Officer Campbell’s testimony about
No. 04-1324 11
Best’s parole ID card, Officer Becker’s reference to gang
activity, and he allowed the government to proceed through
a sustained objection on a Fourth Amendment violation.
The combination of his lack of experience representing
himself, his relatively limited educational background and
knowledge of the law, and whatever hindsight we legiti-
mately can glean from his actual performance at trial weigh
against finding that he knowingly and intelligently waived
his right to the assistance of counsel.
Finally, the context of Best’s decision to proceed pro se is
important. Best appears to have been a difficult client; at
the very least, it is clear that he had a contentious relation-
ship with his lawyers for virtually the entire duration of the
proceeding. While Best’s position was not always consistent,
he repeatedly complained about their representation of him
and requested the court to appoint new counsel for him. The
district judge was in a better position to evaluate Best’s
motives than we are. The judge’s conclusion that Best had
knowingly and intelligently opted for the lesser of two
evils—self-representation as opposed to the lawyers he so
disliked—was a reasonable one. Evaluating this record as
a whole, we find that it demonstrates Best’s knowing and
intelligent waiver.
III
Next, Best contends that he received ineffective assis-
tance of counsel at both the guilt phase and the sentencing
phase of the trial. We consider first his arguments relating
to the guilt phase, and then his sentencing arguments
relating to the assistance of counsel.
A
At the guilt phase, Best’s lawyers presented only one
testifying witness on his behalf, and they failed to investi-
12 No. 04-1324
gate other witnesses Best identified for them, particularly
a number who were present during the raids on the alleged
drug houses.
Normally, we do not review ineffective assistance of
counsel claims on direct review. There is an exception to
that rule, however, for cases in which the defendant’s claim
“can be fully evaluated only on the record below, [ ] and not
extrinsic evidence.” United States v. Holman, 314 F.3d 837,
839 (7th Cir. 2002). Here, the district court permitted a full
post-trial hearing on the question whether Best’s lawyers
were ineffective, in response to his pro se motion for new
trial. This is therefore the exceptional case where the record
permits us to reach the question now.
Under the familiar Strickland standard, Best must show
that his counsels’ performance was deficient and that the
deficient performance resulted in prejudice. Strickland v.
Washington, 466 U.S. 668, 688, 692 (1984). We review those
two questions de novo. Holman, 314 F.3d at 839. To estab-
lish that counsels’ performance was deficient, Best must
show that it fell below an “objective standard of reasonable-
ness.” Strickland, 466 U.S. at 688. “Our review of the
attorney’s performance is highly deferential and reflects a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under
the circumstances, the challenged action might be consid-
ered sound trial strategy.” Davis v. Lambert, 388 F.3d 1052,
1059 (7th Cir. 2004) (quoting Strickland, 466 U.S. at 689(internal quotation marks omitted)). To establish prejudice,
the defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to under-
mine confidence in the outcome.” Strickland, 466 U.S. at
694.
No. 04-1324 13
A lawyer’s failure to investigate potential defenses may
constitute deficient performance under Strickland. See
Strickland, 466 U.S. at 691; see also Lambert, 388 F.3d at
1062 (holding that petitioner’s claim that defense counsel
failed to investigate witnesses met the performance element
of Strickland); Washington v. Smith, 219 F.3d 620, 630-31
(7th Cir. 2000) (finding defense counsel’s investigation of
one of fourteen witnesses satisfied the performance element
for an ineffective assistance of counsel claim). Nevertheless,
as we have recognized, “[a] lawyer’s decision to call or not
to call a witness is a strategic decision generally not subject
to review. The Constitution does not oblige counsel to
present each and every witness that is suggested to him.”
United States v. Williams, 106 F.3d 1362, 1367 (7th Cir.
1997) (internal citation and quotation marks omitted). If
counsel has investigated witnesses and consciously decided
not to call them, the decision is probably strategic. An
outright failure to investigate witnesses, however, is more
likely to be a sign of deficient performance. See Rompilla v.
Beard, 125 S.Ct. 2456, 2466 (2005) (“It is the duty of the
lawyer to conduct a prompt investigation of the circum-
stances of the case and to explore all avenues leading to
facts relevant to the merits of the case and the penalty in
the event of conviction.”) (quoting 1 ABA Standards for
Criminal Justice 4-4.1 (2d ed. 1982 supp.)). Whether
deficient performance occurred, however, depends on factors
like counsel’s overall diligence, the likely relevance of the
witness’s testimony, whether alternative ways of proving
the point exist, and the strength of the government’s case.
