Bethel, Julian C. v. United States ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4108
JULIAN C. BETHEL,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 C 371—John C. Shabaz, Judge.
____________
ARGUED NOVEMBER 9, 2005—DECIDED AUGUST 17, 2006
____________
Before POSNER, ROVNER and WOOD, Circuit Judges.
ROVNER, Circuit Judge. Julian C. Bethel pled guilty to
one count of conspiracy to distribute more than 100 kilo-
grams of marijuana in violation of 21 U.S.C. § 846. He was
sentenced to 192 months’ imprisonment. That sentence was
based in part on the classification of Bethel as a “career
offender” pursuant to § 4B1.1 of the U.S. Sentencing
Guidelines (“Guidelines”). We affirmed that sentence in an
unpublished order, United States v. Bethel, 2003 WL
1545261 (7th Cir. March 24, 2003), and Bethel subsequently
filed a motion to vacate his sentence under 28 U.S.C.
§ 2255. The crux of Bethel’s claim is that his attorney
provided ineffective assistance by failing to warn him before
he pled guilty that he would be subject to treatment as a
2 No. 04-4108
career offender, instead advising him that his sentence
would be in the range of 100-125 months, substantially less
than the 192 months to which he was ultimately sentenced.
The district court rejected his claim, and we affirm.
I.
A grand jury returned an eight-count indictment against
Bethel and three co-defendants. Count I charged all four
defendants with conspiracy to distribute and possession
with intent to distribute more than 100 kilograms of
marijuana. Count V charged Bethel with distributing
marijuana. The remaining counts were directed at
Bethel’s co-defendants. Following his March 2001 arrest,
Bethel made many incriminating statements to law enforce-
ment officers about his drug-related activities. He told the
officers he had been dealing marijuana since January 1998.
Although the officers were able to verify that Bethel
regularly dealt in large quantities of marijuana, Bethel
claimed he was never a “big dealer,” and that the largest
quantity of marijuana he bought at any one time was
twelve pounds. Bethel provided varying estimates of his
marijuana purchases, at first conceding that he regularly
purchased five pounds of marijuana per week, but subse-
quently admitting to buying seven pounds every two weeks.
He stated that in the middle of 1998, he was purchasing
approximately six pounds of marijuana per month from his
co-defendants, and by the end of 1998, he was averaging
three to five pounds per week. In 1999, he averaged ten to
twenty pounds per month, but slowed his buying habits
somewhat in 2000 after he was approached by the Dane
County Narcotics Gang Task Force. The probation office
calculated that, by Bethel’s own admissions, he purchased
approximately 480 pounds (or 218 kilograms) of marijuana
between April 1998 and March 2001. Law enforcement
officers also interviewed six people who purchased mari-
No. 04-4108 3
juana from Bethel. Those purchases totaled approximately
930 pounds (or 422 kilograms). Having bought and sold
nearly a half ton of marijuana in a three-year period, Bethel
apparently had a different definition of “big dealer” than
most people would have.
Bethel pled guilty to Count I; Count V was dismissed.
Prior to pleading guilty, his lawyer advised him that he was
facing a sentence of 100 to 125 months. The lawyer pre-
dicted that Bethel would start with a base offense level of
28 under Guideline 2D1.1(a)(3) because he sold more than
400 but less than 700 kilograms of marijuana. Counsel
anticipated that Bethel would receive a three-level reduc-
tion under Guideline 3E1.1 for acceptance of responsibility
because Bethel pled guilty promptly after his indictment
and cooperated with the government. Based on Bethel’s
prior criminal record, the lawyer opined that Bethel’s
criminal history category would rate a level V.
The probation office prepared a presentence report
(“PSR”) that recommended the same Guideline range that
Bethel’s attorney had calculated, 100 to 125 months of
imprisonment. The government, however, objected to this
calculation, and recommended that Bethel be sentenced as
a career offender pursuant to Guideline 4B1.1. The applica-
tion of Guideline 4B1.1 increased the base offense level
from 28 to 34 and raised the criminal history category from
V to VI. The resultant sentencing range was 188 to 235
months. The government based this argument on two prior
state court convictions, one for possession with intent to
distribute cocaine and one for battery. Bethel conceded that
the prior state court drug conviction qualified as a felony for
the purposes of the Guidelines but disputed the character-
ization of the battery conviction as a felony crime of vio-
lence. According to the criminal complaint for the battery,
during an argument with his girlfriend, Marie Johnson,
Bethel slapped a telephone out of her hands, wrapped his
hands around her neck and pinned her to a wall. He
4 No. 04-4108
squeezed her neck, pressing against her windpipe with his
thumbs so that she could neither speak nor breathe. He
released his hold when Johnson’s friend intervened. Bethel
told Johnson, “I could have killed you but I didn’t.” Bethel
pled guilty to a Wisconsin misdemeanor charge of battery
and received a sentence of forty-five days in jail and two
years of probation. The government noted that although
Bethel was convicted of misdemeanor battery under Wis.
