Suggs, Alonzo v. United States ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2220
ALONZO SUGGS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04 C 730—William D. Stiehl, Judge.
____________
ARGUED SEPTEMBER 26, 2007—DECIDED JANUARY 16, 2008
____________
Before MANION, EVANS, and SYKES, Circuit Judges.
EVANS, Circuit Judge. Alonzo (who one of the key
witnesses in this case called “Lo”) Suggs was found guilty
after a 2001 jury trial of conspiracy to possess cocaine
with intent to distribute. He was also convicted on an
unrelated charge of being a felon in possession of a fire-
arm. Suggs was sentenced to a term of 300 months on the
cocaine conviction and a concurrent term of 120 months
on the firearm count.
Suggs (and a codefendant, Joyce Ogle, who was also
convicted) took a direct appeal, arguing that the dis-
trict court committed plain error in allowing the gov-
ernment to present evidence of multiple conspiracies, one
2 No. 06-2220
of which was not charged in the indictment. We re-
jected his appeal (as well as Ogle’s) and affirmed the
judgment of the district court on February 14, 2003.
United States v. Suggs, 59 Fed. Appx. 818 (7th Cir. 2003).
Subsequent to our 2003 order, Suggs returned to the
district court and, with new counsel1 at his side, filed a
§ 2255 petition alleging that his prior counsel rendered
ineffective assistance by failing to raise two arguments
on appeal that had a much greater chance of success
than the one argument which was actually advanced. The
district court denied the petition, and Suggs is now back
here a second time seeking a reversal of that order.
The facts underlying Suggs’ conviction were noted in
our 2003 order, and they will not be repeated here. As
relevant for our purposes, we step back a moment to July
of 2002 when prior counsel sent a six-page letter to Suggs
outlining his strategy for appeal. In the letter, counsel
identified three district court errors that he said had
“great merit” and would be worthy of airing on appeal.
According to counsel, the district court mistakenly:
(1) admitted evidence of an uncharged conspiracy involv-
ing Ogle and Suggs; (2) admitted Ogle’s written state-
ment in violation of Suggs’ right to confrontation; and
(3) enhanced Suggs’ sentence based on an improper
adjustment to his guideline range.
Later, however, in Suggs’ appellate brief, his attorney
inexplicably raised only the uncharged conspiracy issue. As
we said, we rejected this argument and affirmed Suggs’
conviction and sentence in 2003.
1
New counsel, Thomas M. McGrath from Mayer, Brown, Rowe
& Maw of Chicago, has done a splendid job representing
Mr. Suggs on this appeal. As always on pro bono appointments
accepted by attorneys from Mayer, Brown, Marc Kadish has
assisted Mr. McGrath on this appeal.
No. 06-2220 3
Suggs now argues that his prior attorney’s failure to
raise the Confrontation Clause and sentencing issues
deprived him of his Sixth Amendment right to effective
assistance of appellate counsel. In evaluating the dis-
trict court’s decision, we review fact findings for clear
error and issues of law de novo. Galbraith v. United States,
313 F.3d 1001, 1006 (7th Cir. 2002).
We employ the familiar two-pronged test outlined by
the Supreme Court in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to evaluate
the effectiveness of both trial and appellate counsel. Gray
v. Greer, 800 F.2d 644, 646 (7th Cir. 1985). To establish
ineffectiveness, Suggs must demonstrate that his ap-
pellate counsel’s performance was deficient and that this
deficiency prejudiced him. Gray, 800 F.2d at 646.
Suggs’ ineffectiveness claim rests on his belief that
his attorney failed to raise two viable arguments on
appeal. To evaluate Suggs’ claim, we must first analyze
the trial court record to determine whether his appellate
attorney, in fact, ignored “significant and obvious” issues.
Id. We must then compare each neglected issue to, in this
case, the issue actually raised on appeal. Id.
Only if an ignored issue is “clearly stronger” than the
arguments raised on appeal will the attorney’s perfor-
mance be considered constitutionally deficient (thereby
satisfying the first prong of the Strickland test). To
establish prejudice—the other component of the Strick-
land test—Suggs must show that there is a reasonable
probability that, but for the deficient performance of his
attorney, the result of the appeal would have been differ-
ent. Strickland, 466 U.S. at 694.
