Ducato, Philip v. United States ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 02-2044
PHILIP DUCATO,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CV 6663—Blanche M. Manning, Judge.
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ARGUED NOVEMBER 13, 2002—DECIDED DECEMBER 18, 2002
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Before POSNER, COFFEY, and MANION, Circuit Judges.
POSNER, Circuit Judge. The defendant was convicted by
a jury of conspiracy to possess cocaine with intent to dis-
tribute it, and was sentenced to 151 months in prison after
the district judge increased his base offense level because
she found that he had possessed a gun during the commis-
sion of the offense. U.S.S.G. § 2D1.1(b)(1). After we affirmed
the judgment in United States v. Cusimano, 148 F.3d 824
(7th Cir. 1998), the defendant moved under 28 U.S.C.
§ 2255 to vacate his conviction and sentence on the ground
that his trial lawyer had provided ineffective assistance
by failing, both at the trial of guilt and at the sentenc-
ing hearing, to present evidence from the defendant’s rela-
2 No. 02-2044
tives that might have shown that he was unaware that the
gun was in the glove compartment of the car that he had
driven to the place at which he was arrested following
a controlled buy. His father and brother would have tes-
tified that the car was owned by the father, not by the
defendant; that the defendant had bought the gun but
given it to his father as a gift and the father, who needed
a gun for self-protection when he made bank deposits,
had left the gun in the glove compartment without telling
the defendant that he had done so. The district judge de-
nied the section 2255 motion and the defendant has ap-
pealed.
The argument that his lawyer should have presented
at trial the evidence that we have just summarized is friv-
olous. While the discovery of the gun in the glove com-
partment after the defendant’s arrest was mentioned at
the trial, he had not been charged with a gun offense and
the evidence of his guilt of the offense with which he had
been charged was overwhelming. The lawyer may have
been remiss in not presenting the evidence at the sentenc-
ing hearing, but this is too uncertain to justify our revers-
ing the district judge. The testimony of the defendant’s
close relatives would not have had much credibility; and
it was telling that the defendant was arrested when he
started walking toward his car—the undercover agent who
was making the controlled buy was afraid that the defen-
dant was going to the car to get a gun.
But there is a more fundamental reason for affirmance.
The district judge who denied the section 2255 motion with
the relatives’ affidavits before her was the same judge who
had found that the defendant had possessed a gun dur-
ing the commission of the offense, a finding that implied
that the defendant knew the gun was in the glove compart-
ment, since unknowing possession would not have justified
No. 02-2044 3
an increase in punishment. United States v. Highsmith, 268
F.3d 1141, 1142 (9th Cir. 2001); United States v. Myers, 150
F.3d 459, 465 (5th Cir. 1998). The affidavits didn’t cause
her to change her mind and so it is extremely unlikely
that live testimony tracking the affidavits would have
done so. Kavanagh v. Berge, 73 F.3d 733, 737 (7th Cir. 1996);
In re Grand Jury Matter, 906 F.2d 78, 85-86 (3d Cir. 1990). The
failure to present the evidence at the sentencing hearing
was therefore not prejudicial.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-18-02