NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0531n.06
Filed: June 22, 2005
No. 03-4234
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WILLIAM BURGESS, IV, NORTHERN DISTRICT OF OHIO
Defendant-Appellant,
/
BEFORE: CLAY and SUTTON, Circuit Judges; REEVES, District Judge.*
CLAY, Circuit Judge. Defendant-Appellant William Burgess, IV, appeals his sentence
imposed on September 3, 2003 after pleading guilty to one count of conspiracy to distribute cocaine,
in violation of 21 U.S.C. § 841(a)(1), and one count of carrying a firearm in relation to a drug
trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. Burgess argues that the district
court erred in failing to grant him, pursuant to United States Sentencing Guidelines Manual
(“Guidelines”) § 3B1.1, a downward adjustment in his offense level for his purportedly minor or
minimal role in the offense, and grant him, pursuant to Guidelines § 4A1.3(b), a downward
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting by
designation.
No. 03-4234
departure below the applicable Guidelines range for Criminal History Category II on the ground that
this category substantially over-represents the seriousness of his conduct. For the reasons that
follow, we hold that Burgess has waived his right to appeal these issues. Accordingly, his appeal
shall be DISMISSED.
I
On February 20, 2003, the Grand Jury sitting in the Northern District of Ohio charged
Charlene Romane, Defendant-Appellant William Burgess, and Lesley P. Smith in a six-count
indictment for conspiracy to distribute cocaine. The alleged conspiracy began on January 9, 2003,
when Romane sold an undercover police officer approximately one ounce of cocaine for $1,000.
Romane also discussed with the officer a plan to sell him approximately nine additional ounces of
cocaine. On January 15, 2003, Romane asked Burgess to help her obtain the nine ounces of cocaine.
Burgess then asked Smith to supply him with the cocaine. That evening, Romane and Burgess
traveled to the parking lot of a Circuit City store in Niles, Ohio in order to sell the cocaine to the
undercover officer. They brought a loaded Ruger .9mm pistol with them. Shortly thereafter, Smith
arrived with the nine ounces of cocaine. Smith had a loaded Hi-Point .9mm pistol on his person.
Romane then displayed a sample of the cocaine to the undercover officer for purposes of facilitating
the sale. The Grand Jury charged Burgess in Count Two of the indictment with conspiracy to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); in Count Three with possession with intent
to distribute nine ounces of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and in
Count Four with carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(i) and 2.
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Burgess signed a written plea agreement on May 30, 2003 which states that Burgess read and
understood it and had an opportunity to discuss it with his attorney. Burgess agreed to plead guilty
to Counts 2 and 4 of the indictment, and the government agreed to move to dismiss Count 3.
Pursuant to the plea agreement, Burgess acknowledged that Count 2 carries a maximum
possible penalty of 20 years’ imprisonment, that Count 4 carries a maximum possible sentence of
life imprisonment, and that the sentence for Count 4 must be served consecutively to any sentence
imposed for Count 2. Burgess further acknowledged that “his sentence [would] be determined in
accordance with the mandatory term of imprisonment required by 18 U.S.C. § 924(c) and the United
States Sentencing Guidelines ([“Guidelines”]), which [would], for Count 2 of the Indictment,
prescribe a range within which the sentencing court [would] be required to fix the defendant’s
sentence on that charge.”
The parties stipulated that the appropriate base offense level for Count 2 was 20, that Burgess
was entitled to a three-level downward adjustment for acceptance of responsibility, and that, unless
the court determined that Burgess was entitled to a downward departure under Guidelines § 3B1.2
for his role in the offense, the total offense level for Count 2 would be 17. The parties further
stipulated that the appropriate sentencing range for Count 4 would be a consecutive term of
imprisonment of five years pursuant to 18 U.S.C. § 924(c)(1)(A)(i) and Guidelines § 2K2.4(b).
