Lance Foster v. United States , 735 F.3d 561 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1961
LANCE FOSTER,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 09-C-415 — Rudy Lozano, Judge.
ARGUED MAY 30, 2013 — DECIDED OCTOBER 30, 2013
Before SYKES and HAMILTON, Circuit Judges, and
STADTMUELLER, District Judge.*
STADTMUELLER, District Judge. The appellant, Lance Foster,
was charged with distributing crack cocaine and a separate
conspiracy-to-distribute charge. Against the advice of his
*
The Honorable J.P. Stadtmueller of the Eastern District of
Wisconsin, sitting by designation.
2 No. 12-1961
appointed counsel, Visvaldis Kupsis, Mr. Foster rejected two
proposed plea agreements, both of which would have resulted
in a sentence of close to twenty years imprisonment. Atty.
Kupsis was particularly concerned with this decision, because
Mr. Foster faced a possibility of a life sentence, if he was
convicted of the conspiracy charge at trial. Undeterred, Mr.
Foster decided to take the case to trial. Only ten days before his
trial was scheduled to begin, the Government filed an informa-
tion, pursuant to Title 21, Section 851, of the United States
Code, stating that Mr. Foster had a prior felony drug convic-
tion. The effect of filing this information was to increase the
mandatory minimum penalty on both the distribution and
conspiracy counts from 10 to 20 years. Atty. Kupsis had not
anticipated that the Government would file the information,
nor had he advised Mr. Foster that such was a possibility. After
receiving notice of the information, Atty. Kupsis suggested to
Mr. Foster that they attempt to revive one of the earlier
proposed plea agreements. Mr. Foster refused, stating that “20
years is life,” apparently referring to the approximate length of
imprisonment attendant in each of the prior proposed agree-
ments. Thus, trial went forward, and—quite to his sur-
prise—Atty. Kupsis successfully defended Mr. Foster against
the conspiracy charge. The jury, however, still voted to convict
him on the distribution count. The Section 851 information
triggered a higher mandatory minimum penalty of 20 years on
that count, and thus the district court sentenced Mr. Foster to
20 years imprisonment. This result effectively made the trial
inconsequential, as it was likely that Mr. Foster would have
received the same (or a slightly lower) sentence, had he agreed
to plead guilty to the conspiracy charge. Thus, he filed a
No. 12-1961 3
Section 2255 motion, arguing that Atty. Kupsis provided
constitutionally ineffective assistance of counsel, due to his
failure to anticipate and report to Mr. Foster the potential for
a Section 851 information. The district court held an eviden-
tiary hearing on Mr. Foster’s motion, and ultimately held that
Mr. Foster could not establish that he was prejudiced by Atty.
Kupsis’ representation, because he expressed an unwillingness
to accept any of the plea agreements offered to him. Mr. Foster
appealed, but this Court agrees with the district court’s
assessment, and therefore affirms its denial of Mr. Foster’s
motion.
I.Background
A grand jury returned a twenty-two count indictment
against fourteen defendants, including Mr. Foster, on October
21, 2004. The indictment charged Mr. Foster with two separate
counts: Count Two, conspiracy to possess with intent to
distribute fifty grams or more of crack cocaine, five kilograms
or more of cocaine, and marijuana, in violation of Title 21,
Section 846, of the United States Code (we will refer to this
count as the “conspiracy charge”); and Count Seven, distribu-
tion of fifty grams or more of crack cocaine, in violation of Title
21, Section 841(a)(1), of the United States Code (the “distribu-
tion charge”).
After Mr. Foster was arrested, Atty. Kupsis was appointed
to represent him. At this early stage of the proceedings, Mr.
Foster was subject to a mandatory minimum of ten years, and
faced a maximum term of life on the conspiracy charge. Atty.
Kupsis had reviewed the evidence, and believed it was very
strong and would likely lead to a conviction. Thus, he advised
4 No. 12-1961
Mr. Foster not to go to trial, as doing so would result in a
conviction on the conspiracy charge and a potential life
sentence. Instead, Atty. Kupsis suggested that Mr. Foster
should cooperate with the Government and plead guilty to
secure a lower sentence.