Stat § 940.19, he also was charged as a repeat offender
under Wis. Stat. § 939.62. Under the repeat offender
provision, he was subject to a term of up to three years of
imprisonment which, the government argued, qualified as
a felony crime of violence under either subsection of
Guideline 4B1.2.
Neither Bethel’s attorney nor the probation office initially
interpreted Bethel’s criminal record this way and so neither
realized that Bethel could be subjected to the career
offender provision of the Guidelines. Bethel’s attorney
promptly objected to the government’s recommendation that
Bethel be sentenced as a career offender. Counsel noted
that § 940.19 carried a maximum penalty of nine months’
imprisonment and that the habitual criminal enhancement
count under § 939.62 was dismissed at Bethel’s sentencing
hearing in state court. Counsel based this argument on a
review of the Circuit Court Automation Program, a data-
base that showed the habitual criminal enhancement as
dismissed as of sentencing. Counsel indicated he had filed
a written request for the case file from the Dane County
Clerk of Courts Office in an attempt to verify this informa-
tion. It is unclear from the record whether counsel had
reviewed the database prior to advising Bethel on his
probable sentence or whether the attorney did not investi-
gate this issue until the government raised it as an objec-
tion to the PSR.
In any case, the probation office agreed with the govern-
ment and filed an addendum to the PSR recommending that
No. 04-4108 5
Bethel be sentenced as a career offender with a sentencing
range of 188 to 235 months. Apparently, while Bethel was
on probation for the Wisconsin assault charge (he also was
still on probation for the Wisconsin conviction for possession
with intent to deliver cocaine), he assaulted Johnson again,
broke down the door of her home, and failed to report to his
probation agent as required. For these new incidents, both
Wisconsin probations were revoked and he was sentenced
to an additional six months’ imprisonment on the assault
charge to be served consecutively to an additional three
years on the cocaine charge. The federal probation office
therefore opined that Bethel was subject to a maximum
three year term for his original assault and thus was a two-
time felon at the time of his sentencing in the instant case.
The only dispute at Bethel’s sentencing hearing was
whether the career offender provision applied. Guideline
4B1.1(a) sets forth the relevant factors in making this
determination:
A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the defen-
dant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convic-
tions of either a crime of violence or a controlled sub-
stance offense.
Bethel did not dispute the first two factors. For the last
factor, Bethel conceded that he had one prior conviction
meeting the provision, the 1994 conviction for possessing
cocaine with the intent to deliver. The center of the sentenc-
ing hearing was the 1995 conviction for battery. The
description of the crime foreclosed argument about whether
this was a crime of violence. With both the government and
the probation office now characterizing the battery as a
felony, the district court sentenced Bethel as a career
offender to 192 months’ imprisonment. We subsequently
affirmed Bethel’s sentence, citing as dispositive United
6 No. 04-4108
States v. Bissonette, 281 F.3d 645, 646-47 (7th Cir. 2002).
Although Bissonette post-dated Bethel’s sentencing, Bethel
maintains that his attorney should have been able to
predict the application of the career offender provision
under then-existing Supreme Court precedent, namely
United States v. LaBonte, 520 U.S. 751 (1997).
After we affirmed the sentence on direct appeal, Bethel
moved to vacate his sentence under 28 U.S.C. § 2255 on the
ground that his attorney provided ineffective assistance
by failing to advise him that he would be eligible for
treatment as a career offender.1 The district court denied
Bethel’s request to hold an evidentiary hearing, deeming it
unnecessary under 28 U.S.C. § 2255. The court noted that
under Strickland v. Washington, 466 U.S. 668 (1984),
Bethel must show that his lawyer’s representation fell
below an objective standard of reasonableness, and that the
deficient performance so prejudiced his defense that
it deprived him of a fair trial. In the context of a guilty plea,
the court observed that Bethel must show that but for
counsel’s deficient advice, he would have insisted on
proceeding to trial. After noting these standards, the court
analyzed Bethel’s claim:
Petitioner has not demonstrated that his counsel’s
actions fell below an objective standard of reasonable-
ness or that absent the advice of counsel he would have
proceeded to trial because he would still have been
subjected to the career offender sentence. Accordingly,
petitioner was not denied effective assistance of counsel
and his motion under 28 U.S.C. § 2255 on this ground
will be denied.