The agreement specifically reserved Burgess’s right to ask for a downward adjustment in his
offense level pursuant to Guidelines § 3B1.2 for his role in the offense. Id. The agreement also
indicated that if Burgess were to render “substantial assistance” in connection with the investigation
and prosecution of other individuals, the government would move for a downward departure
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No. 03-4234
pursuant to Guidelines § 5K1.1, 18 U.S.C. § 3553(e), and/or Fed. R. Crim. P. 35(b). The parties
agreed, however, that, except for a downward departure under Guidelines § 5K1.1, they would not
ask the Court to depart from the guideline range prescribed for Count 2. Burgess further agreed to
“give up his right to seek a downward departure from the applicable guidelines range and that the
United States Attorney’s Office [would] give up its right to request an upward departure.”
In the section of the agreement captioned “Waiver of Appellate and Post-Conviction Rights,”
Burgess agreed to waive his appeal rights under 18 U.S.C. § 3742 and his right to collaterally attack
his sentence under 28 U.S.C. § 2255, except with regard to Burgess’s right to appeal: (a) any
punishment in excess of the statutory maximum; (b) any punishment to the extent it constitutes an
upward departure from the Sentencing Guideline range agreed upon in the plea agreement; or (c)
“the district court’s determination of the Defendant’s Criminal History Category.” Burgess also
reserved his right to bring an appeal or a collateral attack regarding claims of ineffective assistance
of counsel or governmental misconduct.
At the change of plea hearing, Burgess confirmed that he understood the nature of the
charges in Counts 2 and 4, the maximum possible sentence he faced on Count 2, and the five-year
mandatory minimum he faced regarding Count 4. Burgess further admitted that, by pleading guilty,
he was waiving his right to a trial by jury, the right to counsel at every stage of the proceedings, the
right to testify on his own behalf or not testify at all, the right to compel witnesses to appear on his
behalf, and the right to be presumed innocent unless the government could prove guilt beyond a
reasonable doubt. Burgess also admitted that he was waiving his right to appeal from his
convictions on Counts 2 and 4 and that “[t]here may be some aspects of the sentence that could be
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No. 03-4234
appealed.” After Burgess admitted the factual basis for the plea set forth in the agreement, the
government summarized the promises in the agreement. Among other things, the prosecutor pointed
out that Burgess had reserved his right to seek a downward adjustment in his offense level for his
role in the offense, and that the agreement allows for the possibility that the government might move
for a downward departure based on substantial assistance. The prosecutor added, however:
With respect to other possible departures, Your Honor, both sides have agreed to
give up their right to seek any other departures. By virtue of that understanding,
your Honor, the Defendant will give up his right to seek a downward departure; and
conversely, the United States Attorney’s Office will give up its right to seek an
upward departure.
The prosecutor also explained the agreement’s waiver of appeal provisions, noting that Burgess had
waived his right to appeal his conviction and sentence, except with respect to his right to appeal
punishment that may exceed the statutory maximum, punishment that results from an upward
departure, and the court’s determination of Burgess’s criminal history category.
After confirming that no one had made any other promises or threats to Burgess for his guilty
plea, the court ruled that Burgess understood the nature of the charges against him, that his plea was
voluntary and intelligent, and that there was a substantial factual basis for his guilty plea to Counts
2 and 4. The court then accepted Burgess’s guilty plea.
Relying on the plea agreement, the probation officer who prepared the presentence report
noted that the base offense level for Count 2 was 20, but reduced it to 17, based on Burgess’s
acceptance of responsibility. The probation officer further noted that the guilty plea to Count 4
mandated a consecutive term of imprisonment of five years.
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The probation officer then calculated two criminal history points based on Burgess’s May
11, 2000 conviction for drug abuse (resulting in six months of non-reporting probation) and his May
16, 2001 conviction for possession of drug paraphernalia (resulting in a 30-day suspended sentence
and six months of probation). The latter conviction resulted after Burgess was pulled over and was
discovered to have a smoking pipe containing marijuana residue. Burgess’s two criminal history
points translated into a Criminal History Category II, pursuant to the Sentencing Table at Guidelines
Chapter 5, Part A.