Mr. Foster initially agreed to do so, and the parties entered
a proposed plea agreement on February 11, 2005. The terms of
that agreement required that Mr. Foster plead guilty to the
conspiracy charge and assume responsibility for more than 1.5
kilograms of crack cocaine. Taking responsibility for that
amount of crack cocaine would have strongly affected the base
level for Mr. Foster’s offense, raising it to 38—the highest base
level for drug crimes under the sentencing guidelines. The plea
agreement also called upon Mr. Foster to agree to an additional
two-level enhancement for possession of a dangerous weapon.
However, the base level would be reduced by three points for
his acceptance of responsibility. Combined with Mr. Foster’s
level II criminal history category, this offense level would
result in a guideline range of 235 to 293 months imprisonment.
The agreement also anticipated Mr. Foster’s cooperation,
which might ultimately have led the government to file an
appropriate motion for a reduced sentence.
The plea agreement fell apart shortly before the plea
hearing, when Mr. Foster had a change of heart and told Atty.
Kupsis that he wanted to plead guilty to the possession charge,
as opposed to the conspiracy charge. The Government was
willing to allow this change only under the condition that Mr.
Foster accept the same drug quantity and weapons enhance-
ment proposed in the initial agreement. Mr. Foster would not
agree to do so, and instead told Atty. Kupsis that he would go
No. 12-1961 5
to trial even if he faced life imprisonment. Thus, he refused to
enter this first offered agreement.
But all was not lost: the Government offered a second
proposed agreement to Mr. Foster on September 1, 2006. This
new proposed agreement would have allowed Mr. Foster to
plead to the distribution charge, but still required him to accept
responsibility for distribution of 1.5 kilograms of crack cocaine
and the weapons enhancement. Nonetheless, the agreement
would have capped Mr. Foster’s term of imprisonment at 240
months, and the Government would have agreed to recom-
mend a 235 month sentence. Atty. Kupsis even believed that he
may have been able to persuade the judge to impose a sentence
closer to 210 months, and informed Mr. Foster of that fact. Mr.
Foster still would not agree, though, because he continued to
refuse to stipulate to the drug quantity and weapons enhance-
ment. The Government likewise refused to cap Mr. Foster’s
sentence unless he admitted those facts. Thus, once again, the
Government’s proposal fell through.
Trial approached quickly after that second proposed
agreement, and ten days before trial, the Government filed a
Section 851 information, stating that Mr. Foster had a prior
felony drug conviction for possession of cocaine. This informa-
tion increased Mr. Foster’s mandatory minimum penalty on
both charges from ten years to twenty years.
The Government’s filing apparently caught Atty. Kupsis
somewhat off guard—the Government had not informed him
of the potential that they would file it, nor had Atty. Kupsis
discussed the potential with Mr. Foster. But, when he ap-
proached Mr. Foster to discuss the significance of the informa-
6 No. 12-1961
tion, Mr. Foster had little interest in changing course. Atty.
Kupsis suggested that he may still be able to secure a plea
agreement with the Government, but Mr. Foster refused. Atty.
Kupsis explained the implications of both the information and
of going to trial: that Mr. Foster would almost certainly be
convicted of at least the possession charge, thus facing a
mandatory minimum of twenty years imprisonment, and
further placed himself at risk of a life sentence if convicted of
the conspiracy charge. This rationale did not prevail, though,
and Mr. Foster reiterated his decision to go to trial. In doing so,
he told Atty. Kupsis that “20 years is life,” apparently intoning
that entering a plea agreement carrying a likely twenty year
sentence would not be different to him than receiving a life
sentence.
The case eventually went to trial, and Atty. Kupsis was
surprisingly successful. The jury acquitted Mr. Foster on the
conspiracy charge, but convicted him of the possession charge.
