In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-4044 & 09-4046
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
V ERNADO P ARKER,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 04 CR 361 and 08 C 2957—Matthew F. Kennelly, Judge.
A RGUED M AY 21, 2010—D ECIDED JUNE 16, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
T INDER, Circuit Judges.
B AUER, Circuit Judge. Vernado Parker pleaded guilty
to conspiring to possess more than 5 kilograms of cocaine
with intent to distribute, in violation of 21 U.S.C. § 846,
and admitted under oath to distributing between 50 and
150 kilograms. In exchange, the government agreed to
dismiss the remaining charges and to recommend
that Parker receive certain sentence reductions under
the United States Sentencing Guidelines. The district
2 Nos. 09-4044 & 09-4046
court accepted the government’s recommendations and
sentenced Parker to 121 months’ imprisonment, the
bottom of Parker’s calculated Guidelines range. Parker
challenges the effectiveness of his counsel’s advice
during the plea negotiation and the calculation of his
sentence. For the reasons below, we affirm the district
court’s separate rulings on those issues.
I. BACKGROUND
This is a consolidated appeal from (1) Parker’s criminal
conviction and sentence; and (2) his civil habeas action
under 28 U.S.C. § 2255, in which the district court re-
entered judgment in the underlying criminal case so that
Parker could timely appeal it, having found Parker’s
counsel constitutionally ineffective for failing to timely
appeal the original judgment. Also in the civil case, the
district court denied Parker’s motion to vacate his sen-
tence after finding that although Parker’s counsel acted
deficiently in advising Parker about his plea negotiation,
the misadvice did not prejudice Parker. See United States
v. Parker, No. 08 CV 2957, 2009 WL 4043177, at **9-12 (N.D.
Ill. Nov. 23, 2009).
Counsel had first informed Parker accurately about the
nature of the government’s plea offer. In exchange for
pleading guilty to conspiring to possess more than
5 kilograms of cocaine with intent to distribute and for
admitting to distributing between 50 and 150 kilograms,
the government offered to dismiss the remaining fifteen
charges arising from the same course of conduct and to
recommend a two-level reduction under the Guidelines
Nos. 09-4044 & 09-4046 3
for accepting responsibility and another two-level reduc-
tion for being eligible for the “safety valve.” See 18
U.S.C. § 3553(f).
Counsel then misadvised Parker about the effects of
accepting this offer. Specifically, counsel (1) told Parker
that the resultant sentence would be a maximum of
120 months, and probably less; (2) explained to Parker
that admitting to 50 or more kilograms of cocaine, versus
the only 15 kilograms for which Parker thought he was
responsible, would not affect his sentence other than
determining the recommended Guidelines range; and
(3) led Parker to believe that eligibility for the safety-
valve reduction required accepting the government’s
deal. The district court would later find the first two of
these three pieces of misadvice constitutionally deficient
under Strickland v. Washington, 466 U.S. 668 (1984), without
reaching the third, because Parker’s worst-case scenario
was at least 151 months, not 120 months as counsel pre-
dicted, and because drug-quantity stipulations impact
a judge’s assessment of factors under 18 U.S.C. § 3553(a)
in determining the sentence after calculating a de-
fendant’s advisory Guidelines range. Parker, 2009 WL
4043177, at *10.
Parker accepted the deal, pleaded guilty to the conspir-
acy count, and admitted to distributing between 50 and
150 kilograms of cocaine:
THE COURT: So how then do you plead to the
charge in Count 1 of conspiracy
to knowingly and intentionally
possess with intent to distribute
4 Nos. 09-4044 & 09-4046
and to distribute controlled sub-
stances of greater than 50 but
less than 150 kilograms of co-
caine? Do you plead guilty or
not guilty to that charge?
THE DEFENDANT: Guilty.
THE COURT: And you’re doing that volun-
tarily, is that right?
THE DEFENDANT: Yes.