The presentence report noted that, for Count 2, an offense level of 17 and a Criminal History
Category of II, Burgess’s sentencing range was between 27 and 33 months. The report further noted
that, for Count 4, 18 U.S.C. § 924(c)(1)(A)(I) imposes a mandatory consecutive sentence of five
years. Neither Burgess nor the government filed objections to the report.
At the sentencing hearing, Burgess confirmed that he had an opportunity to review the
presentence report and that he had no objections to it. Burgess’s attorney then argued that Burgess’s
two “convictions for nonviolent minor drug offenses,” which occurred two and three years prior to
his present convictions, made his Criminal History Category II as opposed to Category I. Burgess’s
attorney acknowledged that the right to move for a “downward departure for overstatement of
criminal history points … [is] not spelled out in the plea agreement,” but argued that a Category II
Criminal History was not contemplated at the time. Burgess’s attorney asked the court “to take
those factors into consideration when sentencing him.”
Burgess’s attorney further argued that Burgess’s role in the criminal activity was minor. His
attorney pointed to the facts that (a) Defendant Romane, Burgess’s aunt, is twice Burgess’s age; (b)
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No. 03-4234
Romane provided the weapon for Burgess and placed it under the seat of the car; and (c) Romane
asked him to contact other people for cocaine. Burgess’s attorney therefore requested a downward
departure “minimiz[ing] his exposure to the 60 months sentence.”
The government objected to Burgess’s attempt to seek any kind of downward departure. The
government noted that Burgess’s request for a downward departure for his role in the offense
actually is not a departure, but an “adjustment” under the Guidelines. It further argued that, in any
event, the plea agreement does not permit either party to seek a downward departure except based
on substantial assistance. The government also asserted that Burgess’s request for a downward
departure failed on the merits because the parties’ factual stipulation shows that Burgess was
instrumental to the conspiracy; he admittedly had the connection to the cocaine supplier. The
government likewise argued that Burgess’s argument that his criminal history is over-represented
was in the nature of a request for a downward departure, which the plea agreement prohibits. The
government also argued that Burgess’s argument failed on the merits because the prior convictions
were only one year apart and were close in time to the drug conspiracy at issue in this case.
The court found no error in the presentence report’s calculation of Burgess’s base offense
level or Criminal History for Count 2. The court then stated that it was “happy to make the term of
incarceration the lowest possible under the Sentencing Guidelines” – 27 months. The court also
commented on its ability to grant a downward departure based on substantial assistance:
I really have no opinion with respect to reducing the sentence any further. It is really
in the hands of the prosecutor to make any motion that would say make the sentence
lower than I have made it under the existing laws, this kind of sentence, I think this
could be given. I can’t change the rules and hopefully, perhaps some situation will
come up under which you’ll be able to take advantage of helping the government
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No. 03-4234
sometime within the next year. If that happens then I would assume they would
make a motion to lower your sentence. No one can predict that either.
The court then imposed the 60-month mandatory sentence for Count 4. Last, the court dismissed
Count 3 of the indictment on the motion of the United States. Judgment was entered on September
3, 2003, and Burgess appealed on September 24, 2003.
II
A. Standard of Review
This Court reviews the question of whether a defendant waived his right to appeal his
sentence in a valid plea agreement de novo. United States v. Murdock, 398 F.3d 491, 496 (6th Cir.
2005) (citations omitted).
B. Analysis
A defendant in a criminal case may waive the right to appeal, as long as the waiver is
knowing and voluntary. United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001); United
States v. Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995). A knowing and voluntary waiver of a right to
appeal contained in a plea agreement is presumptively valid and will preclude review of an issue on
appeal. United States v. Bazzi, 94 F.3d 1025, 1028 (6th Cir. 1996); United States v. Allison, 59 F.3d
43, 46 (6th Cir. 1995). The court determines the validity of a plea under the totality of the
circumstances. Brady v. United States, 397 U.S. 742, 749 (1970). The Constitution requires that
such circumstances reflect that the defendant be informed of all the direct consequences of a guilty
plea. Id. at 755. The record should reflect a full understanding of the direct consequences so that
the plea represents a voluntary and intelligent choice among the alternatives. North Carolina v.