This result was positive for Mr. Foster in multiple ways. First,
of course, he no longer faced a potential life sentence. Addi-
tionally, likely due to the facts established at trial, his
presentence report found him responsible for distributing only
127.3 grams of crack cocaine—much less than the 1.5 kilograms
the proposed agreements would have required him to admit
to. Seemingly for the same reason, the presentence report also
did not include a weapons enhancement, which Mr. Foster
would have been subject to under the proposed agreements.
This resulted in Mr. Foster’s base offense level being much
lower: only 32, with a guideline imprisonment range of 135 to
168 months.
No. 12-1961 7
Of course, that lower base offense level was of little
consequence, as the Section 851 information activated a
mandatory minimum sentence of twenty years. The district
court eventually imposed just that, sentencing Mr. Foster to
240 months imprisonment. Mr. Foster appealed that judgment,
arguing that the district judge should have waited to sentence
him until after the new 2007 version of the sentencing guide-
lines went into effect; the Seventh Circuit disagreed with that
position, and affirmed his conviction.
Thereafter, Mr. Foster filed a Section 2255 motion to alter,
amend, or vacate, his judgment of conviction. The district court
reviewed that motion and dismissed most of its claims.
However, it did not dismiss Mr. Foster’s claim that Atty.
Kupsis provided ineffective assistance of counsel to him.
In that claim, Mr. Foster asserted that Atty. Kupsis’s
representation was ineffective, because he failed to advise Mr.
Foster of the potential for a Section 851 information. Under Mr.
Foster’s theory, had Atty. Kupsis informed him of that poten-
tial, and its import, he would have agreed to plead guilty.
The district judge held a hearing on that issue, at which
both Mr. Foster and Atty. Kupsis testified. Mr. Foster testified
in support of his motion for relief. To begin, he testified that
Atty. Kupsis had failed to tell him about the second proposed
agreement or adequately explain the benefits of either of the
proposed agreements. He also testified that he would not have
gone to trial if he had known about the potential for a Section
851 information. In such a case, according to Mr. Foster’s
testimony at the evidentiary hearing, he would have chosen to
take the plea agreement, instead.
8 No. 12-1961
Atty. Kupsis also testified, and was forthcoming with the
district court about his failure to inform Mr. Foster about the
potential for a Section 851 information. He also testified that he
had provided Mr. Foster with a copy of the second proposed
agreement and had explained the benefits of accepting a plea
agreement and avoiding trial.
Given this conflicting testimony, the district court was
required to make a credibility determination, and found that
Atty. Kupsis’ testimony was more credible than Mr. Foster’s.
The district judge stated that Mr. Foster’s testimony was not
credible, specifically in relation to whether Atty. Kupsis had
offered appropriate advice on whether Mr. Foster should plead
guilty. The district judge found that Mr. Foster’s testimony was
self-serving and unsupported by other evidence. Atty. Kupsis,
on the other hand, testified against his own interest in admit-
ting that he had not alerted Mr. Foster to the possibility of a
Section 851 information, and the district court found him to be,
generally, a more credible witness. Therefore, the district court
accepted Atty. Kupsis’ testimony on his communications with
Mr. Foster over Mr. Foster’s account of the events.
Based upon that finding, the district court decided that Mr.
Foster could not satisfy the prejudice prong of his ineffective
assistance claim, and therefore denied Mr. Foster’s Section 2255
motion. More specifically, the district court found that Mr.
Foster would have refused to plead guilty, even if Atty. Kupsis
had notified him of the potential for a Section 851 information.
The district court determined that Mr. Foster’s sentiment that
“20 years is life” evidenced his unwillingness to accept a plea
agreement that would have likely yielded a sentence of around
twenty years. Given that there had never been a plea agree-
No. 12-1961 9
ment on the table that would have exposed Mr. Foster to an
initial sentence of substantially less than twenty years, the
district court found that Mr. Foster’s unwillingness to plead
guilty was of his own making. In other words, his choice was
not based upon Atty. Kupsis’ error, and Mr. Foster would still
have refused to plead guilty, even if he had known about the
potential of a Section 851 information. On that basis, the
district court found that Mr. Foster could not establish that he
was prejudiced by Atty. Kupsis’ actions. Therefore, his
ineffective assistance of counsel claim would not lie, and the
district court dismissed Mr. Foster’s Section 2255 motion.
