he had been sentenced. In the
presentence report ("PSR"), the probation officer had recommended grouping
all the offenses, but the government successfully argued otherwise. In
his § 2255 motion, defendant further alleged that his attorneys
provided ineffective assistance by failing to adequately argue the
grouping issue at the time of sentencing and by failing to raise the
issue at all on direct appeal. In arguing that grouping was appropriate,
defendant relied in part on United States v. Wilson, 98 F.3d 281 (7th
Cir. 1996) ("Wilson I"), which was issued after defendant's direct appeal
was argued, but approximately one and one-half months before Glover I was
In response to the § 2255 motion, the government contended that
defendant's attorneys were not ineffective because they had adequately
urged grouping at the time of sentencing and were not ineffective for
failing to raise the issue on appeal because, according to the
government, the Seventh Circuit had not yet ruled on the issue and all
other circuits had reached holdings that grouping of money laundering
with other offenses was inappropriate. As to the prejudice prong of an
ineffective assistance of counsel claim, the government contended that a
one-or-two-level decrease to the offense level was insufficient to
satisfy the prejudice prong. The government made no argument that
grouping was improper following Wilson I, but did contend that grouping
would result in a total offense level of 27 (not 26) and a guideline
range of 70 to 87 months.
In ruling on the § 2255 motion, this court rejected the
government's contention that grouping would have resulted in only a
one-level change. United States v. Glover, 1998 WL 611451 *1 & n.1 (N.D.
Ill. Sept. 8, 1998) ("Glover II"). The government's brief was construed
as containing an implicit concession that, in light of Wilson I, grouping
was appropriate. See Glover II, 1998 WL 611451 at *1. However, it was
unnecessary to decide whether counsel's performance was deficient at
sentencing or on appeal, because it was held that defendant could not
satisfy the prejudice prong. Following Seventh Circuit precedent, see
Martin v. United States, 109 F.3d 1177, 1178 (7th Cir. 1996), cert.
denied, 522 U.S. 931 (1997); Durrive v. United States, 4 F.3d 548, 551
(7th Cir. 1993), it was held that the two-level adjustment to defendant's
offense level was not significant enough to satisfy the prejudice prong
of an ineffective assistance of counsel claim. Id. at *2-3.
Still proceeding pro se, defendant appealed the denial of § 2255
relief. The government's brief before the Seventh Circuit focused
entirely on whether the prejudice prong could be satisfied by the
potential decrease in defendant's sentence. See Glover v. United States,
2000 WL 1673207 *1a-21a (U.S. Oct. 27, 2000) (petitioner's reply brief,
appendix A*fn2). See also Glover v. United States, 121 S.Ct. 696, 699-700
(2001) ("Glover IV"). On direct appeal before the Seventh Circuit, the
government made no argument that grouping would have resulted in an
increase in the guideline range, nor did it repeat its argument that
there would be only a one-level decrease. The Seventh Circuit affirmed on
the ground that, under its precedents, the potential decrease in
defendant's sentence was not sufficiently significant to satisfy the
prejudice prong. Glover v. United States,
182 F.3d 921, 1999 WL 511523
(7th Cir. July 15, 1999) (unpublished order).
The Supreme Court granted certiorari.*fn3 Before the Supreme Court,
the government conceded that the Seventh Circuit's rule that satisfying
the prejudice prong requires a significant change in a sentence was
inconsistent with Supreme Court precedent. See Glover v. United States,
2000 WL 1469341 *18-24 (U.S. Sept. 27, 2000) (respondent's brief)
("Resp. Br."); Glover IV, 121 S.Ct. at 700. Instead, the government again
argued, as it had in the district court, that counsel's performance was
not deficient. Resp. Br., 2000 WL 1469341 at *24-34. For the first time,
the government also argued that there was no prejudice because (a)
defendant's offenses should not be grouped, id. at *38-44, and (b) even
if they should be grouped under U.S.S.G. § 3D1.2(d), such grouping
would have resulted in a total offense level of 30 and a lengthier
guideline range, id. at *44-47.
As was conceded by the government, the Supreme Court held that the
Seventh Circuit requirement of a significant change of sentence was
error. Glover IV, 121 S.Ct. at 700-01. The Supreme Court declined to
consider the arguments regarding counsel's performance, the
appropriateness of grouping, or grouping's effects on the guideline range
because these arguments had not been raised in nor passed upon by the
Seventh Circuit and they were outside the questions presented by the
petition for certiorari. Id. at 701. "Whether these issues remain open,
and if so whether they have merit, are questions for the Court of Appeals
or the District Court to consider and determine in the first instance."