1
In his pro se motion, Bethel also argued again that the court
erred by sentencing him as a career offender and that his sentence
violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Those
claims are not part of this appeal.
No. 04-4108 7
Bethel v. United States, No. 04-C-371-S, Memorandum and
Order, at 4-5 (W.D. Wisc. Sept. 21, 2004). The district court
subsequently denied Bethel’s request for a certificate of
appealability. We construed his notice of appeal as an
application for a certificate of appealability in this court. We
found that Bethel had made a substantial showing of the
denial of a constitutional right on the issue of whether
counsel was ineffective when he failed to warn Bethel that
he could be sentenced as a career criminal offender. We
granted the certificate of appealability as to that issue,
granted Bethel’s motion to proceed in forma pauperis, and
sua sponte appointed counsel.
II.
On appeal, Bethel argues that he meets both prongs of
the Strickland test to establish ineffective assistance of
counsel. First, he contends that his lawyer’s performance
fell short of objectively reasonable standards when he failed
to advise Bethel that he could be subject to the career
offender provision, exposing him to a sentence nearly twice
as long as the one counsel predicted. Second, Bethel
maintains he has credibly shown that but for counsel’s
deficient advice, there is a reasonable probability that he
would not have accepted the plea agreement, but instead
would have insisted on putting the government to its
burden of proof at trial.
A.
In early May 2001, Bethel signed a plea agreement with
the U.S. Attorney’s office. The plea agreement provided
in relevant part:
The defendant understands that any guideline compu-
tation discussions are not part of the plea agreement.
The defendant should not rely upon the possibility of a
8 No. 04-4108
particular sentence based upon any guideline computa-
tion discussions between defense counsel and the
United States.
R. 31, at 4. Bethel also acknowledged in the plea letter that
the United States made no promises or guarantees regard-
ing the sentence to be imposed, and that the court could
impose any sentence up to the statutory maximum subject
to the limits imposed by the Guidelines. R. 31, at 4.
At Bethel’s change of plea hearing, the district court
posed a series of questions in order to determine that
Bethel’s plea was both knowing and voluntary. R. 109, at 3-
7. After determining that Bethel understood his plea
agreement and had discussed it with his lawyer, the court
asked Bethel if anyone made any other promise or assur-
ance to him to induce him to plead guilty. R. 109, at 7, 10.
Under oath, Bethel denied that anyone had made any
promises or assurances. He also affirmed his understanding
(1) that his sentence could be more severe than he might be
expecting; (2) that the statutory minimum was five years’
imprisonment and the maximum was forty years; (3) that
the government reserved the right to challenge the Guide-
lines computations prepared by the probation office; (4) that
the government agreed in its discretion to move for a
sentence reduction if Bethel provided substantial assistance
to the government but that the court was not obliged to
grant the motion; (5) that any Guideline computation
discussions were not part of the plea agreement; (6) that
Bethel should not rely upon the possibility of a particular
sentence based on guideline computation discussions held
between defense counsel and the government; and (7) that
the court was free to reject any recommendation as to
sentence and was free to impose any sentence up to and
including the statutory maximum subject only to the limits
of the Guidelines. R. 109, at 15, 18-22. The court also asked
Bethel:
Do you understand that the Court will not be able to
determine the guideline sentence for your case until
No. 04-4108 9
after the presentence report has been completed and . . .
you have had the opportunity as will the government to
challenge the reported facts and the application of the
guidelines recommended by the probation officer and
that the sentence imposed may be different from any
estimate your attorney may have given you. . . . Is that
your understanding, Mr. Bethel?
R. 109, at 22. Bethel replied, “Yes, sir.” Id. Bethel also
affirmed that he understood that the Court had the author-
ity in some circumstances to depart from the Guidelines and
impose a sentence that was either more severe or less
severe than the sentence called for by the Guidelines.2 The
court explained again that after Bethel pled guilty, a
presentence report would be prepared to assist the court in
determining an appropriate sentence. At the end of this
discussion, Bethel entered a plea of guilty.3 R. 109, at 39.