Alford, 400 U.S. 25, 31 (1970).
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No. 03-4234
Here, Burgess attempts to argue that the district court erred in failing to grant him, pursuant
to Guidelines § 3B1.1, a downward adjustment in his offense level for his purportedly minor or
minimal role in the offense, and grant him, pursuant to Guidelines § 4A1.3(b), a downward
departure below the applicable Guidelines range for Criminal History Category II on the ground that
this category substantially over-represents the seriousness of his conduct. Burgess’s ability to raise
these issues on appeal depends initially on the terms of his plea agreement.
Although the plea agreement explicitly reserved Burgess’s right to ask the district court for
a reduction in his offense level for his purported minor role in the offense, the agreement also
explicitly precludes Burgess’s right to appeal the district court’s adverse decision. The agreement’s
section entitled “Waiver of Appellate and Post-Conviction Rights” clearly states that Burgess
waived his right to appeal his conviction or sentence, except an appeal of a punishment that exceeds
the statutory maximum, an upward departure, or the district court’s determination of Burgess’s
Criminal History Category. None of those exceptions apply to a request for a reduction based on
Burgess’s alleged minor role in the offense.
Nor do any of these exceptions permit an appeal of the district court’s determination of
Burgess’s criminal history. Although the agreement specifically reserves Burgess’s right to appeal
“the district court’s determination of the Defendant’s Criminal History Category,” that provision
must be read in conjunction with the section entitled “Departures.” That section states that Burgess
“will give up his right seek a downward departure from the applicable guideline range and that the
United States Attorney’s Office will give up its right to request an upward departure.” The only
exception is a downward departure requested by the government under the “substantial assistance”
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No. 03-4234
provisions of Guidelines § 5K1.1. In other words, the agreement precluded Burgess from requesting
a downward departure from the district court based on an overstated criminal history. It follows,
a fortiori, that Burgess has no right to appeal the denial of such a request for a downward departure.
Instead, the only issue pertaining to Burgess’s criminal history that he could have appealed would
have been an incorrect determination of his criminal history – for example, if the court assigned
incorrect point totals to prior convictions or incorrectly added the criminal history points, thereby
placing Burgess in the wrong Criminal History Category. Burgess, however, has made no such
allegation. He lodged no objections to the criminal history determinations and point total set forth
in the presentence report, and raised no similar objections at the sentencing hearing. Accordingly,
his appeal of the district court’s refusal to entertain or grant a downward departure based on an
overstated criminal history is not well-taken.
In an attempt to evade the plain language of the plea agreement, Burgess argues that he did
not enter the agreement knowingly, voluntarily, and intelligently. Specifically, he argues that the
district court failed to comply with Fed. R. Crim. P. 11(b)(1)(N) by failing to ensure that he
understood the meaning of the waiver of appeal provisions in the plea agreement. This argument
is utterly meritless. At the change of plea hearing, Burgess admitted that he understood that he was
waiving his right to appeal from his convictions on Counts 2 and 4 and that “[t]here may be some
aspects of the sentence that could be appealed.” His understanding was absolutely correct, as the
plea agreement, which he signed, largely prohibits any appeal of his sentence, except in the three
circumstances noted above. Thereafter, the prosecutor explained the agreement’s waiver of appeal
provisions in open court, noting that Burgess had waived his right to appeal his conviction and
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No. 03-4234
sentence, except with respect to his right to appeal punishment that may exceed the statutory
maximum, punishment that results from an upward departure, and the court’s determination of
Burgess’s Criminal History Category. There was no manifestation of misunderstanding from
Burgess, nor did his attorney object, before the court accepted his guilty plea. Under such
circumstances, Burgess’s plea was knowing and voluntary. See Murdock, 398 F.3d at 498 (dictum)
(“[T]he prosecutor in summarizing the key elements of the agreement might adequately address the
waiver.”). He therefore is bound by its terms, including the provisions that bar his ability to raise
the challenges to his sentence that he has advanced in this Court.