Id. The case was reversed and remanded for further proceedings consistent
with Glover IV.
On remand before the Seventh Circuit, the government argued that the
denial of § 2255 relief should be affirmed on the same alternative
grounds that were argued before the Supreme Court. Defendant requested
that the case be remanded to the district court for expedited
proceedings. Defendant represents that, without any change to his
sentence, he is projected to complete his term of incarceration in
January 2002. If successful on his § 2255 motion, he may have already
fully served a new sentence of incarceration that might be imposed. On
March 13, 2001, the Seventh Circuit issued the following order; "The
Supreme Court having reversed the judgment of this Court and remanded
this case for reconsideration in light of its opinion in Glover v. United
States. This case is REMANDED for further proceedings consistent with the
aforesaid Supreme Court opinion. Because of the possibility of mootness,
the district court should expedite its reconsideration."
On remand before this court, the parties requested permission to file
additional briefs rather than have this court rule upon the originally
filed briefs. Defendant moved for summary judgment and the government
again seeks to raise the alternative grounds for affirmance. As to the
government's contentions regarding lack of prejudice, defendant contends
these arguments are waived because not raised until the case was before
the Supreme Court and, as to the contention that grouping results in a
higher sentence, also waived because it was not raised at the time of
In Wilson I, defendant Wilson was found guilty of both mail fraud and
laundering. Calculated separately, each had an offense level of
23, with the money laundering calculation being based solely on the
amount of money laundered, not on the additional amounts involved in the
mail fraud. Pursuant to U.S.S.G. § 3D1.4, two levels were added for
having multiple offenses. Also, three levels were subtracted for
acceptance of responsibility for a total offense level of 22 and a
guideline range of 41 to 51 months. Wilson was sentenced to 51 months'
incarceration. See Wilson I, 98 F.3d at 282. On direct appeal, it was
held that Wilson's mail fraud and money laundering offenses should have
been grouped together pursuant to § 3D1.2(d) and the case was
remanded for resentencing. Id. at 283-84. On remand, the district court
determined that, once grouped under § 3D1.2(d), mail fraud became
relevant conduct for the money laundering offense and therefore the
offense level for money laundering was computed using a higher dollar
figure for the value of the laundered funds, that is by also including
the amounts involved in the mail fraud. See U.S.S.G. § 2S1.1(b)(2).
Thus, on remand, Wilson's total offense level was 25 which produced a
guideline range of 57 to 71 months. Wilson was sentenced to 71 months'
incarceration, 20 months longer than before the remand. See United States
v. Wilson, 131 F.3d 1250, 1251 (7th Cir. 1997) ("Wilson II"). Wilson
again appealed and Wilson II holds that the government waived the
contention that there was additional relevant conduct for the money
laundering offense because the government did not raise such an objection
before the first sentencing. Id. at 1253-54. See also United States v.
Wyss, 147 F.3d 631, 633 (7th Cir. 1998). Wilson II specifically holds
that it did not matter that the district court originally held otherwise
as to grouping because the same relevant conduct arguments could have
been made regardless of the ruling on grouping. See Wilson II, 131 F.3d
at 1253. As regards the government's present contention that grouping
under § 3D1.2(d) would have resulted in a higher guideline range,
Wilson II is directly on point. The government is precluded from
presently raising that contention.
The issue of whether grouping is appropriate is in a different
posture. The government did make such an argument at the time of
sentencing and this court ruled in the government's favor based on the
then-existing precedents that were cited. However, in response to
defendant's § 2255 motion, the government made no such argument in
light of the then-existing Seventh Circuit case law and this court
construed the government's brief as containing an implicit concession
that grouping was appropriate in light of Wilson I. See Glover II, 1998
WL 611451 at *1. On the § 2255 appeal, there was also no such
argument made to the Seventh Circuit. The argument was raised for the
first time before the Supreme Court.
The issues available on remand may be limited by directions contained
in the mandate of the higher court. United States v. Polland, 56 F.3d 776,
777-78 (7th Cir. 1995). Here, though, the Supreme Court left it to this
court or the Seventh Circuit to determine whether the additional issues
"remain open" and, "if so," to address the merits. Glover IV, 121 S.Ct.
at 701. The Seventh Circuit's judgment left it for this court to decide
that issue in the first instance. The mandate itself, therefore, does not
limit the issues that may be considered. Instead, rules of law of the
case and waiver must be considered. See Polland, 56 F.3d at 779 & n.1;
Shore v. Warden, Stateville Prison, 942 F.2d 1117, 1123-24 (7th Cir.
