David H. Swanson v. United States , 692 F.3d 708 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2338
D AVID H. S WANSON,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cv-01180—Sarah Evans Barker, Judge.
A RGUED O CTOBER 24, 2011—D ECIDED A UGUST 22, 2012
Before SYKES and T INDER, Circuit Judges, and D EG UILIO ,
District Judge. Œ
T INDER, Circuit Judge. David Swanson alleges in a 28
U.S.C. § 2255 petition that his trial counsel abandoned a
poorly developed but winning objection at sentencing that
Œ
The Honorable Jon E. DeGuilio of the United States
District Court for the Northern District of Indiana, sitting by
designation.
2 No. 11-2338
justifies a finding of ineffective assistance of counsel.
But Swanson’s trial counsel did not abandon the objec-
tion; rather, his appellate counsel failed to raise it on
direct appeal. Swanson does not challenge his appellate
counsel’s effectiveness, and because trial counsel raised
the objection in a sentencing memorandum (twice)
and never withdrew it, we cannot conclude that his
performance was objectively deficient. We affirm the
denial of his petition.
I. Factual Background
A jury convicted Swanson of a number of fraud, tax,
and money laundering offenses after a three-week trial.
Swanson failed to appear for his January 2003 sen-
tencing hearing, but was apprehended as a fugitive in
Seattle the next month and sentenced in March 2003.
Importantly for this appeal, his presentence report (PSR)
recommended a four-level U.S.S.G. § 3B1.1(a) enhance-
ment for his purported status as an organizer-leader
of criminal activity, driving his total offense level to 34
with a 151-188 month guideline range. Swanson’s trial
counsel filed 13 pages of objections, including the fol-
lowing to the four-level § 3B1.1(a) enhancement in
two separate paragraphs of the objections:1
Adjustments for Role of the Offense: De-
fendant objects to any adjustment pursuant to
1
It appears that the objection was made twice because the
organizer-leader enhancement was applied to two separate
sets of conviction counts.
No. 11-2338 3
Section 3B1.1 as the evidence revealed there was
no criminal organization. The evidence did not
reveal any other participants in the scheme
alleged by the government.
Removing the § 3B1.1(a) enhancement would have pro-
duced an offense level of 30 and a guideline range of 97-121
months. Along with his other objections, Swanson’s
attorneys advocated for a 46-57 month range based on
adjusted offense levels of 22 for the wire fraud and
receipt of stolen money convictions and 23 for the tax
fraud and money laundering convictions.
A focus of Swanson’s sentencing hearing was his ob-
jection to the PSR’s use of the 2001 guidelines and whether
the variances between that version and the 1998 edition,
proposed by Swanson’s trial counsel, mattered. In the
midst of this discussion, this exchange took place
between the district judge and the defense counsel with
the Assistant U.S. Attorney (AUSA) interjecting at
one point:
Judge: . . . just tell me which paragraphs are dif-
ferent under the 1998 guidelines. Is it paragraph
50? Is it paragraph 51? Is it paragraph 52, et cetera?
[The numbers refer to numbered paragraphs in
the PSR.]
***
Judge: Any other changes?
Defense counsel: That’s 51. Then we’re looking
at, would be rhetorical paragraph 54.
4 No. 11-2338
Judge: Role in the offense? There would not be
a two level?
AUSA: I’m sorry, it’s 55, Your Honor. They had
four levels for aggravating role. And that’s not
included in the ‘98 guideline.
Judge: It’s not?
Defense counsel: That I saw. We don’t disagree
with page—or rhetorical paragraph 54.
Judge: 3[B]1.1(a)?
Defense counsel: Right.
Judge: Do you agree there’s a four level increase
there?
Defense counsel: Yes.
Judge: I remember a four level increase forever.
So I was right on that. So we’re just talking about
paragraph 51 so far?
Defense counsel: Right.
***
Defense counsel: Judge, we think that when you
recalculate under the ‘98 guidelines that you
come to a base offense level of 22.2
The district judge overruled the objection to using
the 2001 guidelines and announced that “unless there’s
2
Given this comment’s context, we have no doubt that
counsel was actually referring to the adjusted offense level as
proposed in the written objections.