Mr. Foster appealed that decision to this court.
II. Discussion
We review the district court’s findings of fact for clear error
and its conclusions on issues of law de novo. Sorich v. United
States, 709 F.3d 670, 673 (7th Cir. 2013).
Here, the district court made factual findings related to the
relative credibility of Atty. Kupsis’ and Mr. Foster’s statements.
It credited Atty. Kupsis’ statements, and accordingly found the
following relevant facts: first, that Atty. Kupsis informed Mr.
Foster of both proposed agreements and explained the benefits
of accepting those agreements to him; second, that Mr. Foster
refused to accept the drug weight and weapon enhancement
required by both proposed agreements; and, third, that Mr.
Foster clearly stated to Atty. Kupsis that he viewed a twenty
year sentence as being practically the same as a life sentence.
We cannot find any error—let alone any clear error—in
those findings of fact. Nor does Mr. Foster argue that any such
10 No. 12-1961
errors exist. Thus, it is on that factual basis that we must
review the district court’s denial of Mr. Foster’s Section 2255
motion.
Turning to that analysis, we begin by noting the two
elements of an ineffective assistance claim. To succeed on a
claim that counsel’s ineffective assistance led him to reject the
Government’s plea offers, Mr. Williams must show not only
that Atty. Kupsis acted in error, but also that—had Atty.
Kupsis provided competent advice—there is a reasonable
probability that the plea offer would have been presented to
the court, that the court would have accepted it, and that the
conviction or sentence or both would have been less severe
than the judgment imposed. Lafler v. Cooper, – U.S. —, 132 S. Ct.
1376, 1384–85 (2012).
Here, we will set aside the first of those elements, and
focus, instead, on the second. Perhaps Atty. Kupsis should
have anticipated a Section 851 information, and informed Mr.
Foster that it may have been forthcoming. However, we need
not reach that inquiry, because this case is more easily resolved
on the prejudice prong. We therefore avoid passing judgment
upon whether Atty. Kupsis’ failure to inform Mr. Foster during
the plea negotiation process of the potential for a Section 851
information constitutes ineffective assistance of counsel.
It is more prudent for us to begin and end our analysis with
the easily resolved question of whether Mr. Foster was
prejudiced by Atty. Kupsis’ failure to tell him about the
potential for a Section 851 enhancement.
Mr. Foster was not required to prove that it was more likely
than not that Atty. Kupsis’ allegedly deficient conduct caused
No. 12-1961 11
a worse result for him. A “reasonable probability” is sufficient,
which means a probability sufficient to undermine confidence
in the outcome. Strickland v. Washington, 466 U.S. 668, 694
(1984); Lafler v. Cooper, 132 S. Ct. at 1385.
Even under that low standard, Mr. Foster still has not met
his burden to show prejudice. The only evidence he provided
is his single, self-serving statement. The district court found
that Mr. Foster’s statement was not credible, and therefore
found that Mr. Foster had failed to establish prejudice.
That finding is due “exceptional deference” and we should
not overturn it unless it is clearly erroneous. Gant v. United
States, 627 F.3d 677, 681 (7th Cir. 2010) (quoting Tezak v. United
States, 256 F.3d 702, 715–16 (7th Cir. 2001)). In reaching that
finding, the district court relied on Atty. Kupsis’ testimony that
Mr. Foster repeatedly expressed his unwillingness to enter a
plea that would result in a sentence anywhere near twenty
years. That finding was, in fact, quite reasonable. The district
court chose to credit the testimony of an experienced attorney,
Kupsis, who was testifying against his own interest over Mr.
Foster’s own self-serving testimony. We, therefore, find that
the district court’s credibility determination was not clearly
erroneous, and accordingly is entitled to our deference.
