United States v. Spence, Timothy W. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1848
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TIMOTHY W. SPENCE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 CR 277—Rudolph T. Randa, Chief Judge.
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ARGUED FEBRUARY 16, 2006—DECIDED JUNE 13, 2006
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Before BAUER, EASTERBROOK, and MANION, Circuit
Judges.
BAUER, Circuit Judge. Timothy W. Spence pleaded guilty
to conspiracy to distribute marijuana, conspiracy to conduct
financial transactions with drug proceeds, and criminal
contempt. He challenges the judgment and sentence. We
affirm.
I. Background
On January 13, 2004, the grand jury issued a superseding
indictment charging Spence with three drug-related counts.
Count One charged him with conspiracy to distribute
marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
2 No. 05-1848
841(b)(1)(B)(vii), 846, and 18 U.S.C. § 2. Count Two charged
him with attempt to distribute cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. Count Three
charged him with conspiracy to conduct financial transac-
tions, affecting interstate commerce, with the proceeds of
unlawful activity, in violation of 18 U.S.C. §§ 2,
1956(a)(1)(A)(I), and 1956(a)(1)(B)(I).
On February 10, 2004, the magistrate judge entered an
order requiring Spence to submit exemplars of his hand-
writing and handprinting. After Spence refused, the
magistrate judge entered an order to show cause why
Spence should not be found in contempt of court and
scheduled a hearing for March 25. At the hearing, defense
counsel Michael Ettinger stated that he had discussed the
order with Spence, but requested a continuance to re-
search whether the court had authority to order a defendant
to submit exemplars after indictment. The court continued
the hearing until April 7.
At the rescheduled hearing, Ettinger conceded the
validity of the court’s order. Because Spence still refused to
comply, however, the magistrate judge issued a Certifica-
tion of Facts Supporting a Finding of Contempt. On May 6,
the district court signed an Order of Contempt finding
Spence in criminal contempt and permitting the charge to
be tried to a jury.
On June 10, 2004, Spence entered into a plea agreement,
which included facts concerning his organization and
leadership of the conspiracies. He understood and signed
the agreement, in which the government expressly stated
its intent to recommend an organizer/leader enhancement
under U.S.S.G. § 3B1.1(a). Spence also filed objections to
the Presentence Report (PSR), including one challenging
the district court’s authority to impose an organizer/leader
enhancement after United States v. Booker, 543 U.S. 220(2005). Spence pleaded guilty to Counts One and Three of
No. 05-1848 3
the indictment and to the criminal contempt charge. On
March 17, 2005, the district court sentenced him to concur-
rent terms of 150 months’ imprisonment. Spence appealed.
II. Discussion
On appeal, Spence claims that: (1) he was denied effective
assistance of counsel under the Sixth Amendment; (2) the
district court improperly increased his criminal history
category based on prior convictions; and (3) the district
court improperly imposed an organizer/ leader enhance-
ment.
A. Ineffective Assistance of Counsel
We cautioned Spence’s counsel at oral argument against
raising a claim of ineffective assistance of counsel on direct
review rather than in a collateral proceeding. See United
States v. Harris, 394 F.3d 543, 557 (7th Cir. 2005). Bringing
ineffectiveness claims in this posture leaves defendants
with “little to gain and everything to lose,” United States v.
South, 28 F.3d 619, 629 (7th Cir. 1994) (quoting Bond v.
United States, 1 F.3d 631, 635 (7th Cir. 1993)), because
appellate courts have neither the opportunity to observe
counsel’s performance firsthand nor the advantage of a
well-developed record concerning the attorney’s motiva-
tions. See United States v. Farr, 297 F.3d 651, 657 (7th Cir.
2002). The Supreme Court recognized these concerns in
holding that an ineffectiveness claim may be brought in a
collateral proceeding even after the petitioner failed to raise
the issue in a direct appeal. See Massaro v. United States,
538 U.S. 500, 504 (2003). In spite of these concerns,
Spence’s appellate counsel has resolved to pursue this claim
and we will address it. See United States v. Bradford, 78
F.3d 1216, 1225 n.11 (7th Cir. 1996).
4 No. 05-1848
To prevail on an ineffectiveness claim, a defendant must
show that counsel’s “representation fell below an objective
standard of reasonableness” under “prevailing professional
norms.” Strickland v. Washington, 466 U.S. 668, 688 (1984).