No. 11-2338 5
something in there I don’t know about” the court and
counsel had addressed the objections relating “to
counsel’s interpretation of the applicability of the guide-
lines.” The defense counsel agreed that the court under-
stood Swanson’s position on the differences between
the two versions of the guidelines. The district judge
summarized the objection as Swanson’s view that the
1998 guidelines should have been used and overruled
the objection. The judge then touched on an unrelated
objection and announced “I think that’s all according to
my notes. Do you know of any others that I have not
covered that I need to make a specific ruling on?” Defense
counsel said, “No, Your Honor.” The district judge
then announced that the guideline offense level was 34,
and asked defense counsel whether he agreed “with that
computation without waiving any of your other legal
objections?” S.A. 159 (emphasis supplied). Counsel’s
response was, “Yes, Your Honor.” The district judge
then stated that the PSR “is a correct application of the
guidelines in my judgment. The objections that have
been interposed have been overruled and so I would
use this formulation as my own, and it will be the basis
on which the remaining sentencing decisions are made.”
Swanson was sentenced to 180 months’ imprisonment.
Swanson appealed, replacing his trial counsel with
new counsel who represented him in his first appeal, at
resentencing, in a second appeal, and in the § 2255 pro-
ceeding that is now before this court. (To avoid confu-
sion, we will hereafter refer to counsel who repre-
sented Swanson through the initial sentencing as “trial
counsel.”)
6 No. 11-2338
On appeal, we agreed with the government’s conces-
sion that the district court erred in using the 2001 guide-
lines and the error was not harmless because the 1998
version produced a range of 121-151 months. We ad-
dressed various other issues and remanded for re-
sentencing under the 1998 guidelines and for any recal-
culation that might be necessary in light of the then-
pending United States v. Booker, 543 U.S. 220 (2005) decision.
We noted that depending on Booker’s outcome (decided
five days later), the court may need to reconsider the
other enhancements “including the enhancement for
the sophisticated means employed during the commis-
sion of the crime (U.S.S.G. § 2B1.1(b)(8)(C)), for abuse of
a position of trust (U.S.S.G. § 3B1.3), and for extensive
criminal activity (U.S.S.G. § 3B1.1(a)).” United States v.
Swanson, 394 F.3d 520, 526 n.1 (7th Cir. 2005) (Swanson I)
(citing a prior version of the guidelines).
At Swanson’s second sentencing, the district judge
recognized that the Booker decision governed and that
the new guideline calculation of 121-151 months played
a role in calculating a new sentence. The revised PSR
retained the four-level § 3B1.1(a) enhancement and pro-
posed a total offense level of 32. Swanson’s counsel ob-
jected to the § 3B1.1(a) enhancement, among others,
because he contended that the evidence did not show
that others were culpable in Swanson’s crime and there-
fore he could not be an organizer. Without the four
levels added because of § 3B1.1(a), Swanson’s guideline
range would have been 78-97 months. After discussing
with the AUSA the evidence of the participation of
others, the district judge denied Swanson’s objec-
No. 11-2338 7
tion to the § 3B1.1(a) enhancement but also rejected
the government’s argument for a 180-month sentence
and imposed a 151-month sentence. Swanson appealed
again.
But unlike his first appeal, Swanson raised an objec-
tion (among others) to the § 3B1.1(a) enhancement. We
refused to consider the argument because it was not
raised in the first appeal, and thus, had been waived. See
United States v. Swanson, 483 F.3d 509, 514 (7th Cir. 2007)
(Swanson II) (stating that “any issue that could have
been but was not raised on appeal is waived and thus
not remanded” (quoting United States v. Husband, 312
F.3d 247, 250-51 (7th Cir. 2002))). We also noted that
Swanson had not made the § 3B1.1(a) argument “at the
first sentencing hearing,” id. at 511, but as we explain
below, this comment was both inaccurate and dictum.
Although we had mentioned in Swanson I that the
district court might need to consider § 3B1.1(a)’s applica-
tion depending on Booker’s outcome, “that contingency
did not come to pass.” Swanson II, 483 F.3d at 515. Thus,
the “district court did not have to revisit its decision
to impose the aggravating role adjustment” because
“any factual dispute as to its application” went beyond
our remand’s scope. Id. And “Swanson ‘cannot use
the accident of a remand to raise in a second appeal an
issue that he could just as well have raised in the
first appeal.’ ” Id. (quoting United States v. Parker, 101
F.3d 527, 528 (7th Cir. 1996)).
