Isaiah Hicks v. United States , 886 F.3d 648 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2592
ISAIAH HICKS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15-CV-3078 — James B. Zagel, Judge.
____________________
ARGUED FEBRUARY 28, 2018 — DECIDED APRIL 2, 2018
____________________
Before MANION, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. A jury found Isaiah Hicks guilty
of multiple drug offenses. He was sentenced to 360 months in
prison. After we upheld his convictions and sentence on di-
rect appeal, he filed a pro se motion under 28 U.S.C. § 2255claiming that that he had received ineffective assistance of
counsel. Hicks asserted that his attorney failed to explain to
him the breadth of conspiracy law, understated the evidence
against him, and failed to confer with him about pleading
2 No. 16-2592
guilty. Going to trial cost him a potential reduction in his of-
fense level at sentencing, Hicks claimed, which would have
lowered his recommended guideline range and ultimate sen-
tence. The district court denied the § 2255 motion without a
hearing. We affirm. Hicks’s argument that his attorney’s per-
formance prejudiced him is too speculative to require an evi-
dentiary hearing.
I. Factual and Procedural Background
Hicks led an organization that processed, packaged, and
sold drugs on Chicago’s south side. United States v. Long,
748 F.3d 322, 325 (7th Cir. 2014). A jury found him and four
co-defendants guilty of, among other offenses, conspiracy
with intent to distribute over 50 grams of crack cocaine. See 21
U.S.C. § 841(b)(1)(A). Hicks’s presentence investigation report
put his offense level at 46, corresponding to a guideline sen-
tence of life imprisonment. An offense level of 43 or higher
results in a guideline recommendation of life imprisonment,
even for defendants in criminal history category I. U.S.S.G.
Ch. 5, pt. A. An offense level of 42 would have produced a
range of 360 months to life for Hicks. At Hicks’s sentencing
hearing, the government requested a sentence of at least
30 years. Hicks’s attorney argued for 20.
The district judge observed at sentencing that “the proper
. . . offense level in this case probably is 45, but, of course the
table stops at 43 and I thought it was immaterial to decide”
the exact offense level. The judge noted that the “basic ques-
tion” was whether to impose life imprisonment. The judge
said that the recommended life sentence for Hicks would be
fair given the large quantity of drugs at issue and Hicks’s lead-
ership role in the drug-distribution organization. But the
judge decided to impose a below-guideline sentence of
No. 16-2592 3
360 months because he thought that Hicks was capable of re-
form.
After his unsuccessful direct appeal, Hicks moved under
28 U.S.C. § 2255 to vacate his sentence. In his motion and ac-
companying affidavit, Hicks asserted that his lawyer was in-
effective because he did not explain federal conspiracy law to
him and did not confer with him about the advantages of
pleading guilty versus going to trial. Hicks further claimed in
his reply brief that his lawyer had advised him that “there was
a strong chance at walking.” If the attorney had adequately
explained Hicks’s exposure from the conspiracy charge and
the benefits of pleading guilty, Hicks swore, he would have
pleaded guilty.
In response, the government argued that Hicks had failed
to show that his attorney’s actions prejudiced him because the
§ 2255 motion was not supported by evidence showing that
the prosecutor had offered Hicks a plea agreement. The dis-
trict judge agreed with the government and denied Hicks’s
motion without an evidentiary hearing. The judge reasoned
that a guilty plea offered without any agreement would have
had “no value” to Hicks. The scenario Hicks proposed—that
his sentence would have been shorter if he had received an
offense-level reduction for acceptance of responsibility—
“would not have reduced the guideline range [below]
360 months to life.”
We granted Hicks a certificate of appealability under
28 U.S.C. § 2253(c)(2) on the issue whether he had been denied
effective assistance of counsel if, as he says, his lawyer failed
to inform him about the benefits of pleading guilty without a
plea agreement.
4 No. 16-2592
II. Analysis
On appeal, Hicks argues that he was entitled to an eviden-
tiary hearing on whether his lawyer was ineffective. A hearing
is required unless the record conclusively shows that the mo-
vant is not entitled to relief. 28 U.S.C. § 2255(b); Sawyer
v. United States, 874 F.3d 276, 278 (7th Cir. 2017). We review the
denial of an evidentiary hearing for abuse of discretion, Gal-
braith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002), so the
issue is whether the district court abused its discretion by
finding “conclusively” that Hicks could not establish ineffec-
tive assistance of counsel.
To demonstrate ineffective assistance of counsel, Hicks
must show that his attorney’s performance was objectively de-
ficient and that the deficient representation caused him prej-
udice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Gal-
braith, 313 F.3d at 1008. Because “a court need not determine
whether counsel’s performance was deficient before examin-
ing the prejudice suffered by the defendant as a result of the
alleged deficiencies,” Strickland, 466 U.S. at 697, we address
only the issue of prejudice and the speculative nature of any
benefit to Hicks from a guilty plea.
The test for prejudice is whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strick-
land, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. Hicks
points out that the district judge said incorrectly in the order
denying post-conviction relief that his guideline range was
“360 months to life,” because it had actually been life impris-
onment. The judge’s conclusion that a reduction in Hicks’s of-
fense level could not have moved him into a lower range,
No. 16-2592 5
Hicks continues, was necessarily wrong because it was based
on a faulty premise.