Id. at *7 (quoting Tr. of Feb. 9, 2007, at 22-23). The admitted
quantity of 50 to 150 kilograms put Parker’s base offense
level at 36, which became 32 after the two reductions, thus
giving Parker a Guidelines range of 121 to 151 months
imprisonment. But Parker “believed that he was responsi-
ble for, at most, 15 kilograms,” id. at *3, and he “expressed
reluctance [to his defense counsel] to agree to a quantity
of 50-150 kilograms.” Id. Had Parker pleaded guilty
without admitting to the drug-quantity required to
invoke the plea agreement, and admitted instead to only
15 kilograms without the benefit of the plea agree-
ment, then his calculated Guidelines range might have been
either 78 to 97 months or 97 to 121 months (as Parker
calculates and the government does not dispute), rather
than 121 to 151 months, although the probability of a
lesser range is an issue that we do not address. See Strick-
land, 466 U.S. at 694 (defining the “reasonable probability”
standard a petitioner must show in this context as a
“probability sufficient to undermine confidence in the
outcome”).
Nos. 09-4044 & 09-4046 5
In sum, the district court found that counsel’s advice
about the effects of accepting the plea offer was below the
standard of reasonableness required by the Sixth Amend-
ment, not least because she advised that Parker’s maxi-
mum sentence under the deal would be 120 months,
whereas in reality it was at least 151 months. However,
the district court denied Parker’s petition for relief
because “Parker has failed to show that he was prej-
udiced in the way required by Hill v. Lockhart.” Id. at *12.
II. DISCUSSION
A. Federal Habeas Challenge to Counsel’s Effective-
ness
We review the district court’s denial of Parker’s § 2255
petition for clear error on factual matters and de novo
on questions of law. Tezak v. United States, 256 F.3d 702,
712 (7th Cir. 2001).
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the assistance of counsel for his defense.” U.S. Const.
Amend. VI. The Amendment guarantees, among other
things, the right to counsel’s effectiveness in those pro-
ceedings where a right exists also to have counsel ap-
pointed or retained. Evitts v. Lucey, 469 U.S. 387 (1985);
Glasser v. United States, 315 U.S. 60 (1942); Powell v. Alabama,
287 U.S. 45 (1932). A defendant claiming ineffective
assistance of counsel in a criminal case must show that
counsel’s representation was deficient in that it fell
below an objective standard of reasonableness and that
6 Nos. 09-4044 & 09-4046
counsel’s deficient performance prejudiced him. Strick-
land, 466 U.S. at 688, 694. To establish prejudice, the
defendant must show “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694 (emphasis
added). The prejudice element is established in the
plea bargaining context, as the Supreme Court found in
Hill v. Lockhart, by showing a reasonable probability that
but for counsel’s errors, the defendant “would not have
pleaded guilty and would have insisted on going to trial.” 474
U.S. 52, 59 (1985) (emphasis added).
Parker admits that he would have pleaded guilty
without the plea agreement, and thus would not have
insisted on going to trial as required by Hill. But he urges
us to distinguish Hill and rely instead on the broader
language of Strickland to find prejudice if he can show
that an unconditional plea would have resulted in a
lower sentence. Appellant’s Br. at 31; see also Glover v.
United States, 531 U.S. 198, 203 (2001) (“[A]ny amount
of actual jail time has Sixth Amendment significance.”);
United States v. Wyatt, 574 F.3d 455, 458 (7th Cir. 2009)
(recognizing that a petitioner might be able to show
prejudice if but for counsel’s performance he would
have “enter[ed] an unconditional plea in hope of
obtaining a lower sentence”); Hunter v. United States, 160
F.3d 1109, 1116 (6th Cir. 1994) (Moore, J., concurring)
(“Hill . . . does not foreclose the possibility that in an
appropriate case a petitioner could satisfy the Strickland
prejudice prong by demonstrating a reasonable proba-
bility that but for the alleged errors the conditions of [the
petitioner’s] guilty plea or his sentence would have been
Nos. 09-4044 & 09-4046 7
different.”); Richard Klein, Due Process Denied: Judicial
Coercion in the Plea Bargaining Process, 32 Hofstra L. Rev.