The defendant must further demonstrate that counsel’s
deficient performance prejudiced the defense. Id. at 692.
There is a strong presumption that counsel performed
reasonably. United States v. Traeger, 289 F.3d 461, 470 (7th
Cir. 2002) (citing Strickland, 466 U.S. at 690). The defen-
dant must identify specific failures in counsel’s performance
which form the basis of the claim. Id. Spence directs us to
Ettinger’s mistaken belief that the court did not have the
authority to compel his handwriting and handprinting
exemplars. In reliance on this mistaken belief, Spence
claims, he refused to comply with the order, a refusal that
resulted in a criminal contempt charge.
Ettinger first appeared as counsel for Spence at the
March 25 hearing. Based on his preliminary research, he
believed that the court had no authority to order a defen-
dant to submit exemplars post-indictment. After discussing
the matter with his client, Ettinger requested an adjourn-
ment of the contempt hearing so that he could research the
issue further. The court continued the hearing until April
7, when Ettinger conceded the court’s authority to issue the
order. Ettinger also then advised the court that Spence
intended to invoke the Fifth Amendment, even though
Ettinger “explained to him [that] handwriting is not covered
by the Fifth Amendment” and the court told him that “the
Fifth Amendment is not applicable under these circum-
stances.” Although Spence claims that the error was
attributable to Ettinger, these facts demonstrate that
Spence decided of his own volition to invoke the Fifth
Amendment against both Ettinger’s advice and the court’s
admonition.
A counsel’s misapprehension of law may constitute
objectively unreasonable performance. See Williams v.
No. 05-1848 5
Taylor, 529 U.S. 362, 395 (2000) (finding ineffective assis-
tance for failure to investigate “because [counsel] incorrectly
thought that state law barred access to” certain records).
Ettinger had an incorrect understanding of the law until at
least March 25, but then went to great lengths to remedy
the initial error by researching the issue, communicating
with Spence, requesting and receiving an adjournment, and
conducting additional research. See Smith v. Dretke, 417
F.3d 438, 442-43 (5th Cir. 2005) (observing that counsel’s
deficiency in failing “to achieve a rudimentary understand-
ing of” the applicable law “could have been corrected with
minimal legal research”). After taking the proper corrective
actions, he advised Spence on April 7 that there was no
legal justification for refusing to comply with the order.
Beyond communicating the corrected information to Spence,
Ettinger could not control Spence’s course of action. See
Farr, 297 F.3d at 659 (holding that counsel communicated
sufficiently with defendant although he did not “drag
[defendant] kicking and screaming into his office”). Spence
received the appropriate advice and had ample opportunity,
up until the May 6 district court contempt hearing, to act
upon it. At the change of plea hearing, he expressed
satisfaction with the representation he received. Ettinger
did not perform below an objective standard of reasonable-
ness, and Spence was not denied the effective assistance of
counsel.
B. Criminal History Category
Spence claims that the district court improperly increased
his criminal history category from three to four. Once the
government dismissed the 21 U.S.C. § 851 information, he
argues, the district court no longer had the authority to
enhance his sentence based on his prior convictions. We
review de novo the district court’s calculation of a defen-
dant’s criminal history based on prior convictions. United
States v. Roy, 126 F.3d 953, 954 (7th Cir. 1997).
6 No. 05-1848
Under the statute, no person convicted “under this part
shall be sentenced to increased punishment by reason of one
or more prior convictions, unless before trial, or before entry
of a plea of guilty, the United States attorney files an
information with the court. . . .” 21 U.S.C. § 851(a)(1).
Spence correctly notes that the government withdrew the §
851 information, but ignores the statutory language, “under
this part.” The district court considered the prior convic-
tions under the guidelines rather than under § 851. We
have found that the requirements of § 851 apply “when the
government seeks to enhance the maximum penalty under
the recidivist provisions of that statute.” United States v.
Flores, 5 F.3d 1070, 1081 (7th Cir. 1993) (quoting United
States v. Belanger, 970 F.2d 416, 418 n.1 (7th Cir. 1992)).