Hicks argues that there is a reasonable probability that a
“blind” guilty plea (without a plea agreement) would have
led to a sentence lower than 360 months. Assuming that his
base offense level was 45, he asserts that the three-point re-
duction he would have received under U.S.S.G. § 3E1.1 in ex-
change for a blind guilty plea would have left him with an
offense level of 42 and a guideline range of 360 months’ to life
imprisonment. This demonstrates sufficient prejudice, Hicks
argues, because there was “a reasonable probability” he
would have been sentenced to even less prison time. See gen-
erally Missouri v. Frye, 566 U.S. 134, 147 (2012). Moreover, he
notes, in a direct appeal, revealing an error in his guideline
range would often be enough to merit a new sentencing. See
Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016).
We conclude that Hicks’s argument is too speculative.
Working from (1) the mistaken premise of an offense level of
45, Hicks assumes that by entering a blind plea, (2) he would
have met the requirements for the two-point acceptance-of-
responsibility adjustment, and (3) he would have made the
plea in time and in a fashion that would have secured the gov-
ernment’s agreement to the third point, and (4) that the judge
then would have sentenced him below that lower guideline
range. This path to potential relief involves too much conjec-
ture.
First, Hicks cannot show that 45 was the correct offense
level. As the government points out, according to the proba-
tion officer, Hicks’s base offense level was 46, not 45. With a
base offense level of 46, even a full three-point reduction
6 No. 16-2592
would have given Hicks a new offense level of 43. His guide-
line sentence recommendation would have remained life im-
prisonment. U.S.S.G. Ch. 5, pt. A. This forecloses any showing
of prejudice. Hicks’s entire argument relies on the judge’s
statement that his offense level was “probably” 45. But that
was evidently a slip of the tongue. The judge never indicated
that he was disagreeing with the presentence investigation re-
port’s calculation of 46, let alone explained why he might have
disagreed. At most, the question of Hicks’s base offense level
was left unanswered because it was irrelevant based on
Hicks’s criminal history category of IV and the facts of his
case.
Second, even taking Hicks’s argument at face value, there
is no evidence that he would have met the requirements for
the two-point reduction. Though the two questions are con-
nected, the reduction is for accepting responsibility, not
simply pleading guilty. And as the presentence investigation
report states, there is no information “indicating that [Hicks]
affirmatively accepted responsibility for his conduct.” Even
now, Hicks does not declare that he accepts responsibility, so
there is no reason to believe that he in fact does and would
have said so before his trial.
Third, there is even less reason to think that if Hicks had
entered a timely blind guilty plea, the government would
have moved under U.S.S.G. § 3E1.1(b) for the third point.
Without a government motion, the point could not be
awarded. See United States v. Nurek, 578 F.3d 618, 624 (7th Cir.
2009). Many factors go into the government’s decision. For ex-
ample, in one case the government refused to move for the
third point because the defendant pleaded guilty to only one
No. 16-2592 7
of the counts against him and showed no remorse. Id. In an-
other, the government did not move for the third point be-
cause the defendant had been unclear about his intention to
plead until late in the government’s trial preparation. United
States v. Davila-Rodriguez, 468 F.3d 1012, 1014–15 (7th Cir.
2006). Where defendants pleaded guilty but refused to give
the government “a full and complete accounting of [their]
own offense conduct” we condoned the government’s posi-
tion that “granting acceptance points would be inappropri-
ate.” United States v. Boyle, 484 F.3d 943, 945 (7th Cir. 2007).
Without a reduction of three points, Hicks would have been
in the same position: a guideline recommendation of life,
see U.S.S.G. Ch. 5, pt. A, even assuming a (mistaken) starting
offense level of 45.
Fourth and finally, Hicks argues that any change in his rec-
ommended guideline range likely would have changed his
sentence because it would have pushed the district court to
impose a shorter sentence. See Molina-Martinez, 136 S. Ct. at
1345. It is true that the guideline recommendation of life im-
prisonment was the district judge’s “starting point and initial
benchmark.” Id., quoting Gall v. United States, 552 U.S. 38, 49
(2007) (internal ellipsis and quotation marks omitted). But un-
like in Molina-Martinez, there was no error here, only Hicks’s
assertion that perhaps circumstances could have been differ-
ent. Unlike demonstrating an error in the guideline calcula-
tion, speculating about what might have been is not sufficient
to show a reasonable probability of a different outcome.
Given the facts the district judge found important at sen-
tencing, there is barely a theoretical possibility, let alone a
“reasonable” probability, that the judge would have imposed
a sentence shorter than 360 months. The “basic question” for
8 No. 16-2592
the judge was “whether [he would] impose life imprison-
ment,” and he “would’ve imposed life imprisonment if [he]
had thought that Hicks . . . would not change or had no chance
at changing.” The judge varied downward from life to
360 months only because he believed Hicks capable of reform.
There is no reason to believe that the judge would have varied
even further downward if the low end of the guideline range
had been 360 months; all indications are that 30 years was the
sentence he thought was appropriate under 18 U.S.C.
§ 3553(a).
Whether Hicks’s offense level was 45 or 46, his claim of
prejudice is insufficient to entitle him to an evidentiary hear-
ing. See George v. Smith, 586 F.3d 479, 486 (7th Cir. 2009)
(“Speculation based on hindsight” insufficient to show inef-
fective assistance). In any event, the only evidence that Hicks
says he could have presented is his testimony that if counsel’s
advice had been different, he would have pleaded guilty. But
the district judge read this assertion in Hicks’s affidavit, and
Hicks could not offer evidence that he would have received a
three-point reduction if he had entered a blind guilty plea.
Hicks did not allege facts that, if proven, would have entitled
him to relief, so our inquiry ends here with the issue of preju-
dice. See Strickland, 466 U.S. at 697.
AFFIRMED.