1991), cert. denied, 504 U.S. 922 (1992); Heller International Corp. v.
1994 WL 386421 *5 (N.D. Ill. July 19, 1994). The law already
established on a prior appeal may be reconsidered in only limited
circumstances analogous to grounds for granting relief under Fed.R.Civ.P.
60(b). See Barrow v. Falck, 11 F.3d 729, 731 (7th Cir. 1993);
Shore, 942 F.2d at 1123-24.
When the § 2255 motion was originally before this court, the
government made no argument that defendant could not have been prejudiced
because grouping was not appropriate. On appeal to the Seventh Circuit,
this contention was not advanced as an alternative ground for
affirmance. Ordinarily, failing to raise an alternative ground for
affirmance on appeal precludes raising that ground on remand. Barrow, 11
F.3d at 730-31; Health Care Service Corp. v. Brown & Williamson Tobacco
Corp., 208 F.3d 579, 581 (7th Cir. 2000). Also, failing to raise an issue
in the district court precludes raising it on appeal. United States v.
Sertich, 95 F.3d 520, 526 (7th Cir. 1996), cert. denied, 519 U.S. 1113
(1997). Here, the government's failure to raise the issue when the case
was first before the district court and first on appeal to the Seventh
Circuit waives the issue for purposes of remand absent special
circumstances. Walsh v. Mellas, 837 F.2d 789, 799-800 (7th Cir.), cert.
denied, 486 U.S. 1061 (1988); Heller, 1994 WL 386421 at *5. The
government does not point to any circumstances that prevented it from
raising this issue earlier than the Supreme Court appeal nor does it
point to any other circumstances that would justify now raising the
issue. The argument that, following the Seventh Circuit decision in
Wilson I, grouping would be inappropriate is waived.
But even if the merits of the issue should be reached, the government's
contention lacks merit. Both at the time of sentencing and presently,
§ 3D1.2(d) provided: "All counts involving substantially the same
harm shall be grouped together into a single Group. Counts involve
substantially the same harm within the meaning of this rule: . . . (d)
When the offense level is determined largely on the basis of the total
amount of harm or loss, the quantity of a substance involved, or some
other measure of aggregate harm, or if the offense behavior is ongoing or
continuous in nature and the offense guideline is written to cover such
behavior." Wilson I involved mail fraud and money laundering. The Seventh
Circuit found it particularly appropriate to group those charges because
the money laundering helped to perpetuate the mail fraud scheme, id., 98
F.3d at 283-84, both through an effort to conceal the fraud and as a
means of paying off earlier investors in a Ponzi fashion, see id. at
282-83. The Seventh Circuit also noted that, without the fraud there
would have been no funds to launder. Id. (quoting United States v.
Mullens, 65 F.3d 1560, 1564 (11th Cir. 1995), cert. denied, 517 U.S. 1112
(1996)). Additionally, it noted that mail fraud and money laundering were
included in § 3D1.2's list of offenses that could be grouped and that
both involved determining the offense level largely based on the total
amount of harm or loss. Id. at 283. Wilson I also notes that, where
proceeds of a scheme are laundered in order to conceal the nature of the
transaction, the victim of the scheme is also a victim of the money
laundering. Id. In United States v. Emerson, 128 F.3d 557, 564-66 (7th
Cir. 1997), the Seventh Circuit followed Wilson I. In Emerson, all the
mail fraud offenses were completed prior to the money laundering, so
arguably the money laundering did not perpetuate or promote the fraud.
See Emerson, 128 F.3d at 565. However,
unlike Wilson who pleaded guilty
to violating the concealment prong of money laundering, Emerson was found
guilty under the promotion prong. Thus, even though Emerson's money
laundering did not actually perpetuate the fraud, Emerson had intended to
use it for that purpose. See id. at 565-66. Grouping was held to be
Wilson I and Emerson hold that money laundering that actually does or
is intended to promote a related offense should be grouped with the other
offense under § 3D1.2(d). The cases do not reach the issue of whether
money laundering that is not intended to promote the offense can also be
grouped under that subsection. Nor do they resolve the question of
whether grouping would be appropriate under other subsections of §
3D1.2. In the present case, defendant was charged with engaging in a RICO
conspiracy which involved receiving kickbacks from persons who did
business with Union benefit funds that defendant controlled or
influenced. Most of the kickbacks were paid in cash, but some were paid
by check. Laundering five checks is the conduct underlying the two money
laundering counts and is also charged as part of the conspiracy and as
racketeering acts. The checks were proceeds of the kickback scheme and
were laundered in order to continue to conceal the kickback scheme.