Swanson filed a 28 U.S.C. § 2255 petition maintaining
that there was no evidence to support a § 3B1.1(a) en-
8 No. 11-2338
hancement, that trial counsel “filed an unelaborated
objection to this proposed finding,” and that at sentencing
“they withdrew the objection” in a way that failed to
preserve it for review on his first appeal. Swanson
blamed our refusal to review this issue in Swanson II
on “the failure of my attorneys at the first sentencing
hearing.” A hearing on the § 2255 petition was held
and trial counsel was deposed about the sentencing
matters. The deposition was introduced into evidence
in the § 2255 proceeding. In the deposition, trial counsel
denied withdrawing or abandoning the § 3B1.1(a) objec-
tion. Trial counsel suggested that his comment agreeing
that “there’s a four level increase there” affirmed that
both the 1998 and the 2001 guidelines provided a four-
level enhancement for § 3B1.1(a). He also said that he
assumed the court reads written objections and that
“I don’t normally go down in sentencing and argue
every point unless the Court directs its attention to that
particular point.” After reviewing the transcript of the
initial sentencing hearing, trial counsel said that the
district judge indicated she overruled “all the objec-
tions that we previously had made to the sentencing
guidelines” when she said that the PSR “is a correct
application of the guidelines in my judgment. The ob-
jections that have been interposed have been overruled.”
Trial counsel stated that he believed the written objec-
tion spoke for itself and he did not develop it because
the district judge did not direct him to. “I don’t tell
her how to run her court or how to run her sentencing
hearings. I’m there to object, speak on behalf of my
client, and present argument as required, which I did.”
No. 11-2338 9
The district judge found in denying Swanson’s § 2255
motion that at the time of sentencing, she “understood
that Swanson’s counsel was waiving his previously
advanced written objection to the four-level enhance-
ment under 3B1.1(a). The 3B1.1(a) enhancement was
not discussed again at the original sentencing hearing;
this exchange was the only mention of it.” Swanson v.
United States, No. 1:08-cv-1180, 2011 WL 2150139, *16
(S.D. Ind. May 25, 2011). But the district judge then
wrote that “after reviewing the sentencing transcript, in
hindsight, this court believes that Mr. Voyles intended
his affirmative response to the question (“Do you
believe there’s a four level increase[?]”), which occurred
during an admittedly fast paced colloquy, to reflect that
he did not object to the two level enhancement pro-
vided for in paragraph 54 of the PSR pursuant to
§ 3B1.3.” Id. (emphasis in original). The district judge
found that trial counsel “clearly” did not “intentionally
waive or forfeit” the objection to the § 3B1.1(a) enhance-
ment, that he “vigorously and extensively advanced
Swanson’s interests,” and that therefore his advocacy
was “well within the ‘wide latitude of permissible
attorney conduct.’ ” Id. at *17 (quoting Washington v.
Smith, 219 F.3d 620, 627 (7th Cir. 2000)). She then found
that the guideline calculation improperly included the
§ 3B1.1(a) enhancement because the government never
identified another criminally responsible person. Id.
at *18. But the district judge also found that Swanson
didn’t suffer any prejudice because she was persuaded
that his sentence would not have been less without the
§ 3B1.1(a) enhancement because it was “reasonable
10 No. 11-2338
and thus independently justifiable as an upward
departure from the guideline’s range.” Id. at *19. We
granted Swanson a certificate of appealability to con-
sider whether trial counsel was ineffective at sentencing.
II. Analysis
In reviewing the denial of a § 2255 motion, we look
for clear error in factual findings but examine legal deter-
minations de novo. Wyatt v. United States, 574 F.3d 455,
457 (7th Cir. 2009). To obtain relief, Swanson must show
that his “sentence was imposed in violation of the Con-
stitution or laws of the United States, the court lacked
jurisdiction, the sentence was greater than the maxi-
mum authorized by law, or it is otherwise subject to
collateral attack.” Torzala v. United States, 545 F.3d 517,
521 (7th Cir. 2008) (internal quotations omitted). The
Sixth Amendment’s right to the effective assistance
of counsel provides § 2255 relief when counsel’s perfor-
mance “was objectively deficient—in other words, that
it fell outside the wide range of competent representa-
tion—and that [the defendant] was prejudiced by the
subpar representation.” United States v. Jones, 635 F.3d
909, 915 (7th Cir. 2011). There is a “strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Wyatt, 574 F.3d at 458
(quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
But “an attorney’s unreasonable failure to identify and
bring to a court’s attention an error in the court’s Guide-
lines calculations that results in a longer sentence
No. 11-2338 11
may constitute ineffective assistance entitling the defen-
dant to relief.” Jones, 635 F.3d at 916.
