NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2009*
Decided May 28, 2009
Before
WILLIAM J. BAUER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐2533
DEXTER ANDERSON, Appeal from the United States District
Petitioner‐Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 07‐C‐761
UNITED STATES OF AMERICA,
Respondent‐Appellee. William C. Griesbach,
Judge.
O R D E R
A jury found Dexter Anderson guilty of multiple counts of possession and sale of
crack and being a felon in possession of a firearm, and the district judge sentenced him to 25
years in prison. We affirmed his conviction and sentence on direct appeal. See United States
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 08‐2533 Page 2
v. Anderson, 450 F.3d 294 (7th Cir. 2006). Anderson then moved to vacate his sentence under
28 U.S.C. § 2255, arguing that his respective counsel were ineffective because they failed to
make him aware of a government plea offer and the possible benefits of pleading guilty.
The district judge denied him relief, but granted him a certificate of appealability
concerning his ineffective‐assistance claim. We affirm.
In December 2003, about one month after the government filed an indictment against
Anderson, Anderson’s counsel withdrew and the defendant retained attorneys Jonathan
Smith and his partner, Steven Kohn. According to Anderson, Smith and Kohn visited him
twice in prison to discuss his case, and after the second visit Kohn sent Anderson a letter
attaching a plea offer from the government. Kohn advised Anderson to read the letter and
to call him if he had any questions.
The government in its plea offer informed Anderson that if he went to trial and were
found guilty he would face a guidelines range of 292 to 365 months, and that the
government was prepared to and would file an information listing two prior convictions as
a basis for an enhanced sentence. See 21 U.S.C. § 851. If Anderson entered a plea of guilty,
however, the government said that it would consider seeking a plea to only one count of
conspiracy to distribute cocaine for which he would face a lower guidelines range.
Anderson acknowledged reading the letter but claimed that federal marshals took it away
from him.
Before trial, Anderson, unhappy with Smith and Kohn’s work, fired them and
retained Ann Bowe as counsel. Anderson asserted in his affidavit that Bowe, the second
lawyer, never explained the plea agreement or the possible exposure to a higher sentence if
he went to trial. He also says that Bowe told him he had a fifty‐percent chance of prevailing
at trial.
Anderson represented by Bowe was found guilty at trial before a jury on all counts.
As the government had warned, it filed the § 851 information regarding his prior
convictions, thereby subjecting him to a twenty‐year statutory minimum sentence. The
judge gave Anderson a twenty‐five‐year sentence, and we affirmed his conviction and
sentence on direct appeal.
In his § 2255 motion, Anderson maintained that he received ineffective assistance of
counsel because his attorneys never informed him of the government’s plea offer and the
possibility of a twenty‐year minimum based on prior convictions, and, had he known, he
would have accepted the plea agreement.
No. 08‐2533 Page 3
The district judge denied his motion, finding that Anderson was aware of the
specific consequences of going to trial because he received, read, and understood the
government’s plea offer Kohn had sent him. The judge doubted that federal marshals took
the letter from Anderson, but stated that even if that were true, his attorneys supplied him
with the relevant information concerning the government’s offer. As for Bowe, the judge
said that even if she had assessed Anderson’s chances of winning at trial at fifty percent,
such an assessment did not amount to ineffective assistance because it was not so “overly
sanguine or recklessly optimistic” as to likely convince an otherwise cautious defendant to
go to trial.
On appeal Anderson repeats his argument that his attorneys were ineffective in
failing to apprise him of the government’s plea offer and the impact of the § 851 filing. It is
true that a defense attorney’s failure to inform a defendant about a plea agreement may
constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668
(1984), see United States v. Golden, 102 F.3d 936, 943 (7th Cir. 1996), but we agree after
examination of the record with the district judge that the performance of Anderson’s
counsel was not deficient because it was not “objectively unreasonable,” Moore v. Bryant,
348 F.3d 228, 241 (7th Cir. 2003). As the judge pointed out, Kohn sent the government’s plea
agreement to Anderson, and that plea offer contained all of the relevant information he now
claims he lacked. Anderson admits that he read it. Bowe, in her affidavit, stated that she
discussed it with him and asked him if he understood that his sentence could be
“dramatically enhanced” by going to trial. Anderson disputes Bowe’s assertion, but even if
Bowe did not talk to him about the government’s offer, Kohn had already provided, by
forwarding the government’s letter1, the key information regarding the consequences of
going to trial.
Anderson also claims that Bowe’s performance was deficient because she told him
that he had a fifty‐percent chance of prevailing at trial (Bowe, however, disputes making
this assessment). But a mistaken prediction is not sufficient to show deficient performance
unless it is a “gross mischaracterization.” See Julian v. Bartley, 495 F.3d 487, 495 (7th Cir.
2007) (holding that counsel was ineffective when he advised defendant of incorrect
statutory maximum). And we have held that a lawyer’s performance may be deficient if
“he advises his client to reject a plea bargain in the face of overwhelming evidence of guilt
and an absence of viable defenses.” Gallo‐Vasquez v. United States, 402 F.3d 793, 798 (7th Cir.
2005). Even if Bowe was incorrect in assessing Anderson’s likelihood of success at trial at
1
The government’s letter referred to in this order includes a summary of evidence against
Anderson encompassing the drugs located during the search, controlled drug purchases, telephone
records indicative of drug dealing, and so forth. The letter also contains a formal notice proclaiming that
should the case go to trial, the government will amend its information to include a prior drug conviction.
No. 08‐2533 Page 4
fifty‐fifty, Anderson has failed to point to any defect in her analysis of trial strategy to
render this assessment a “gross mischaracterization.”
Finally, Anderson asserts that if he had he known of the government’s plea offer and
the consequences of going to trial, he would have pleaded guilty. Having held that
Anderson’s counsel’s performance was not deficient, we need not address Anderson’s claim
of prejudice. See Julian, 495 F.3d at 494 (counsel’s performance must be deficient and
prejudice the defendant for defendant to prevail on ineffective assistance claim). In any
case, Anderson has failed to demonstrate that he was prejudiced by his counsel’s
performance because his actions showed that he had no inclination to plead guilty. See
Gallo‐Vasquez 402 F.3d at 798‐99. Anderson repeatedly discussed his desire to go to trial
with Bowe, maintained his innocence in his testimony at trial, and proclaimed at sentencing
that the government did not “really have proof I did this.”
AFFIRMED.