United States v. Mario Reeves , 695 F.3d 637 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2328
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARIO R EEVES, also known as R IO ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cr-00614-2—Joan B. Gottschall, Judge.
A RGUED A PRIL 3, 2012—D ECIDED A UGUST 20, 2012
Before B AUER, P OSNER and K ANNE, Circuit Judges.
B AUER, Circuit Judge. A federal jury convicted the
defendant-appellant, Mario Reeves, of several crimes,
including conspiracy and distribution of heroin. On
May 20, 2011, the district court sentenced Reeves to
25 years in prison to run concurrently with a separate,
lesser sentence of 8 years. At the sentencing hearing,
the district court applied a statutory enhancement to
Reeves’ sentence due to a prior state conviction. See 21
U.S.C. § 851. Reeves objected to that enhancement and
appeals his sentence. Finding no error, we affirm.
2 No. 11-2328
I. BACKGROUND
In 2007, Mario Reeves was arrested for his role in a
heroine distribution ring known as the Poison Line. He
was indicted for several crimes committed under 21
U.S.C. §§ 841, 846, and 843, and he pleaded not guilty.
The case went to trial, and a jury convicted him on
all counts.
Prior to trial, the government informed the court and
Reeves that it would seek an enhancement pursuant to
21 U.S.C. § 851 of any sentence resulting from a guilty
verdict; Section 851 requires the government to give
notice of a request for a sentencing enhancement for
certain predicate criminal offenses. Reeves had a prior
drug offense. In 2004, he had pleaded guilty in Illinois
state court to possession and sale of cocaine. This
crime qualifies as a predicate offense under the statute
and triggered the sentencing enhancement at issue in
this case.
Reeves objected to the government’s pursuit of the
enhancement. He claimed that the attorney rep-
resenting him during his 2004 guilty plea in state court
did not inform him that a guilty plea could be used
against him later to trigger a statutory sentencing en-
hancement in federal court. As a result, he argued, the
attorney had provided ineffective assistance of counsel
in the state court proceedings, running afoul of the Sixth
and Fourteenth Amendments to the Constitution. See
Strickland v. Washington, 466 U.S. 668 (1984). Thus, he
claimed, the state conviction is constitutionally infirm
and cannot be used against him now for an enhance-
ment of his federal sentence.
No. 11-2328 3
The district court applied the § 851 enhancement
over Reeves’ objections, and he renews his argument
on appeal.
II. DISCUSSION
We begin by noting that this is a permissible although
unusual method to launch a collateral attack on a prior
conviction. Reeves is correct that if a prior state con-
viction was established in violation of the Sixth Amend-
ment, that conviction cannot be counted to enhance a
later sentence. See United States v. Feliciano, 498 F.3d 661,
664 (7th Cir. 2007); see also 21 U.S.C. § 851(c)(2). We will
therefore review Reeves’ state court conviction from
2004 for the limited purpose of determining whether it
was permissible for the district court to count it toward
a § 851 sentence enhancement.
We review the facts underlying a sentencing challenge
for clear error and review any surrounding question of
law de novo. See United States v. Patterson, 576 F.3d 431,
442-43 (2009). Here, we are presented with a pure legal
question: whether federal law requires an attorney to
advise his client that a guilty plea may expose the client
to potential sentencing enhancements for any future
convictions.
The Supreme Court has held that the Sixth Amend-
ment guarantees criminal defendants not just the right
to counsel, but the right to effective assistance of coun-
sel. Strickland, 466 U.S. at 686. To prove that counsel was
ineffective in the context of a guilty plea, a defendant
4 No. 11-2328
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.” Bethel v. United States,
458 F.3d 711, 716 (7th Cir. 2006) (citing Hill v. Lockhart,
474 U.S. 52, 59 (1985)).
Reeves argues that it was objectively unreasonable
under Strickland for his attorney in the state court pro-
ceedings to fail to advise him about the later effect of a
guilty plea on the potential sentence for any future
crimes. He believes that a recent Supreme Court deci-
sion, Padilla v. Kentucky, mandates this conclusion. 130
S. Ct. 1473 (2010). We disagree.
The Padilla case involved an immigrant, Jose Padilla,
who pleaded guilty in state court to drug-related offenses.