Swanson claims that his trial counsel submitted woefully
under-developed written objections to the § 3B1.1(a)
enhancement and then withdrew a winning objection to
the § 3B1.1(a) enhancement, resulting in a failure to
preserve the issue for his first appeal.
We conclude that the written objections to the applica-
tion of the § 3B1.1(a) enhancement were not insuf-
ficiently developed. Given that the government bore the
burden of proof on this issue, see, e.g., United States v.
Gracia, 272 F.3d 866, 877 (7th Cir. 2001), we question
what else the written objections should have said other
than Swanson “objects to any adjustment pursuant to
Section 3B1.1 as the evidence revealed there was no
criminal organization. The evidence did not reveal any
other participants in the scheme alleged by the govern-
ment.” Section 3B1.1(a) applies where a defendant is
an “organizer or leader” of a “criminal activity that in-
volved five or more participants or was otherwise ex-
tensive.” Counsel for Swanson essentially argued, albeit
in written form only, that because his crime involved no
other criminal participants, he could not fall within
this language. We have warned that arguments on
appeal that are “perfunctory and undeveloped” and
“unsupported by pertinent authority,” are subject to
waiver. See United States v. Holm, 326 F.3d 872, 877 (7th
Cir. 2003). But in the context of sentencing objections
before a district judge, we have not necessarily even
required trial counsel to present fully developed or even
well-articulated objections to preserve them for appeal.
12 No. 11-2338
See, e.g., United States v. Black, 636 F.3d 893, 898 (7th Cir.
2011) (no waiver because although defendant “may
not have fully developed nor articulately presented the
exact argument below, he did raise the issue, citing to
relevant authority in his sentencing memorandum and
attaching pertinent documents”). The written objection
(though perhaps not elaborate) was sufficient to raise
an argument that the government had not shown that
his criminal activity either involved “five or more par-
ticipants” or was “otherwise extensive.” Thus, the
written objection was not outside the “wide range
of professionally competent assistance.” Wyatt, 574 F.3d
at 458.
Of course, trial counsel may affirmatively waive an
objection, which is what Swanson alleges his counsel
did. In Swanson II, we noted that Swanson failed to
make an argument against the application of the § 3B1.1(a)
four-level enhancement “at the first sentencing hearing,”
483 F.3d at 511, but we never discussed whether
this particular failure to raise the § 3B1.1(a) objection
at the sentencing hearing constituted waiver for purposes
of the appeal. Thus, that comment was made in dictum;
our finding of waiver in Swanson II rested on Swanson’s
failure to raise the objection on his initial direct appeal.
843 F.3d at 514-15. Now with the benefit of a more thor-
ough record in this § 2255 proceeding, we conclude
that the district court did not err in finding that trial
counsel did not waive the § 3B1.1(a) objection. And
while no oral argument was made by trial counsel
about the organizer-leader objection at the first sen-
No. 11-2338 13
tencing, our comment in Swanson II did not accurately
assess the full state of the record regarding that objection.
The record supports the district judge’s finding that
Swanson did not waive the § 3B1.1(a) objection. She
found that although she understood, at that particular
time, that trial counsel intended with this statement to
be “waiving his previously advanced written objection
to the four-level enhancement under 3B1.1(a),” her
review of the transcript indicated otherwise. Swanson,
2011 WL 2150139, at *16. The district judge found that
trial counsel intended his response to the question
about the four-level increase to “reflect that he did not
object to the two level enhancement provided for” under
U.S.S.G. § 3B1.3 (abuse of a position of trust). This is
consistent with the written objection in which trial
counsel wrote that the “evidence could be construed to
support an adjustment for the defendant abusing his
position of trust . . . .” The record also supports trial
counsel’s reading that his comment “there’s a four level
increase there” merely affirmed his agreement with the
district judge that the 1998 and the 2001 guidelines
both provided a four-level enhancement for § 3B1.1(a).