Suggs argues that his attorney should have appealed the
district court’s decision to admit Ogle’s written statement
and her telephone conversations with John Ellebracht.
Ellebracht, as we noted in 2003, was arrested at a
4 No. 06-2220
St. Louis airport while carrying a suitcase loaded with
over 7 kilos of cocaine. After his arrest, Ellebracht
quickly agreed to cooperate in an investigation of Ogle
and “Lo.” Because these statements implicated Suggs—her
codefendant—at a joint trial during which Ogle did not
testify, the introduction of this evidence, Suggs argues,
violated his right to confrontation. See Bruton v. United
States, 391 U.S. 123, 125-26 (1968). While we agree that
this Bruton issue may have been (1) significant and
obvious, and (2) clearly stronger than the uncharged
conspiracy argument Suggs’ attorney raised on direct
appeal, the attorney’s failure to raise this issue did not
prejudice Suggs.
We agree with Suggs that the confrontation issue was
obvious, clear-cut, and important. Suggs’ attorneys
knew of the problem: his trial counsel objected to the
introduction of this evidence, and his counsel, as we noted,
described the issue as one of “great merit” in his pre-
appeal brief letter.
The introduction of Ogle’s statements violated Bruton:
a confession of a nontestifying codefendant (Ogle) in-
criminating the defendant (Suggs) was admitted into
evidence at their joint trial.2 It was clear from Ogle’s
narrative that Suggs was involved in the conspiracy: he
received the phone calls of a drug courier (Ellebracht) and
2
The government, also, could not have dodged the Bruton
problem by arguing that Ogle’s statement fell under the Ohio v.
Roberts umbrella. Ogle’s statement, which spread the blame
for the conspiracy to Suggs, was “inherently unreliable,” and
thus did not fall within a “firmly rooted” hearsay exception.
Lilly v. Virginia, 527 U.S. 116, 133, 119 S. Ct. 1887, 1898 (1999).
Nor was her statement especially trustworthy. She had an
incentive to curry favor with the agents and to deflect blame
from Ellebracht, her former lover, for whom she acknowledged
she “[w]ould do anything.”
No. 06-2220 5
ordered Ogle (Suggs’ henchperson) to do his dirty work (to
meet with that courier).3
Even if we assume, however, that the Bruton issue was
substantially stronger than the uncharged conspiracy
argument counsel raised on appeal (the strength of
which was dubious, as we will explain), the district
court’s error in receiving Ogle’s statements was harm-
less. Even without the statements, the evidence tying
Suggs to the drug conspiracy was very strong. Although
Ogle’s statements confirmed details of a July 2000 drug
delivery, the government established all material facts
of that event through Ellebracht’s testimony.
While on the stand, Ellebracht appeared to have some
memory problems (once even demonstrating the risks of
drug use and apparently forgetting which state—Missouri
or Illinois—he was then in). Nonetheless, he told a con-
vincing story of how Suggs recruited him to work as a
drug courier. During the first trip, Suggs gave Ellebracht
a large amount of money to deliver to Phoenix; during
later trips, Ellebracht transported luggage that he cer-
tainly knew was loaded with drugs.
The government introduced several pieces of evidence
that supported Ellebracht’s story. In his wallet, Ellebracht
carried a business card on which he had written “Lo’s”
phone number. After his arrest, Ellebracht picked “Lo” out
of a photo lineup and, later, identified Suggs in court
as “Lo.” The police confirmed the details of 20 of Elle-
bracht’s trips to Phoenix. Additionally, three witnesses—
Marico Bratcher, Stacy Wilkins, and Kevin Wren—
independently identified Suggs as their regular supplier
of cocaine.
3
Even though Ogle, in her statement, referred to “Lo” and not
to Suggs directly, nicknames fall within Bruton’s protection. Gray
v. Maryland, 523 U.S. 185, 186, 118 S. Ct. 1151, 1152 (1998).