B.
When a district court denies a petition under § 2255, we
review fact findings for clear error and issues of law de
novo. Galbraith v. United States, 313 F.3d 1001, 1006 (7th
2
Bethel’s change of plea hearing and sentencing hearing were
held in 2001, long before the Supreme Court ruled that the
Guidelines were to be treated as advisory rather than mandatory.
See United States v. Booker, 543 U.S. 220 (2005).
3
The court also walked Bethel through the various applicable
provisions of the plea agreement itself, confirming his understand-
ing of the terms of that document and his assent to the agree-
ment. The plea agreement provided that if Bethel provided
substantial assistance to the government in an investigation
or prosecution of another person, the government would, in its
discretion, move under Guideline 5K1.1 for a downward departure
in Bethel’s sentence. The plea agreement reserved to both Bethel
and the government the right to challenge the Guide-
lines calculations made by the probation office.
10 No. 04-4108
Cir. 2002). The district court made no fact-findings and our
review is thus de novo. In order to make out a claim for
ineffective assistance of counsel in the context of a guilty
plea, a defendant must show (1) that counsel’s performance
fell below an objective standard of reasonableness; and (2)
that there is a reasonable probability that, but for counsel’s
errors, the defendant would not have pled guilty and would
have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52,
57-59 (1985); Strickland, 466 U.S. at 687-88. See also Moore
v. Bryant, 348 F.3d 238, 241 (7th Cir. 2003) (to show
ineffective assistance in the context of a guilty plea, a
defendant must demonstrate that counsel’s advice regard-
ing the plea was objectively unreasonable and that there is
a reasonable probability that, but for counsel’s error, the
defendant would not have pled guilty but would have
insisted on going to trial); Galbraith, 313 F.3d at 1008 (to
meet the prejudice prong of the Strickland test in the
context of a guilty plea, the defendant must show that but
for counsel’s error, he would not have pled guilty).
When assessing counsel’s performance, we have noted
that a reasonably competent lawyer will attempt to learn all
of the relevant facts of the case, make an estimate of
a likely sentence, and communicate the results of that
analysis to the client before allowing the client to plead
guilty. Moore, 348 F.3d at 241. See also United States v.
Cieslowski, 410 F.3d 353, 358-59 (7th Cir. 2005), cert.
denied, 126 S. Ct. 1021 (2006) (to prove inadequate perfor-
mance, a defendant must show that counsel did not attempt
to learn the facts of the case and failed to make a good-faith
estimate of a likely sentence); United States v. Martinez,
169 F.3d 1049, 1053 (7th Cir. 1999) (to provide effective
assistance of counsel in a guilty plea, counsel must attempt
to learn the facts of the case and make a good-faith estimate
of a likely sentence); United States v. Barnes, 83 F.3d 934,
939 (7th Cir.), cert. denied, 519 U.S. 857 (1996) (a reason-
ably competent counsel will attempt to learn all of the facts
No. 04-4108 11
of the case, make an estimate of a likely sentence, and
communicate the results of that analysis to the client). The
Supreme Court has noted the many uncertainties surround-
ing the difficult decision of whether to plead guilty.
McMann v. Richardson, 397 U.S. 759, 769-70 (1970).
Because many questions about the facts and how a court or
jury will apply the law to those facts cannot be answered by
counsel with certitude, “[w]aiving trial entails the inherent
risk that the good-faith evaluations of a reasonably compe-
tent attorney will turn out to be mistaken either as to the
facts or as to what a court’s judgment might be on given
facts.” McMann, 397 U.S. at 770.
Although a gross mischaracterization of the sentencing
consequences of a plea may strongly indicate deficient
performance, it is not proof of deficiency. Cieslowski, 410
F.3d at 359. The government does not contest Bethel’s claim
that his lawyer failed to advise him that he would
be subject to the career offender provision, which exposed
him to nearly double his lawyer’s estimate of the applicable
Guidelines sentencing range. The salient question is
whether counsel undertook a good-faith effort to determine
the applicable facts and estimate the sentence. An inaccu-
rate prediction of a sentence alone is not enough to meet the
standard. Barnes, 83 F.3d at 940; United States v. Arvanitis,
902 F.2d 489, 494 (7th Cir. 1990). Because the district court
declined to hold a hearing, the record is wholly undeveloped
on the issue of the efforts that Bethel’s lawyer undertook to
estimate Bethel’s sentence before recommending that
Bethel plead guilty. We do not know, for example, whether
counsel examined the state’s database for information on
the battery charge before he advised Bethel about his
sentence or only after the government objected to the PSR.