Trial counsel made this comment after the judge ques-
tioned the AUSA’s inaccurate statement that the four-
level enhancement was not included in the 1998 guide-
lines. Defense counsel agreed with the judge that “there’s
a four level increase there,” prompting the judge to
say, “I remember a four level increase forever. So I was
right on that.”
Ignoring the colloquy’s context, Swanson advances an
implausible interpretation: his trial counsel waived
14 No. 11-2338
his objection to the § 3B1.1(a) enhancement. The record
simply doesn’t support this interpretation. His attorney’s
subsequent statement that he believed that calculating
Swanson’s sentence under the 1998 guidelines produced
an “offense level of 22” refutes any argument that he
waived the § 3B1.1(a) objection because had he waived
the objection, Swanson’s proposed offense level would
have been 26. There is simply no way to get the
offense level as low as 22 without maintaining an objec-
tion to the organizer-leader enhancement. And at the
end of the guideline computation discussion at the
initial sentencing, the district judge asked the defense
counsel whether he agreed “with that computation with-
out waiving any of your other legal objections?” His
response, “Yes, Your Honor,” indicates that he wasn’t
waiving any of his written objections.
Given this record, we do not find a waiver of the
§ 3B1.1(a) objection. We construe waiver principles liber-
ally “in favor of the defendant.” United States v. Anderson,
604 F.3d 997, 1002 (7th Cir. 2010). Even an attorney’s
“statement that a defendant has no objection to the
PSR does not automatically constitute a waiver.” United
States v. Garcia, 580 F.3d 528, 542 (7th Cir. 2009); see also
United States v. Allen, 529 F.3d 390, 394-95 (7th Cir. 2008)
(no waiver even though defendant did not restate his
objection and answered “No, I don’t” to the question of
whether he had any objections). We have similarly de-
clined to find waiver even though defendant’s counsel
“ultimately posed no objection” and “assented to it by
remarking, ‘Okay, . . .that’s all I have.’ ” United States v.
Paul, 542 F.3d 596, 599 (7th Cir. 2008). Of course, the
No. 11-2338 15
circumstances can prompt a different result, United
States v. Rodgers, 610 F.3d 975, 979 (7th Cir. 2010)
(waiver because defendant failed to file an objection to
factual findings and when asked whether he had objec-
tions defendant’s counsel said “No, we do not”); United
States v. Venturella, 585 F.3d 1013, 1018-19 (7th Cir. 2009)
(waiver when counsel withdrew objections in a revised
memorandum and said that “she agreed with the figures
in the PSR”), but we will find waiver when there
are “sound strategic reasons” explaining why counsel
would “elect to pursue” a route “as a matter of strategy.”
See United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th
Cir. 2005); Anderson, 604 F.3d at 1001-02 (no “rigid
rule for finding waiver in acquiescence,” we evaluate
omissions individually, and when “the government
cannot proffer any strategic justification . . . we can
assume forfeiture”). Yet even Swanson recognizes that
his counsel “had nothing to gain by discarding a
winning argument to the enhancement,” see Br. of Peti-
tioner at 22-23, indicating that his trial counsel did not
intentionally relinquish the objection, see United States
v. Robertson, 662 F.3d 871, 874 n.2 (7th Cir. 2011)
(without a suggestion as to a “possible strategic justi-
fication” for failure to preserve issue we assume for-
feiture, not waiver).
Unlike United States v. Valenzuela, 150 F.3d 664, 668
(7th Cir. 1998), where counsel’s failure to be “careful in
making his concession to the court” justified waiver,
Swanson’s trial counsel made his statement regarding
the § 3B1.1(a) enhancement in the context of which
version of the guidelines applied. The context of this
16 No. 11-2338
comment controls, particularly where trial counsel af-
firmatively responded to the court’s question that he did
not waive any of his other legal objections, asserted an
adjusted offense level consistent with maintaining the
§ 3B1.1(a) objection, and had submitted the objection in
writing. The miscommunication between trial counsel
and the district judge is no basis for finding waiver.
Thus, the district court did not clearly err in finding
no waiver despite the confusing nature of the sen-
tencing colloquy and trial counsel’s failure to explicitly
and orally re-articulate the defendant’s § 3B1.1(a) objection.