We further hold that Burgess’s plea was not involuntary even though he did not know when
he pleaded guilty that the Supreme Court would later declare the Sentencing Guidelines to be
advisory in United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). See United States v.
Bradley, 400 F.3d 459, 464 (6th Cir. 2005) (holding that the change in the law on appeal could not
undo the defendant’s plea agreement, including the waiver of appellate rights provision, which was
otherwise the product of a knowing and voluntary plea); see also id. at 465 (“Having voluntarily and
knowingly bargained for a decrease in the number of counts charged against him and for a decreased
sentence, Bradley cannot now extract two components of that bargain – his agreement to be
sentenced under the then-mandatory Guidelines and his agreement to waive his right to appeal – on
the basis of changes in the law after that bargain was struck.”).
Finally, in a supplemental pro se brief, Burgess asserts that his trial counsel was
constitutionally ineffective for not arguing at sentencing that the mandatory nature of the
Sentencing Guidelines was unconstitutional. Burgess argues that, in September 2003, his attorney
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should have anticipated the Supreme Court’s 2005 holding in Booker based on the Court’s previous
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) and the Court’s subsequent decision in
Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004).
Normally, we would decline to review an ineffective assistance of counsel claim raised on
direct appeal on the grounds that the record is devoid of sufficient information concerning counsel’s
trial strategy and relevant attorney-client communications; the preferred avenue for raising such
claims is through a post-conviction motion pursuant to 28 U.S.C. § 2255. See Massaro v. United
States, 538 U.S. 500, 504 (2003) (holding that because litigants need an opportunity to develop the
factual predicate for an ineffective assistance of counsel claim and because the record on direct
appeal usually is devoted to guilt or innocence, not trial strategy, “[t]he better-reasoned approach
is to permit ineffective-assistance claims to be brought in the first instance in a timely motion in the
district court under § 2255”); Bradley, 400 F.3d at 461-62 (declining to entertain claim that counsel
was ineffective for failing to inform the defendant of case law indicating that state-law facilitation
statutes, like the Tennessee statute used in defendant’s case, could not be used as predicates to
establish that defendant was a career offender). The concerns underlying premature ineffective
assistance claims, however, are not applicable here. An opportunity to supplement the record in §
2255 proceedings would not shed any more light on the purported unreasonableness of Burgess’s
counsel’s failure to object to the mandatory nature of the Guidelines. This Court can determine that
issue as a matter of law based on the facts already in the record. See United States v. Pruitt, 156
F.3d 638, 646 (6th Cir. 1998) (holding that an exception to the general rule that ineffective
assistance claims may not be considered on direct appeal applies “when the existing record is
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No. 03-4234
adequate to assess properly the merits of the claim”). Accordingly, we address Burgess’s claim
below.
Burgess’s trial counsel cannot be deemed ineffective for failing to anticipate the Supreme
Court’s June 24, 2004 holding in Blakely that the Sixth Amendment precluded the imposition of a
sentence under Washington state’s sentencing system based on facts not found by a jury or admitted
by the defendant. See Blakely, 124 S. Ct. at 2537-38 (applying Apprendi). The Supreme Court had
not even agreed to hear the appeal in Blakely until over a month after Burgess’s sentencing. See
Blakely v. Washington, 540 U.S. 965 (Oct. 20, 2003). Nor can counsel be deemed ineffective for
lacking the additional prescience to anticipate that the eventual holding in Blakely would lead to the
Supreme Court’s January 12, 2005 decision in Booker to remedy potential Sixth Amendment
problems in the application of the federal Sentencing Guidelines by declaring the Guidelines
advisory only, Booker, 125 S. Ct. at 764-67, particularly because the Blakely opinion makes clear
that it expresses no opinion on the continuing validity of the federal guidelines, Blakely, 124 S. Ct.
at 2538 n.9.