We do not know if the database inaccurately showed that
the habitual criminal enhancement count under § 939.62
had been dismissed at Bethel’s sentencing hearing in state
court. Nor do we know whether counsel investigated the
12 No. 04-4108
effect of Bethel’s probation violation on that dismissal. At
best, we know that whatever error counsel made was
repeated by the probation office when it first calculated the
sentencing range. It is certainly possible in this situation
that Bethel’s attorney made a good-faith effort to learn all
of the relevant facts and calculate a probable sentence and
still made a mistake. Although the effect of the mistake was
a rather large discrepancy in the possible sentence pre-
dicted, the error could have been based on a subtle misin-
terpretation of Bethel’s state court criminal record, which
itself appears somewhat muddled. See Galbraith, 313
F.3d at 1008 (the ineffective assistance analysis takes place
in the context of a presumption that an attorney’s conduct
is reasonably proficient). Because there was no hearing on
the issue, however, there is simply not enough here to
determine what efforts counsel undertook in calculating the
sentencing range he communicated to Bethel. We thus
cannot determine whether counsel’s performance fell below
an objective standard of reasonableness.
But even if we assume that counsel’s advice regarding the
plea was objectively unreasonable (and again, we make no
such judgment today), Bethel has not shown that, absent
counsel’s erroneous advice, he would not have pled guilty
but would have insisted on going to trial. In an affidavit in
support of his § 2255 motion, Bethel asserted, “[M]y
appointed counsel ‘coerced’ me into pleading guilty with
misinformation as to the sentence that I would receive in
exchange for my plea.” R. 91, ¶ 5. In describing that
misinformation, he complains that through the pre-trial
stage, the change of plea hearing and the first PSR, he was
not informed that his sentence could be enhanced under the
career criminal provisions of the Guidelines. R. 91, ¶ 6.
Although it appears true that no one mentioned this
particular enhancement to him, the district court advised
Bethel that his sentence could be more severe than he
might be expecting; that the government reserved the right
No. 04-4108 13
to challenge the Guidelines computations prepared by the
probation office; that any Guideline computation discus-
sions were not part of the plea agreement; and that Bethel
should not rely upon the possibility of a particular sentence
based on Guideline computation discussions held between
defense counsel and the government. The court advised
Bethel that “the Court will not be able to determine the
guideline sentence for your case until after the presentence
report has been completed and . . . you have had the
opportunity as will the government to challenge the re-
ported facts and the application of the guidelines recom-
mended by the probation officer and that the sentence
imposed may be different from any estimate your attorney
may have given you.” R. 109, at 22. The court thus informed
Bethel in six or seven different ways that he could not rely
on any particular predictions or discussions about a possible
sentence when he entered his plea. Under oath, Bethel
stated that he understood all of this and still wanted to
plead guilty. In doing so, he was affirming that his guilty
plea was not made in reliance of a particular sentence. He
cannot now be heard to complain that he would not have
pled guilty if he had known his sentence would be more
severe than his lawyer predicted. He specifically disclaimed
that risk at his change of plea hearing.
We have stated many times that a mere allegation by
the defendant that he would have insisted on going to
trial is not sufficient to establish prejudice. Cieslowski, 410
F.3d at 359; Berkey v. United States, 318 F.3d 768, 772-73
(7th Cir. 2003), cert. denied, 541 U.S. 1055 (2004); Barker v.
United States, 7 F.3d 629, 633 (7th Cir. 1993), cert. denied,
510 U.S. 1099 (1994). Bethel has more than a mere allega-
tion; he can show that his lawyer’s prediction was mistaken
by a considerable margin. See Moore, 348 F.3d at 242-43 (an
erroneous sentencing prediction of nearly double the time
that the defendant would actually have faced had he
proceeded to trial is precisely the type of information that
14 No. 04-4108
is likely to impact a plea decision); Barnes, 83 F.3d at 940(a gross mischaracterization of the sentencing consequences
of a plea may provide a strong indication of deficient
performance). That margin might give us pause if Bethel
had not repeatedly insisted at his plea hearing that he was
not relying on a particular sentence in entering his plea. See
United States v. Peterson, 414 F.3d 825, 827 (7th Cir.), cert.