Several of our cases have stated that a petitioner in Mr.
Foster’s position must offer objective evidence that he would
have accepted the plea agreement but for his attorney’s poor
performance, and that a single self-serving statement is not
enough to succeed in making this showing. See Julian v. Bartley,
495 F.3d 487, 499–500 (7th Cir. 2007) (citing Toro v. Fairman, 940
F.2d 1065, 1068 (7th Cir. 1991); Paters v. United States, 159 F.3d
12 No. 12-1961
1043, 1047 (7th Cir. 1998); Johnson v. Duckworth, 793 F.2d 898,
902 n. 3 (7th Cir. 1986)). We recognize the similarities between
this case and our decision in Toro, but specifically decline to
decide this case under the rule announced in Toro. In Toro, we
held that a defendant’s single, self-serving statement that he
would have accepted a plea was insufficient to demonstrate
prejudice. 940 F.2d at 1068. At the time, we supported that
hard-line rule with nothing more than a “cf.” citation to
Strickland. Toro, 940 F.2d at 1068 (citing Strickland, 466 U.S. at
694). In the years since, we have cited Toro sparingly, often in
dicta and quite often noting that the case is distinguishable.
See, e.g., Julian, 495 F.3d at 499–500 (distinguishing Toro due to
the overwhelming evidence of prejudice); Paters, 159 F.3d at
1047, 1049–50 (also distinguishing Toro due to the amount of
evidence of prejudice and including a concurrence by Judge
Rovner that discusses why the Toro rule is unsound). Finally,
we note that the Supreme Court may take up this issue shortly.
Burt v. Titlow, cert. granted, 133 S. Ct. 1457 (2013). Given the
Toro rule’s shaky foundations, its lack of firm support in
subsequent case law, and the fact that the Supreme Court may
shortly depart from it, we will not rely on it to dispose of this
case.
Nor is it necessary for us to do so. As we have already
mentioned, even if the district court could have chosen to rely
on Mr. Foster’s statement alone, it found that his testimony
was not credible, as it was in conflict with Atty. Kupsis’. We
find no issue with the district court’s credibility determination.
It was on that basis that the district court discounted Mr.
Foster’s statements that Atty. Kupsis did not adequately
explain the importance of the proposed agreements and
No. 12-1961 13
further asserted that he would have pled guilty had he known
of the potential for a Section 851 information. And, having
discounted those statements, the district court was left with
nothing else upon which it could find that Mr. Foster was
prejudiced by Atty. Kupsis’ omission.
Moreover, the district court had testimony adverse to Mr.
Foster’s position. Atty. Kupsis testified that Mr. Foster stated
that “20 years is life,” and the district court accepted that
testimony as reliable. Analyzing that statement, the district
court found—and we agree—that it is highly probative of Mr.
Foster’s extreme reluctance to accept any plea agreement
under which he may have received close to twenty years
imprisonment. Seeing as both proposed agreements would
have resulted in guidelines near twenty years, we cannot
imagine Mr. Foster being amenable to accepting either.
Additionally, even after the Government filed the Section 851
information, Mr. Foster still urged Atty. Kupsis to take the case
to trial, refusing Atty. Kupsis’ suggestion that he try to salvage
one of the earlier plea offers. This consistent refusal to take a
plea agreement is evidence that he did not suffer prejudice due
to Atty. Kupsis’ failure. Gallo-Vasquez v. United States, 402 F.3d
793, 798–99 (7th Cir. 2005) (finding that there was no reason-
able probability of prejudice when the record showed the
petitioner’s continued refusal to accept his attorney’s advice to
enter a plea agreement).
For all of these reasons—the lack of any credible evidence
offered by Mr. Foster, and the amount of countervailing
evidence against him—we conclude that the district court was
correct in finding that Mr. Foster was not prejudiced by Atty.
Kupsis’ failure to alert him to the possibility of a Section 851
14 No. 12-1961
information. We therefore AFFIRM the district court’s denial of
Mr. Foster’s Section 2255 motion.