It also is important to note that Burgess has never claimed that the district court sentenced
him above the statutory maximums for the crimes to which he pleaded guilty. He argues that the
district court should have granted him certain adjustments and downward departures so that he could
receive a sentence below what the admitted facts authorized. Burgess’s sentence does not raise any
of the due process or Sixth Amendment concerns that precipitated the holdings in Apprendi, Blakely,
or Booker, which involved judge-imposed sentences above the sentences that were authorized solely
by a jury verdict or the facts admitted by the defendant. Thus, even assuming that Burgess’s counsel
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was in a position to argue about the potential unconstitutional application of the Sentencing
Guidelines, that argument had no application (and therefore no merit) in Burgess’s case.
Burgess seeks resentencing under the remedial holding in Booker, which renders the
Guidelines advisory even in cases where the defendant’s sentence raises no constitutional concerns
– i.e., where the defendant is sentenced under a mandatory Guidelines scheme, but the actual
sentence imposed falls at or below the range authorized solely by the admitted or jury-deliberated
facts. Even assuming, arguendo, that Burgess’s counsel reasonably should have foreseen Booker’s
remedial holding, that holding does not clearly compel any relief for Burgess. Although the Court
in Booker stated that its holding would apply to all cases on direct review, such as Burgess’s, the
Court further observed that not every appeal of a sentence under a mandatory Guidelines regime
would lead to a new sentencing hearing. Booker, 125 S. Ct. at 769.
It is only by virtue of this Court’s interpretation of Booker in United States v. Barnett, 398
F.3d 516 (6th Cir. 2005), that Burgess might be entitled to resentencing, were it not for his waiver
of his right to appeal his sentence. In Barnett, this Court established a presumption that any pre-
Booker sentencing determination constitutes plain error because the Guidelines were then
mandatory. Barnett, 398 F.3d at 526-29. Consequently, a defendant must be re-sentenced unless
the sentencing record contains clear and specific evidence to the effect that, even if the sentencing
court had known the Guidelines were advisory, it would have sentenced the defendant to the same
(or a longer) term of imprisonment. Id. The novelty of a Barnett-type argument at the time of
Burgess’s sentencing in September 2003 not only countenances against a finding of ineffective
advocacy, but also militates against any finding of prejudice stemming from counsel’s failure to
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No. 03-4234
raise the argument. Burgess’s attorney would have had to have convinced the district court that
Burgess should be sentenced as if the Guidelines were advisory, even though there was no apparent
threat to Burgess’s Sixth Amendment rights. There was no reasonable probability, however, that
the court would have accepted such an argument that no other court had adopted at that time. See
Williams v. Taylor, 529 U.S. 362, 391 (2000) (“To establish prejudice he ‘must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’”) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).1
In the end, the merits of Burgess’s ineffective assistance of counsel claim hinges on showing
that his counsel acted unreasonably in failing to predict two Supreme Court decisions (Blakely and
Booker) and a subsequent decision from this Circuit (Barnett).2 As a matter of law, there simply is
no basis for Burgess’s assertion that his counsel’s failure to predict this novel line of authority “fell
below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88; see also Jones v.
Barnes, 463 U.S. 745, 751-54 (1983) (holding that counsel has no obligation to raise every possible
claim); Fuller v. United States, 398 F.3d 644, 651 n.4 (7th Cir. 2005) (noting in dictum that any
1
Arguably, Burgess’s counsel could have at least preserved the argument for appeal by
negotiating an exception to the waiver of appellate rights provision of the plea agreement for any
claim concerning the validity of the Guidelines. Such a provision might have allowed Burgess to
seek a remand under this Circuit’s Barnett rule. But the extreme prescience required in September
2003 to predict the outcome in Barnett conclusively demonstrates that Burgess’s attorney did not
act unreasonably in failing to negotiate such a provision.
2
Under Burgess’s theory, Counsel also would have had to have anticipated that this Circuit’s
future en banc decision in United States v. Koch, 383 F.3d 436 (6th Cir. 2004), which upheld the
mandatory nature of the Sentencing Guidelines after the decision in Blakely, would eventually be
overruled by Booker.
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No. 03-4234
argument that trial counsel was ineffective for failing to anticipate Blakely and Booker would not
be tenable). We therefore reject Burgess’s claim of constitutionally ineffective counsel.
III
For all the foregoing reasons, we DISMISS Burgess’s appeal.
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