United States v. Trombetta, Steve L. ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2006
Decided April 20, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-1676
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 01 CR 730
STEVE TROMBETTA,
Defendant-Appellant. Robert W. Gettleman,
Judge.
ORDER
Steve Trombetta was convicted after a jury trial of one count of conspiracy to
possess and distribute MDMA (methylenedioxymethamphetamine), commonly
known as Ecstasy, 21 U.S.C. §§ 846, 841(a)(1), and one count of possession with
intent to distribute Ecstasy, id. § 841(a)(1). He was sentenced within the guidelines
range to a total of 110 months’ imprisonment and three years’ supervised release.
Mr. Trombetta filed a timely notice of appeal, but his appointed counsel now moves
to withdraw because he cannot discern a nonfrivolous basis for the appeal. See
Anders v. California, 386 U.S. 738 (1967). We invited Mr. Trombetta to respond to
No. 05-1676 Page 2
counsel’s motion, but he has not done so. We therefore confine our review to the
potential issues identified in counsel’s facially adequate brief. See United States v.
Maeder, 326 F.3d 892, 893 (7th Cir. 2003).
The most significant question posed by current counsel is whether Mr.
Trombetta might argue on appeal that the lawyer who represented him until his
sentencing, Anthony Schumann, was ineffective. Mr. Trombetta went to trial, but
Schumann offered neither opening nor closing statements, cross-examined none of
the government’s witnesses and called no witnesses of his own. Nothing in the
record explains Schumann’s failure to put on any sort of defense before the jury. The
district court found Schumann’s behavior troubling and at sentencing, after allowing
him to withdraw for reasons not set out in the record, commented: “[Schumann]
never made an opening statement, he never asked a question, and he never made a
closing statement. . . . I said, ‘Why didn’t you just plead guilty?’ And his answer was
‘They never offered us a deal that was any good.’”
Appellate counsel concludes that it would be premature to challenge
Schumann’s performance on direct appeal, and we agree. Our review of the
effectiveness of counsel’s assistance is “highly deferential,” Strickland v.
Washington, 466 U.S. 668, 689 (1984); Earls v. McCaughtry, 379 F.3d 489, 494 (7th
Cir. 2004), and we give “wide latitude for behavior stemming from trial strategies,”
Earls, 279 F.3d at 494. In this case the district court expressed doubt that
Schumann had a trial strategy, and the lawyer who took over for Schumann at
sentencing was unable to explain his conduct when the court expressed its concern.
Noting that the new lawyer (a third lawyer represents Mr. Trombetta before this
court) had not raised an argument concerning Schumann’s representation, the court
said: “Maybe there is another avenue to do that, and maybe that’s how we have to
deal with this, where I would actually probably hold a hearing on this and ask
Mr. Schumann what was in his head. It has bothered me ever since that trial.” The
need to develop the record to clarify Schumann’s intentions is a compelling reason
why a claim of ineffective assistance of counsel is better reserved for a motion under
28 U.S.C. § 2255. See Massaro v. United States, 538 U.S. 500, 504 (2003); United
States v. Turcotte, 405 F.3d 515, 537 (7th Cir. 2005).
Counsel has also considered arguing that there was insufficient evidence
presented at trial to support Mr. Trombetta’s convictions. Mr. Trombetta never
moved for a judgment of acquittal, see Fed. R. Crim. P. 29, so we would review such a
claim for plain error. We would reverse only if allowing the convictions to stand
would result in a “manifest miscarriage of justice.” United States v. Williams, 298
F.3d 688, 692 (7th Cir. 2002); see also United States v. Rock, 370 F.3d 712, 714 (7th
Cir. 2004). Mr. Trombetta was arrested at the culmination of an arranged
transaction in which he and his codefendant attempted to sell Ecstasy to an
No. 05-1676 Page 3
undercover officer through a middleman, an informant cooperating in the
investigation. The evidence at trial showed that while his codefendant waited nearby
with the drugs Mr. Trombetta met the undercover officer and informant in the
parking lot of an Olive Garden restaurant. The evidence also showed that before
proceeding with the transaction Mr. Trombetta patted down the officer and tried to
trick him into admitting he was a police officer, that after Mr. Trombetta was shown
the buy money he called his codefendant and arranged a meeting where he picked up
the drugs, and that he then brought the drugs back to the Olive Garden and gave
them to the informant. The government established these events not only through
the testimony of the informant, the undercover officer, and the surveillance officers,
but also with telephone conversations the informant recorded between himself and
Mr. Trombetta and telephone records showing Mr. Trombetta’s calls to his
codefendant in arranging the sale. The government also offered the drugs
themselves, nearly 1800 tablets of what the defense stipulated was Ecstasy, and the
testimony of a fingerprint expert who testified that Mr. Trombetta’s fingerprints
were on the baggies in which the drugs were found. The evidence overwhelmingly
supports the jury’s guilty verdicts, and we agree with counsel that a contrary
argument would be frivolous.
The remaining potential issues arise from Mr. Trombetta’s sentencing, and
here counsel starts by considering whether to base an appeal on the district court’s
refusal to grant Mr. Trombetta a downward adjustment under U.S.S.G. § 3E1.1 for
acceptance of responsibility. Mr. Trombetta sought the adjustment on the premise
that he cooperated with the government. Mr. Trombetta was released on bond with
the expectation that he would assist the government with narcotics investigations,
but the government refused his further help after he made an unauthorized attempt
to locate the informant who helped the government make the case against him. Mr.