Compare Washington, 219 F.3d at 630-32 (finding that
failure to investigate or call witnesses where “[counsel]
admitted that he did no investigating because of the ‘late
date’ and because he was ‘busy trying the case’ ” was
deficient and prejudicial) with Williams, 106 F.3d at 1367(in a felon-in-possession case, counsel’s failure to call alibi
witnesses where the government had proved each element
of the crime was not deficient performance).
14 No. 04-1324
Best provided a list of names of all the individuals who
were present during the two raids at the house on Hovey
Street and were allegedly part of the crack distribution
ring. Best’s lawyers testified that they attempted to contact
the witnesses, but only one responded, Garrett Smith.
Moreover, counsel did not receive the names from Best until
after the time for filing motions to suppress had expired.
When they met with Smith, he told them in the presence of
his counsel that he would testify that the police had no idea
who he was. Instead, he said, when the police arrived at 532
Hovey Street on November 21, 1997, they came with dogs
and arrested everyone in the home and only later learned
of Smith’s identity and his arrest warrant. This testimony
would have conflicted with testimony from the police
officers that they had followed Smith into the home because
they knew there was a murder warrant out for his arrest,
and this was enough to support the conclusion that exigent
circumstances permitted them to enter the home.
Under the circumstances, Holesinger explained, he and
Vanes concluded that Smith would not be a useful witness
for Best at the trial, even if he could have helped with the
motion to suppress. They believed that the jury would not
“appreciate necessarily the niceties of Fourth Amendment
litigation.” Furthermore, nothing Smith was prepared to
say would have cast any doubt on Best’s connection to the
drugs and money found at the house. With this in mind,
they made the strategic decision not to call Smith at Best’s
trial.
Holesinger also testified that Juble Hairston was “first
and foremost a potential witness for any motion to sup-
press.” Holesinger attempted to contact Hairston before
trial, but he was unsuccessful. Hairston, the individual
whom the police followed to the Hovey Street house on
November 9, 1997, eventually testified on behalf of Best at
the post-trial suppression hearing.
In addition, Best wanted counsel to call Radar Tyler, who
No. 04-1324 15
(according to Best) wrote a letter on behalf of Quincy
Jamison, one of Best’s accomplices who testified for the
government. Counsel described their decision not to call
Tyler as strategic and said that they were able to prove on
cross examination that Jamison was not able to read or
write and could not have written the letters himself.
Best’s counsel claimed that they did not call other
witnesses who were present during the raids because they
were incarcerated and the lawyers did not want witnesses
“wearing jumpsuits” to testify on Best’s behalf. They
thought that this would undermine their defense strategy,
which again was to discredit the government’s witnesses as
all being incarcerated together and “concocting up stories
together” against Best.
Taken together, these are not the strongest strategic
justifications we have seen for presenting such a skimpy
defense. The problem is less with who was called than it is
with who was investigated. Few decisions not to present
testimony can be considered “strategic” before some investi-
gation has taken place. As we explained in United States ex
rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003),
“strategic choices made after less than complete investiga-
tion are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investiga-
tion.” Id. at 247 (quoting Strickland, 466 U.S. 690-91)
(emphasis added). “Though there may be unusual cases
when an attorney can make a rational decision that investi-
gation is unnecessary, as a general rule an attorney must
investigate a case in order to provide minimally competent
professional representation.” Crisp v. Duckworth, 743 F.2d
580, 583 (7th Cir. 1984).
We need not decide, however, whether this performance
was so deficient that it flunks the first part of the Strick-
land test, because Best cannot show that he was prejudiced
by any or all of these problems. The government had
16 No. 04-1324
overwhelming evidence of Best’s guilt, including 21 wit-
nesses testifying that Best was involved in selling and
distributing crack. The government’s witnesses gave
detailed accounts of Best’s involvement in supplying and
organizing crack distribution in Gary. For example, Quincy
Jamison described himself as a “minor worker” for Best.
Jamison testified that Best paid him $1,000 a week to sell
crack for three eight-hour shifts at 1536 Jackson Street.