1349. 1368-69 (2004) (arguing that Hill’s prejudice
standard is underinclusive); Emily Rubin, Ineffective
Assistance of Counsel and Guilty Pleas: Toward a Paradigm of
Informed Consent, 80 Va. L. Rev. 1699, 1705-06 (1994) (same).
The government counters that the only court to
address Parker’s argument in this context has rejected it.
See Short v. United States, 471 F.3d 686, 696 (6th Cir. 2006)
(finding no prejudice even if the petitioner could have
received a better sentence by entering an unconditional
plea rather than taking counsel’s advice and accepting a
plea agreement). The government also contends that
Parker’s case is controlled by our precedent finding that
whether a petitioner “could have negotiated a better
plea deal is irrelevant in the ineffective assistance con-
text.” Bethel v. United States, 458 F.3d 711, 720 (7th Cir.
2006); see also United States v. Wyatt, 574 F.3d 455, 458
(7th Cir. 2009); United States v. Martinez, 169 F.3d 1049,
1053 (7th Cir. 1999).
We need not address these arguments because Parker’s
appeal fails for a more fundamental reason: Parker has
only himself to blame for admitting under oath to a
quantity of drugs he now disputes. Prejudice requires a
showing that counsel’s poor performance not only is a
“but-for” cause of the complained-of result, Strickland,
466 U.S. at 694, but also “deprive[s] the defendant of any
substantive or procedural right to which the law entitles
him.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993); see
also Nix v. Whiteside, 475 U.S. 157, 175-76 (1986) (finding
8 Nos. 09-4044 & 09-4046
no prejudice although the outcome would have been
different had the defendant been able to commit perjury).
Parker was not deprived of the right to speak truthfully
when the sentencing judge asked him how he pleaded to
distributing between 50 and 150 kilograms of cocaine.
Nor was he deprived of the right to speak truthfully
when the judge asked whether he made the drug-
quantity admission voluntarily. Parker committed
perjury when he admitted to more than 50 kilograms if
we are to believe his argument in this court that he was
responsible only for 15 kilograms. Had Parker told the
sentencing judge what he now claims is the truth and
admitted to 15 kilograms yet still tried to plead guilty to
the 50 to 150 kilograms as required by the plea agree-
ment, the judge could not have accepted the plea, North
Carolina v. Alford, 400 U.S. 25, 38 (1970), in which case
had he persisted in pleading guilty without the benefit of
the plea agreement, as he argues he would have, then he
might have received one of the lesser sentences we de-
scribed above. (Or he might have received a greater
sentence but, as we also mentioned above, we do not
address that issue. Whatever the resultant sentence
would have been, greater or lesser, it is the one that Parker
now seeks, as his attorney confirmed for us at oral argu-
ment.) As Parker was not denied the ability to respond
truthfully, under oath, to the judge’s questions, and thus
not denied the ability to receive the sentence he claims
would have been better, we cannot say that counsel’s
deficient performance rendered this case’s “result . . .
unreliable or the proceeding fundamentally unfair.”
Fretwell, 506 U.S. at 372 (citing Strickland, 466 U.S. at 687).
Nos. 09-4044 & 09-4046 9
Moreover, perjury is illegal, see 18 U.S.C. § 1621, and a
defendant cannot establish prejudice “by illegal means.
Can anyone doubt what practices and problems would
be spawned by such a rule and what volumes of litiga-
tion it would generate?” Nix, 475 U.S. at 176. Indeed, the
illegality of Parker’s acts renders this one of those “situa-
tions in which it would be unjust to characterize
the likelihood of a different outcome as legitimate ‘preju-
dice.’ ” Williams v. Taylor, 529 U.S. 362, 391-92 (2000); see
also Goodman v. Bertrand, 467 F.3d 1022, 1027-28 (7th Cir.
