Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 99 CR 62--William C. Lee, Chief Judge.
Before Coffey, Manion, and Williams, Circuit Judges.
The opinion of the court was delivered by: Williams, Circuit Judge
Freeman Holman, the defen- dant in this direct appeal, claims that he received ineffec- tive assistance of counsel because during trial his attorney conceded guilt to one of the four counts he faced. He also alleges that the district judge erred when calculating his sentence. We find that he was not deprived of his Sixth Amendment right to the effective assistance of counsel and that no reversible errors were made during his sentencing.
On July 31, 1999, Holman was arrested on his way to meet Joyce Lawson, a police informant who arranged to meet Holman and purchase a small quantity of crack co- caine from him. As a result, he was indicted on one count of knowing and intentional possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count I). A few months later, Holman was arrested when officers found a revolver and crack cocaine in his car. A superceding indictment added three charges based on his second arrest--possession of cocaine base with intent to distribute, possession of a firearm and ammunition by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Counts II-IV). Holman was found guilty on all counts by a jury after a two-day trial, sentenced to 248 months' imprisonment, and now appeals.
A. Ineffective Assistance of Counsel
Holman claims he was denied effective assistance of counsel because his attorney conceded at trial that Holman was guilty of Count I. His challenge is based on the famil- iar standard of Strickland v. Washington, 466 U.S. 668 (1984), which requires that defendants show that their attorney's performance was deficient and that they suffered prejudice as a result of this deficient performance. Id. at 688, 692. *fn1 Such claims are mixed questions of law and fact that we review de novo. United States v. Shurki, 207 F.3d 412, 418 (7th Cir. 2000). Strickland claims are usually discussed in writs of habeas corpus, but we review them on direct appeal when the defendant's claim can be fully evaluated based only on the record below, id. at 418, and not extrinsic evidence. United States v. Goodwin, 202 F.3d 969, 973 (7th Cir. 2000); United States v. Taglia, 922 F.2d 413, 417 (7th Cir. 1991).
1. Deficient Performance Under Strickland
Holman must describe "errors so serious that counsel was not functioning as the 'counsel' guaranteed the de- fendant by the Sixth Amendment" to show that his coun- sel was performing deficiently. Strickland, 466 U.S. at 687. The evaluative standard we hold attorneys to in this re- gard is "simply reasonableness under prevailing profes- sional norms." Id. at 688. When evaluating an attorney's conduct, our review is "highly deferential," with the underlying assumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Whether something is reasonable or not is based on the facts of the particular case, viewed at the time of coun- sel's conduct. Id. at 690.
a) Trial strategy Holman's attorney began his opening statement by acknowledging that "on July 31st, 1999, Freeman Holman readily admits that he had cocaine in his pocket." He then explained:
We're not going to sit here and say, oh, no, he didn't have it, because he did. He had the point six eight or nearly point seven grams of the cocaine, point seven gram [sic] of cocaine crack base in his pocket. We are not going to attempt to deny that in any way, because that is the truth.
During the presentation of evidence, Holman's attorney limited his cross-examination of the prosecution's witnesses to issues raised in Counts II-IV and did not ask any ques- tions regarding Count I. Similarly, when presenting de- fense witnesses (including Holman), he avoided any discussion of the events surrounding Count I and only asked questions relating to Counts II-IV. During closing argu- ment, Holman's attorney not only conceded ...