Trombetta characterized this effort to find the informant as part of his cooperation,
but the government suspected that his real goal was to intimidate the informant. We
have held that acceptance points are largely intended “to help the government and
the judiciary avoid the time and expense of trial” and thus are generally unavailable
to defendants who exercise their right to a trial. United States v. Cunningham, 103
F.3d 596, 598 (7th Cir. 1996). And while counsel at sentencing argued that Mr.
Trombetta’s lack of participation at trial should have preserved his eligibility for the
adjustment, his choice to go to trial was enough to oblige the district court and the
prosecution to expend time and resources regardless of his passivity in the
courtroom. Application Note 2 to § 3E1.1 explains that going to trial does not
automatically make a defendant ineligible for acceptance points but will likely do so
unless the defendant chose a trial “only to obtain a ruling on a contested legal issue.”
United States v. Lange, 312 F.3d 263, 270 (7th Cir. 2002). It is not error for a district
court to withhold § 3E1.1 consideration from a defendant who stands on his right to
trial while maintaining his factual innocence. See United States v. Woodard, 408
No. 05-1676 Page 4
F.3d 396, 397-98 (7th Cir. 2005); Lange, 312 F.3d at 270. It would therefore be
frivolous to proceed with this contention on appeal.
Counsel next contemplates an argument that the sentencing court improperly
treated the sentencing guidelines as mandatory or failed to consider the factors set
out in 18 U.S.C. § 3553(a). But Mr. Trombetta was sentenced after the Supreme
Court decided United States v. Booker, 125 S. Ct. 738 (2005), and the district court
clearly understood and explicitly stated that it was not bound by the Guidelines.
Moreover, the court recited the various § 3553(a) factors and analyzed several of
them in depth, such as the need for the sentence to reflect the seriousness of the
crime, 18 U.S.C. § 3553(a)(1); the need to protect the public from the defendant’s
further crimes, id. § 3553(a)(2)(C); and the need to make vocational training,
education, and medical care available to Mr. Trombetta, id. § 3553(a)(2)(D). That
analysis was more than sufficient to make an appeal on this ground frivolous, as
district courts “need not rehearse on the record all of the considerations that 18
U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why
(if the sentence lies outside it) this defendant deserves more or less.” United States
v. George, 403 F.3d 470, 472-73 (7th Cir. 2005).
Finally, counsel considers whether Mr. Trombetta might base his appeal on
the district court’s refusal to grant his request for a sentence below the guidelines
range. Counsel suggests that we lack jurisdiction even to consider the court’s
discretionary decision to not grant this request, which would have been characterized
as a motion for a downward departure before Booker, but counsel is incorrect. We
repeatedly have held that “the concept of ‘departures’ has been rendered obsolete in
the post-Booker world.” United States v. Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005);
see also United States v. Boscarino, 437 F.3d 634, 637 (7th Cir. 2006) (Booker
“abolished ‘departures’ by making the Guidelines advisory”); United States v.
Johnson, 427 F.3d 423, 425 (7th Cir. 2005). After Booker we must review all
sentences for reasonableness, and thus “we necessarily must scrutinize, as part of
that review, the district court’s refusal to depart from the advisory sentencing
range.” United States v. Vaughn, 433 F.3d 917, 924 (7th Cir. 2006). Regardless, we
agree that it would be frivolous for Mr. Trombetta to argue in this case that the
sentencing court was compelled to impose a sentence below the advisory guideline
range.
Mr. Trombetta first asked the district court to grant him sentencing
consideration for diminished mental capacity that “contributed substantially to the
commission of the offense,” see U.S.S.G. § 5K2.13, but the district court heard fom
multiple experts and found after a lengthy discussion of their testimony that Mr.
Trombetta’s mental capacity was not so impaired that it would have justified a
sentence below the advisory guidelines range. Mr. Trombetta also argued for a
No. 05-1676 Page 5
reduced sentence based on what he characterized as the arresting officers’ use of
excessive force, but the district court reasoned that, if officers did use excessive force,
then a civil suit rather than sentencing consideration would be the appropriate
remedy. Mr. Trombetta also requested a reduction in his sentence because he
believed his criminal history category overrepresented the seriousness of his criminal
history, see U.S.S.G. § 4A1.3(b)(1), although the calculation he proposed would not
have taken him out of Criminal History Category V. He also argued that his
voluntary participation in post-offense rehabilitation through therapy sessions
justified a lower sentence because his therapist informed the court that he “diligently
addressed issues in his life that had impaired his judgment and overall well-being.”
But Mr. Trombetta’s sentence was within the advisory guidelines range, which gives
it a presumption of reasonableness, see United States Mykytiuk, 415 F.3d 606, 607-08
(7th Cir. 2005), and the court’s rejection of his arguments does not rebut that
presumption, see United States v. Cunningham, 429 F.3d 673, 679-80 (7th Cir. 2005)
(“If the judge could, without abusing his discretion, have ruled in the defendant’s
favor, the defendant is entitled to insist that the judge exercise discretion, though he
cannot complain if the exercise goes against him.”); United States v. Gipson, 425 F.3d
335, 337 (7th Cir. 2005). Accordingly, it would be frivolous to press on with an
appeal based on this or any other issue identified by counsel.
For the reasons set forth above, we GRANT the motion to withdraw and
DISMISS this appeal.