Subsequent to laundering the checks, defendant received additional cash
kickbacks from the same payer, Susan Bennett. Additionally, attempting to
influence the grand jury testimony of a currency exchange employee who
assisted in the laundering is also charged as a racketeering act. Because
of a witness's ability to identify Bennett, the witness's testimony went
to the kickback charges as well as the laundering charges.
While there is no evidence that the laundered funds were reinvested in
the scheme as happened in Wilson I, like Wilson I laundering was a means
of concealing the kickback scheme so that it could and did continue.
Since the laundered funds were proceeds of the kickback scheme, the Union
benefit funds were victims of both the kickbacks and laundering, both
offenses are listed in the guideline and the applicable guidelines base
the offense level largely on the value of kickbacks or money laundered,
and the laundering was done in order to conceal and thus perpetuate the
kickback scheme, grouping under § 3D1.2(d) is appropriate.
Alternatively, case law supports grouping under § 3D1.2(b). See
United States v. Cusumano, 943 F.2d 305, 313-14 (3d Cir. 1991), cert.
denied, 502 U.S. 1036 (1992).
As discussed above, had the issue been raised on direct appeal, it
would have been held that the money laundering and kickback offenses
should be grouped and the government would have been precluded from
arguing that grouping resulted in a higher guideline range. Defendant
satisfies the prejudice component of an ineffective assistance of counsel
claim. It still must be considered whether counsel's performance was
Defendant must also show "that his counsel's performance was
constitutionally deficient, `meaning that the performance fell below the
legal profession's objective standards for reasonably effective
representation.'" Anderson v. Sternes, 243 F.3d 1049, 1057 (7th Cir.
2001) (quoting United States ex rel. Partee v. Lane, 926 F.2d 694, 701
(7th Cir. 1991), cert. denied, 502 U.S. 1116 (1992)). The performance of
counsel is "insufficient when counsel omits a `significant and obvious
issue' without a legitimate strategic reason for doing so." Howard v.
Gramley, 225 F.3d 784, 790 (7th Cir. 2000) (quoting Mason v. Hanks,
97 F.3d 887, 893 (7th Cir. 1996)). The adequacy of the attorney's
arguments must be viewed from the perspective of the existing precedents
at the time, not based on the hindsight of later decisions. Lilly v.
Gilmore, 988 F.2d 783, 786 (7th Cir.), cert. denied, 510 U.S. 852
(1993). "The Sixth Amendment does not require counsel to forecast changes
or advances in the law, or to press meritless arguments before a court."
As to the representation on appeal, the court must
decide whether it was in the realm of competent
appellate representation to decline to raise a
particular point on appeal, considering both the
arguments that might be made and the governing
standard of review. Assuming that a competent lawyer
would have taken an appeal at all (a question we need
not consider here, since there was no threat of a
sentence-enhancing remand that might make the risks of
an appeal outweigh its potential benefits), we
evaluate counsel's performance by looking at the
issues that the defendant had available and
determining whether counsel's choice of the best of
them represented the same kind of strategic choice we
permit for trial decisions.
Howard, 225 F.3d at 790-91. An appellate attorney should be selective in
the issues raised and it is not good appellate advocacy to raise every
possible argument no matter how weak. However, where only one or two
issues were actually raised on appeal, those issues will not be lost amid
the briefing nor page limitations reached by adding one or two more
issues. See id. at 791. "Significant issues which could have been raised
should . . . be compared to those which were raised. Generally, only when
ignored issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome." Gray v.
Greer, 800 F.2d 644, 646 (7th Cir. 1986).
In the PSR, the probation officer recommended grouping all the offenses
pursuant to § 3D1.2(c). The government filed a position paper in which
it devoted ten pages to the grouping issue. The probation officer
provided an addendum to the PSR in which she continued to recommend
grouping and to which she attached the government's position paper.
Although the disagreement had been flagged by the probation officer and
counsel for defendant received the government's position paper
approximately two weeks before the date of sentencing, there is no
indication that counsel did any research or preparation as to the
grouping issue. Counsel did not file any written opposition and when
questioned about the issue at the sentencing, counsel's entire response
was as follows:
THE COURT: . . . The first question is grouping, the
probation officer has grouped all of the offenses
together rather than separately. Mr. Murtaugh, do you
want to comment on that?
MR. MURTAUGH: No, your Honor. I just think it's
appropriate. It's one common — if the jury was
and did believe apparently that it was one joint
effort by Johnson and Mr. Glover, I think that all of
the transactions that the government asserts should be
considered individually ought not be considered
individually. I think these are appropriately
Sept. 21, 1995 Tr. at 3-4.