Forfeiture is a closer question. As explained above, trial
counsel noted the objection in a written sentencing mem-
orandum. See United States v. Medina-Anicacio, 325
F.3d 638, 642 (5th Cir. 2003) (“[O]nce a party raises an
objection in writing, if he subsequently fails to lodge an
oral on-the-record objection, the error is nevertheless
preserved for appeal.”). Further, the district judge, trial
counsel, and the AUSA discussed the objection, albeit in
a confusing manner and limited to the differences
between the guideline editions. We recognize that even
when asked by the judge if there was anything more
that needed to be discussed with respect to his objec-
tions, trial counsel answered no. Certainly, the failure
to explicitly mention his § 3B1.1(a) objection at the sen-
tencing hearing is disconcerting, especially considering
that the judge had numerous objections to address
and understandably relied on counsel to inform her if
she missed one. But given that trial counsel made the
objection in writing, never withdrew it, continued to
argue for an adjusted offense level of 22, and affirma-
No. 11-2338 17
tively stated he was not waiving his objections, the
district court did not err in finding that there was no
forfeiture of the § 3B1.1(a) objection, even if his presenta-
tion was less than ideal.
But even if Swanson had forfeited the § 3B1.1(a) argu-
ment, nothing prevented Swanson from raising the ar-
gument in his first appeal under plain error review.
Swanson argues that the forfeiture was an “obvious
failure of advocacy that had a substantial impact on
[Swanson’s] sentence,” which if correct, would likely
satisfy plain error review.3 In fact, we have suggested
that the standard for plain error review and ineffective-
assistance-of-counsel are comparable, and in some re-
spects, plain error review may be less demanding. See
United States v. Remsza, 77 F.3d 1039, 1044 (7th Cir. 1996)
(noting that prejudice prongs of both tests are nearly
identical); United States v. Caputo, 978 F.2d 972, 975 (7th
Cir. 1992) (stating that the plain-error doctrine is not
confined to blatant errors and that if it were, it would
be virtually coextensive with the doctrine of ineffective
assistance of counsel); see also Gordon v. United States,
518 F.3d 1291, 1300 (11th Cir. 2008) (noting that “the
‘deficient performance’ standard of an ineffective assis-
tance claim will not always be satisfied by the failure
3
Plain error requires a defendant to show “(1) an error; (2) that
is plain; (3) that affected his substantial rights; and (4) that
seriously affects the fairness, integrity, or public reputation of
the judicial proceedings.” United States v. Guajardo-Martinez,
635 F.3d 1056, 1059 (7th Cir. 2011) (quoting United States
v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004)).
18 No. 11-2338
to object to an obvious error”); United States v. Williams,
358 F.3d 956, 967 (D.C. Cir. 2004) (noting analogy
between prejudice standard in claims of plain error and
claims of ineffective assistance). “It would be nonsensical
if a petitioner, on collateral review, could subject his
challenge of an unobjected-to error to a lesser burden
by articulating it as a claim of ineffective assistance.”
See Gordon, 518 F.3d at 1298.
Of course there are circumstances in which trial
counsel is ineffective for forfeiting an issue, but those
circumstances are not present here. Trial counsel flagged
the issue in writing (twice) and, as we found, certainly
did not withdraw it at the sentencing hearing. Swanson’s
point that trial counsel should have redirected the
district judge’s attention to the § 3B1.1(a) objection is well-
taken but hardly the office of ineffective assistance of
counsel claims. See, e.g., Yu Tian Li v. United States, 648
F.3d 524, 527-28 (7th Cir. 2011) (reflecting the wide range
of competent legal strategies and to avoid hindsight
review’s pitfalls, we review an attorney’s performance
in a “highly deferential” manner and apply “a strong
presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance”);
Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011)
(measuring representation by whether the handling of a
§ 3B1.1(a) issue “could not be the result of professional
judgment” or whether it “amounted to incompetence
under prevailing professional norms, not whether it
deviated from best practices or most common custom”
(quoting Sussman v. Jenkins, 636 F.3d 329, 349 (7th
Cir. 2011))); United States v. Scanga, 225 F.3d 780, 784
No. 11-2338 19
(7th Cir. 2000) (finding “no reason to disrupt the pre-
sumption that Scanga’s attorney utilized his professional
judgment when choosing not to object to the PSR a second
time”). Swanson’s failure to show that his trial counsel’s
representation was objectively deficient means that we
do not have to address the prejudice prong.
III. Conclusion
We A FFIRM the judgment of the district court denying
Swanson’s § 2255 petition.
8-22-12