During the two raids at Hovey Street, the agents found Best
in the presence of crack and firearms with large sums of
cash on his person. Therefore, Best cannot show a reason-
able probability that the outcome of his trial would have
been different had the lawyers done exactly what he
wished.
B
Best also complains that he received constitutionally
ineffective assistance of counsel during the sentencing
proceeding. He focuses his appeal, however, on the court’s
denial of his request to appoint substitute counsel, rather
than on the performance rendered by the lawyers he had.
We review the denial to appoint substitute counsel for an
abuse of discretion. United States v. Bjorkman, 270 F.3d
482, 500 (7th Cir. 2001).
In determining whether the district court abused its
discretion in denying such a motion, we have structured our
inquiry around three non-exclusive factors: “(1) the timeli-
ness 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.” Bjorkman, 270 F.3d at
500.
As the record reflects, Best had been trying for a long
time to obtain new appointed counsel. After his conviction,
he tried again on August 26, 2002, one month before his
No. 04-1324 17
sentencing hearing was originally scheduled but more than
a year before it eventually took place. Vanes and Holesinger
were in favor of the motion, and the government agreed
that “good cause” existed to remove them because an
“irreconcilable conflict exists between the attorneys and the
defendant.”
One reason the court gave for denying Best’s motion for
new counsel was that it was filed two months before Best’s
death penalty trial was supposed to begin and his attorneys
had already submitted charges for over $100,000. Later,
Best’s murder charges were vacated and dismissed. Al-
though the government points out that the dismissal of
those charges made the timeliness factor relatively unim-
portant ex post, we must assume that the district court did
not have 20-20 foresight. At the time the court was required
to rule, it was reasonable for the court to disfavor a change
in lawyers because it would disrupt the overall ongoing
proceedings.
The court also made an adequate inquiry into the need for
new counsel. At the hearing on August 30, 2002, the court
heard what both Best and the two attorneys had to say
about their relationship. It also had the benefit of its
observations at the trial, which counsel had conducted after
they lost their motion to withdraw. In denying Best’s
motion, the court concluded that “trial counsel did not allow
the potential conflict of interest they were facing as a result
of Defendant’s accusations [regarding their ineffectiveness]
to develop into an actual conflict.”
Finally, we consider whether the conflict between Best
and his attorneys “resulted in a total lack of communication
preventing an adequate defense.” Bjorkman, 270 F.3d at
500. All parties agree that Best and his counsel had a
contentious relationship during the course of his trial. The
court was entitled to conclude, based on what occurred at
the trial, that total breakdown had not occurred, and thus
18 No. 04-1324
that it was not necessary to replace Vanes and Holesinger
for the sentencing phase. And indeed, the two lawyers
handled the sentencing proceeding professionally. They
objected to the drug quantities attributed to Best and to
how the government made its calculations. They objected to
finding that Best himself possessed a firearm in connection
with drug trafficking when the weapons were found with so
many other individuals in the home. On this record, we find
that the court did not abuse its discretion in denying Best’s
motion for new counsel.
IV
Finally, Best argues that his sentence violates the Sixth
Amendment. The court sentenced Best to life imprisonment
based on its conclusion that his offense level was a level 44
and a Criminal History Category V. The court found that
over 1.5 kilograms of cocaine base were attributable to Best.
The court also found that he possessed a dangerous weapon
in connection with drug trafficking and the court applied a
two-level enhancement under U.S.S.G. § 2D1.1(b)(1). The
court finally concluded that he was an organizer or leader
of five or more participants in the crime and imposed a four-
level enhancement under § 3B1.1(a).
Best does not challenge these computations as erroneous
under the Guidelines, and so we may take them as a proper
starting point. Nonetheless, under Booker it is now estab-
lished that the Guidelines are advisory only. Because the
court sentenced Best under the assumption that the
Guidelines were mandatory, we order a limited remand
under the procedures outlined in United States v. Paladino,
401 F.3d 471, 483-84 (7th Cir. 2005), so that the district
court may inform us whether it is inclined to impose the
same sentence under the now-advisory Guidelines.
No. 04-1324 19
V
We AFFIRM Best’s conviction and order a LIMITED REMAND
to the district court under Paladino.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-24-05