2006) (quoting Washington v. Smith, 219 F.3d 620, 632-33
(7th Cir. 2000)) (finding that the prejudice standard
“looks beyond outcome determination to the funda-
mental fairness of the proceeding . . . in cases where
the defendant challenges his conviction based upon
unusual circumstances that, as a matter of law, do not
typically inform the court’s inquiry.”).
Thus Parker’s prejudice arguments fail, because the
Supreme Court’s Sixth Amendment jurisprudence estab-
lishes that a defendant’s illegal activity intervenes to
sever any causal connection between counsel’s poor
performance and the disputed result. Nix, 475 U.S. at 176.
Even could this jurisprudence be read more generally as
establishing that counsel’s poor performance must be
not only a but-for cause, but also the proximate or legal
cause of the disputed result, see, e.g., Hinton v. Rudasill, 624
F.Supp.2d 48, 52 (D.D.C. 2009); Arakelian v. United
States, No. 08 Civ. 3224, 2009 WL 211486, at *6
(S.D.N.Y. Jan. 28, 2009); Stravers v. Schriro, No. CV
07-0466-PHX-DGC, 2008 WL 3285915, at *3 (D. Ariz.
Aug. 7, 2008), neither has Parker established that counsel’s
10 Nos. 09-4044 & 09-4046
misadvice legally caused his larger sentence. Just as
oxygen, though a but-for cause or necessary condition
of fire, does not legally cause an arson, for rather the
person setting the fire does, see United States v. Hatfield,
591 F.3d 945, 948 (7th Cir. 2010), neither did counsel’s
misadvice legally cause Parker’s resulting sentence.
Rather, we find that his perjury did, because Parker
raises no argument that his counsel directly encouraged,
foresaw, or otherwise proximately caused Parker’s
perjury, see, e.g., Corcoran v. Levenhagen, 593 F.3d 547, 551
(7th Cir. 2010) (“Arguments not raised on appeal . . . are
waived.”), much less any argument as to what the
proper test for proximate cause should be in this context.
Cf. Hemi Group v. City of New York, 130 S.Ct. 983, 991 (2010)
(quoting Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258,
268 (1992)) (“The concepts of direct relationship and
foreseeability are of course two of the ‘many shapes
[proximate cause] took at common law.’ ”).
B. Direct Appeal of Sentence Calculation
Parker also raises two challenges to his sentence cal-
culation. First, he claims that the district court committed
a clear error in finding 50 to 150 kilograms of cocaine
attributable to him when performing the sentence cal-
culation. We find no clear error here, because Parker
admitted to the amount and asks us to find the district
court’s reliance on his admission in error only because
he was lying at the time, or so he says. But what is to
say that he is not lying now?
Nos. 09-4044 & 09-4046 11
Second, Parker claims that the district court abused its
discretion by giving Parker a sentence that was unrea-
sonable. But the district court sentenced Parker to the
bottom of his Guidelines range, see, e.g., United States v.
Zohfeld, 595 F.3d 740, 743 (7th Cir. 2010) (“A within-
Guidelines sentence is presumed reasonable.”) (citations
omitted), and Parker presents no reason to question
the district court’s application of the factors listed in
18 U.S.C. § 3553(a), except to say that the district court
improperly considered the larger drug quantity, an argu-
ment we just rejected as supported only by the say-so of
an admitted perjurer.
III. CONCLUSION
Parker’s petition for relief based on ineffective
assistance of counsel is D ENIED because he provides no
reason to suggest that his counsel’s erroneous advice, not
his own perjury, caused him to receive the disputed
sentence.
The district court’s imposition of Parker’s sentence is
A FFIRMED because Parker attempts to undermine it only
by asserting that the district court had no business be-
lieving his statements made under oath, a proposition
we reject.
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