The section does not apply when the district court sentences
a defendant under the guidelines to an increased sentence
within the statutory range. Id.By agreement, the § 851 information was dismissed and
Count One carried a term of imprisonment of not less than
five and not more than forty years. On that count, the
district court sentenced Spence to 150 months’ imprison-
ment, well below the statutory maximum. Additionally, the
district court declined to classify Spence as a career of-
fender, as suggested by the PSR. If the government had
elected to cross-appeal, his sentence would actually increase
because the district court would be required to classify
Spence as a career offender. See U.S.S.G. § 4B1.1(b) (stating
that the applicable offense level from the career offender
table “shall apply” if it is greater than the otherwise
applicable offense level). The district court decided instead
“to consider [the prior offenses] under [18 U.S.C. §] 3553.”
After Booker, the district court must consider the § 3553(a)
factors in determining what sentence to impose. United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). A defen-
dant’s criminal history, or lack thereof, is a proper focus of
the court’s inquiry because it relates to several § 3553
No. 05-1848 7
factors. See United States v. Baker, 445 F.3d 987, 992 (7th
Cir. 2006) (stating that the district court’s consideration of
defendant’s lack of criminal history coincided with factors
expressed in §§ 3553(a)(1) (“history and characteristics of
the defendant”), (a)(2)(A) (“just punishment”), and (a)(2)(B)
(“adequate deterrence”)). It was not error for the district
court to consider Spence’s criminal history under § 3553(a).
C. Organizer/Leader Enhancement
Finally, Spence claims that the district court erred in
enhancing his sentence because he never agreed to the facts
establishing his role as an organizer/leader. The district
court followed the PSR recommendation that Spence’s
offense level should be increased by four levels pursuant to
U.S.S.G. § 3B1.1(a). We review the district court’s applica-
tion of facts to the guidelines de novo. United States v. Scott,
405 F.3d 615, 617 (7th Cir. 2005).
The plea agreement included sufficient facts from which
to impose a § 3B1.1(a) enhancement. Spence understood
and signed the agreement, which expressly stated that the
drug conspiracy of Count One “was organized by” him and
another man. Similarly, for Count Three, the plea agree-
ment detailed his leading role in the money laundering
conspiracy, in which he: (1) used drug proceeds to ar-
range for the drugs’ transport by airplane; (2) used drug
proceeds to obtain airline tickets used in the conspiracy;
and (3) directed at least three others to transfer funds for
use in the conspiracy. The agreement additionally notified
Spence that the government intended to recommend the
enhancement, although Spence did not join in the recom-
mendation.
The same facts appeared in the PSR, to which he objected
only on the basis that he did not agree “in the Plea Agree-
ment to this enhancement, it is not alleged in the indict-
ment[,] and a jury was not waived as to this issue.” His
8 No. 05-1848
objection, then, related not to the facts establishing his role
as an organizer/leader, but to the district court’s post-
Booker authority to impose the enhancement. At the
sentencing hearing, Spence again did not object to the facts,
although the court gave him the opportunity to do so.
Spence argues for the first time on appeal that
the language used at sentencing contradicted the district
court’s imposition of the enhancement. The court stated
that, if the case proceeded to trial, the government would
need to prove that Spence “knowingly became a member of
that conspiracy.” Proving that he was a member of the
conspiracy, Spence argues, necessarily implies that he was
not an organizer or leader of it. With this argument, Spence
attempts to transform the word “member,” used casually by
the district court, into a term of art that precludes the
possibility of an enhancement for his aggravated role. The
guideline section, however, does not mention the word
“member.” See U.S.S.G. § 3B1.1. It certainly does not
delineate between an organizer/leader and a member, as it
does between an organizer/leader and a
manager/supervisor. See id. We decline to impute such
profound meaning to the district court’s offhand choice of
words.
Spence’s only objection, then, is a legal one: he claims that
his sentence violated the Sixth Amendment because the
district court rather than a jury imposed the enhancement.
Booker and its progeny, however, “do not foreclose judicial
factfinding in the sentencing context, nor do they dictate
that judges must find those facts beyond a reasonable
doubt.” United States v. Bryant, 420 F.3d 652, 656 (7th Cir.
2005). Rather, “a Sixth Amendment problem emerges if
judicial factfinding results in a sentence exceeding the
statutory maximum, for example, or if such factfinding
requires a particular sentence in the context of a mandatory
sentencing guidelines scheme.” Id. As neither of those
circumstances is present here, the district court properly
made the findings and imposed the enhancement.
No. 05-1848 9
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of
the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-13-06