denied, 126 S. Ct. 592 (2005). In that case, Peterson moved
to withdraw his guilty plea, arguing that it was involuntary
because his attorney falsely promised him that his federal
sentence would run concurrently with any punishment
under state law. At his plea hearing, Peterson, like Bethel,
insisted that no one had promised him anything in ex-
change for his plea. The judge then asked Peterson if he
understood that the sentences might not be concurrent and
he indicated that he did. We remarked, “Judges need not let
litigants contradict themselves so readily; a motion that can
succeed only if the defendant committed perjury at the plea
proceedings may be rejected out of hand unless the defen-
dant has a compelling explanation for the contradiction.”
Peterson, 414 F.3d at 827. Bethel’s situation differs only in
that the court did not inquire about the specific Guideline
provision that is now at issue. Bethel made broad and
repeated concessions that he understood his sentence could
be more severe than predicted and that he was not relying
on a particular sentence in signing the plea agreement and
pleading guilty. He offers no compelling explanation for his
current claim that he would not have pled guilty had he
known his sentence would be higher than predicted, a claim
that directly contradicts his statements at the change of
plea hearing. To prove the prejudice prong of the Hill
analysis, a defendant must show that his lawyer’s defi-
ciency was a decisive factor in his decision to plead guilty.
Martinez, 169 F.3d at 1053; Barnes, 83 F.3d at 940. Having
assured the court that sentencing was not a factor (much
less a decisive factor) in his decision to plead guilty, Bethel
fails to make the requisite showing.
No. 04-4108 15
Bethel relies on Moore for the proposition that his plea
colloquy did not remove the prejudice of his lawyer’s
erroneous advice regarding sentencing. 348 F.3d 238. But
Moore is distinguishable in several respects. Moore main-
tained his innocence throughout the pre-trial process,
unlike Bethel who confessed almost immediately. Moore,
348 F.3d at 240. Moore changed his plea only reluctantly
after his lawyer told him that he would face ten years if
he pled guilty or twenty-two to twenty-seven years if
convicted at trial. Moore, 348 F.3d at 242-43. In fact, Moore
faced a sentence of twelve and half to fifteen years if he was
convicted at trial. At his change of plea hearing, Moore
indicated that he did not wish to proceed with the plea, then
changed his mind and entered the plea. He then moved to
withdraw the plea soon after entering it. Moore, 348 F.3d at
243. Bethel never indicated any ambivalence about his plea.
But the determinative difference between Moore and Bethel
is that nothing in Moore’s plea colloquy addressed whether
his plea was based on any predictions as to his sentence.
Moore, 348 F.3d at 243. Nothing at the plea alerted Moore
to the possibility that he was misinformed as to the choice
he faced. Id. As we noted above, the district court told
Bethel in six or seven different ways that his sentence could
be more severe than he expected and greater than his
attorney predicted. Bethel understood and agreed and pled
guilty anyway, thereby enjoying a three-level reduction for
acceptance of responsibility. Moore is therefore inapposite.
Bethel finally argues that, had he known he was sub-
ject to the career offender provision, he would have negoti-
ated a different plea deal for himself than the one
he accepted. But that is not the test. Under Hill and its
progeny, a claim that a defendant would not have entered
this particular plea agreement is not sufficient to show
prejudice. Hill, 474 U.S. at 59; Martinez, 169 F.3d at 1053;
Arvanitis, 902 F.2d at 489. To demonstrate prejudice, the
defendant must show that he would not have pled guilty
16 No. 04-4108
and would have insisted on going to trial. Whether he could
have negotiated a better plea deal is irrelevant to the issue
of prejudice in the ineffective assistance context. It is
unlikely Bethel would have insisted on going to trial in any
case because, shortly after his arrest, he confessed to selling
hundreds of pounds of marijuana. He never challenged the
admissibility of that confession and, in combination with
evidence of a controlled buy and the testimony of his co-
defendants, his conviction was a virtual certainty. No doubt
his lawyer would have advised him to plead guilty even if
counsel had accurately predicted the application of the
career offender provision. We doubt Bethel would have
traded the three-level acceptance of responsibility reduction
for the privilege of a trial with a virtually certain result.
But we need not engage in that speculation because Bethel
himself assured all concerned that he wished to plead guilty
no matter what the sentencing consequences of that plea
turned out to be. He was therefore not prejudiced by his
lawyer’s advice.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-17-06