Id. at 1477-78. His attorney failed to advise him that as
a result of that guilty plea, he would likely be deported
from the United States. Id. at 1478. Faced with deporta-
tion, Padilla challenged his state conviction, alleging
ineffective assistance of counsel. Id. The Supreme Court
held that Padilla satisfied the first prong of Strick-
land—his attorney’s performance was objectively unrea-
sonable—and it held for the first time that “counsel
must inform her client whether his plea carries a risk
of deportation.” Id. at 1482-83, 1486.
The Court also declined to categorize deportation as a
“direct” or “collateral” consequence of a guilty plea, id.
at 1481, although many lower courts have used this
No. 11-2328 5
method of categorization to determine whether an
attorney has a Sixth Amendment duty to inform his
client of a relevant consequence. See, e.g., Chaidez v. United
States, 655 F.3d 684, 690-92 (7th Cir. 2011) (explaining
the distinction and listing some circuits that have em-
ployed it); Bustos v. White, 521 F.3d 321, 325-26 (4th
Cir. 2008) (categorizing parole eligibility as a collateral
consequence of a plea). The idea is that counsel has a
constitutional duty to inform his client of direct conse-
quences of his guilty plea; but if a consequence is merely
collateral to a plea of guilty—in other words, if it is an
incidental or loosely related result of the plea—counsel
has no duty to mention it. See Chaidez, 655 F.3d at 691-
92. Although the Supreme Court declined to apply
this distinction to deportation in Padilla, it was also
careful to note that it would not answer whether the
distinction was an appropriate one for other inef-
fective assistance of counsel claims. 130 S. Ct. at 1481
(“Whether the distinction is appropriate is a question
we need not consider in this case because of the unique
nature of deportation.”) (emphasis added).
Indeed, Padilla is rife with indications that the
Supreme Court meant to limit its scope to the context
of deportation only. The Court repeatedly underscored
the severity of deportation before deciding that an
attorney must always inform his client of that unique
risk. Id. at 1480-81, 1486. While recognizing the im-
portance of the Sixth Amendment right to counsel gener-
ally, the court also stressed “the seriousness of deporta-
tion as a consequence of a criminal plea, and the con-
comitant impact of deportation on families living
6 No. 11-2328
lawfully in this country” as a rationale for the rule. Id.
at 1486.
In this case, we deal not with deportation, but with
the possibility of an enhanced sentence for future
criminal conduct. This court already ruled on this exact
issue in Lewis v. United States, although in Lewis, we
relied partially on a prior case involving deportation
that is now overruled by Padilla. See Lewis, 902 F.2d 576,
577 (7th Cir. 1990) (citing Santos v. Kolb, 880 F.2d 941(7th Cir. 1989), overruled by Padilla v. Kentucky, 130 S. Ct.
1473 (2010)). Nevertheless, because of the limited
scope of Padilla (discussed above), our conclusion about
future punishment in Lewis remains sound. As we
noted, “deportation is a consequence of this [the
instant] conviction; enhancement depends on the defen-
dant’s deciding to commit future crimes.” 902 F.2d at 577
(emphasis in original). Put simply, there is no automatic
consequence to the guilty plea in this case. Any risk
present at the time Reeves pleaded guilty in state court
in 2004 was entirely contingent on his deciding to
commit more crime in the future.
We pause for a moment to consider the absurd ramifica-
tions of the rule that Reeves asks us to create. Using
Padilla as a springboard, we would be forced to hold
that counsel has a constitutional duty to advise the client
as to how he might best continue his criminal activity
while minimizing his risk of future punishment. This
would not only represent unattractive public policy, it
finds no support in precedent. The Supreme Court
created a rule in Padilla specific to the risk of deportation,
No. 11-2328 7
and we see no justification for extending that to the
realm of future criminal sentence enhancements.
We thus find that it was not unreasonable under Strick-
land for Reeves’ attorney in the 2004 proceedings to fail
to advise his client that a guilty plea could result in
a later sentencing enhancement for a future crime.
Because the 2004 guilty plea was constitutionally sound,
there was nothing improper about the enhancement
that the district court applied under 21 U.S.C. § 851.
III. CONCLUSION
For the aforementioned reasons, we A FFIRM the dis-
trict court’s sentence.
8-20-12