6 No. 06-2220
Considered as a whole, these facts demonstrate that
any error Suggs’ appellate attorney made in failing to
raise the Bruton issue had no effect on the outcome of his
appeal. Thus, because Suggs cannot establish that he
was prejudiced by any error on this point, his first inef-
fectiveness argument fails. Suggs’ second argument,
however, has legs.
Suggs argues that his attorney should have attacked
the sufficiency of the information underlying the dis-
trict court’s decision to enhance Suggs’ guideline range
by two levels under U.S.S.G. § 2D1.1(b)(1). This omission,
we think, satisfies both prongs of the Strickland test.
At sentencing, the district court concluded that Suggs
deserved a two-point enhancement because a witness,
Wren, “testified that he had dealings with [Suggs], saw
him with a gun, saw him carry the gun, he had the gun.”
As Suggs now correctly points out, however, Wren’s
testimony doesn’t quite fit this description. In fact, Wren
testified only that he saw Suggs carrying one or more
“weapons”:
Q. [Prosecutor] Did you ever see him carrying any
weapons?
A. [Kevin Wren] Yes.
Q. And was that on more than one occasion?
A. Maybe once or twice at the most.
While we are hard pressed to believe that Suggs was
carrying pepper spray or some other unobjectionable
implement, Wren’s testimony does not establish that
Suggs carried a “dangerous” weapon within the meaning
of § 2D1.1(b)(1). The district court’s decision on this
point was triggered, no doubt, by an error in the PSR,
which stated that “according to the government,” Wren
testified that he saw Suggs in possession of firearms
No. 06-2220 7
during the conspiracy. This error was repeated in the
addendum to the PSR and in the government’s represent-
ations to the court at sentencing.
The error was also obvious. Suggs’ trial counsel objected
to the enhancement, arguing that “no direct evidence”
indicated that Suggs possessed a gun during the con-
spiracy. Also, in his letter to Suggs, prior counsel empha-
sized that he “positively want[ed] to raise the errors
made by the court in accepting the [§ 2D1.1(b)(1)] PSI
recommendation.” While neither of Suggs’ attorneys
identified the specific inconsistency between the district
court’s conclusion and Wren’s actual testimony, “the
groundwork had obviously been laid,” Mason v. Hanks,
97 F.3d 887, 894 (7th Cir. 1996), to contest on appeal the
findings underlying the weapon enhancement.
This issue was also significant. We generally give
great deference to the district court’s factual findings
underlying sentencing decisions. See United States v.
Johnson, 227 F.3d 802, 812 (7th Cir. 2000). Here, though,
the district court’s conclusion that Suggs possessed a
dangerous weapon was based on an inaccurate recollec-
tion of—or an unreasonable inference from—Wren’s
testimony. We cannot assume that the “weapon” carried
by Suggs, if Wren’s statement is reliable, was neces-
sarily a “dangerous weapon” as that term is defined in
Application Note (D) to § 1B1,1 of the guidelines.
Also, this issue was clearly stronger than the variance
argument Suggs’ attorney raised on appeal. Suggs’ attor-
ney faced an uphill battle on that argument, since a
claim of a fatal variance is treated as an attack on the
sufficiency of the evidence, United States v. Hewlett, 453
F.3d 876, 879 (7th Cir. 2006). Challenging the sufficiency
of the evidence is always a “daunting” task, United States
v. Stevens, 453 F.3d 963, 965 (7th Cir. 2006), with a tough
standard: if a reasonable juror could have concluded that
8 No. 06-2220
Suggs was a part of the single, charged conspiracy, a
variance is not fatal. Hewlett, 453 F.3d at 879. Indeed,
when we considered this issue on Suggs’ direct appeal,
we concluded that the evidence tying Suggs to the
charged conspiracy was “overwhelming.”
Finally, we conclude that Suggs was prejudiced by his
attorney’s failure to raise the § 2D1.1(b)(1) issue. A
reduction of Suggs’ base offense level from 39 to 37 would
have reduced his guideline range from 292-365 months
to 235-293 months. That change could very well net
Suggs a much shorter sentence on the conspiracy count.
For these reasons, we VACATE Suggs’ sentence and
REMAND for resentencing. In all other respects, the
judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-16-08