The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
In 2004, Worlee Glover pleaded guilty to fraud. Glover has now
filed a motion pursuant to 28 U.S.C. § ("section") 2255 to
vacate, set aside or correct his sentence. For the reasons set
forth below, the motion is denied.
On September 29, 2004, Glover pleaded guilty to a one-count
information charging him with mail fraud. Glover admitted that,
while he was employed as a loan officer, he told another person
how to complete a fraudulent mortgage application. (Pet., Ex. B,
Plea Agreement at 3.) At the time, Glover knew that the person
would be ineligible for the mortgage if she used her own identity
and credit information. (Id.) Glover also prepared various
false documents to support the person's alias. (Id.) Glover
then sent the application via Federal Express to a mortgage
lender, which lost approximately $64,000.00 when the borrower
defaulted on the loan. (Id. at 3-4.) On January 21, 2005, this
Court sentenced Glover to four months incarceration, followed by four months of home detention and three years of
supervised release. (Id., Ex. E, 1/21/05 Sentencing Hr'g Tr. at
Glover is entitled to section 2255 relief if his "sentence was
imposed in violation of the Constitution or laws of the United
States, . . . the court was without jurisdiction to impose [it],
. . . the sentence was in excess of the maximum authorized by
law, or [it] is otherwise subject to collateral attack."
28 U.S.C. § 2255. Glover contends that his sentence is
unconstitutional because it was imposed in violation of his Sixth
Amendment right to effective counsel.
Glover's counsel was constitutionally ineffective if (1) his
performance "fell below an objective standard of reasonableness,"
and (2) absent his errors, "there was a reasonable probability
that . . . [Glover] would not have pleaded guilty and would have
insisted on going to trial." Strickland v. Washington,
466 U.S. 668, 688, 694 (1984); Arango-Alvarez v. United States,
134 F.3d 888, 892 (7th Cir. 1998).
Glover's first claim of ineffective assistance is based on his
attorney's erroneous belief that probation was an available
sentence under the Sentencing Guidelines. (See Pet. at 6
(stating that Glover "did not plead guilty voluntarily or
intelligently based on trial counsel's erroneous information that
Petitioner could receive probation when such a sentence was
impossible. . . .").) Glover's characterization of his counsel's
error that he gave incorrect sentencing information not that he
made an incorrect sentencing prediction is deliberate. Under
the law of this circuit, "[a] gross mischaracterization of the
sentencing consequences of a plea," may amount to ineffective
assistance, see United States v. Barnes, 83 F.3d 934, 940 (7th
Cir. 1996), but an inaccurate sentence prediction cannot, see
id. What separates an actionable mischaracterization from a
non-actionable prediction has less to do with the contents of the
lawyer's communication than it does with the quality of his work.
In the words of the Barnes court: "A defendant can prove that
his attorney's performance was deficient if he shows that his
attorney did not make a good-faith effort to discover the facts
relevant to his sentencing, to analyze those facts in terms of
the applicable legal principles and to discuss that analysis with
him." Id.; see United States v. Martinez, 169 F.3d 1049, 1053
(7th Cir. 1999) (holding that counsel had not performed
deficiently, though he incorrectly told his client that he might
be eligible to serve his sentence in a boot camp, because there
was no evidence of bad faith).
Glover has offered no evidence that his counsel's belief that
probation was available was anything but a good-faith mistake. As
a result, he has not satisfied the first element of the
Further, even if counsel's performance were deficient, Glover
would have to show that he was prejudiced by that conduct to be
entitled to relief. As the Seventh Circuit's decision in United
States v. Fuller, 312 F.3d 287 (7th Cir. 2002) demonstrates,
Glover has not made a showing of prejudice.
The petitioner in Fuller argued that his trial counsel had
labored under a conflict of interest when representing petitioner
on his motion to withdraw his guilty plea. Id. at 291-92.
Specifically, petitioner said, counsel placed his own interest in
concealing his negligence above petitioner's interest in
withdrawing his plea. Id. The error counsel allegedly sought to
conceal was his recommendation that petitioner sign the plea
agreement, which incorrectly suggested that probation was an
available sentence. Id. at 288-89. The Seventh Circuit held that there was no conflict of
interest. Id. at 292. Moreover, the court said, even if there
had been a conflict, petitioner would not have been prejudiced:
Even though defense counsel had failed to inform Mr.
Fuller that probation was not a possibility, Mr.
Fuller represented in open court under oath that his
guilty plea had not been induced by promises or
predictions about sentencing. In-court statements at
a change-of-plea hearing carry great weight, and Mr.
Fuller's later claims cannot overcome the presumption
that his representations to the court were truthful.
Id. at 293 (citations omitted).
The same is true in this case. At the sentencing hearing,
Glover acknowledged that he (1) discussed the plea agreement with
his counsel, (2) understood the terms of the agreement, and (3)
was satisfied with his counsel's advice and representation.
(Pet., Ex. C, 9/29/04 Hr'g Tr. at 7-8.) The following exchange
THE COURT: Has anyone made any other or different
promise or assurance of any kind to you in an effort
to induce you to plead guilty in this case that is
not contained in the plea agreement?
THE DEFENDANT: No, they have not.
THE COURT: Do you understand that the terms of this
plea agreement, even though they may be binding as
between you and the government, are merely
recommendations to me and that I can reject those
recommendations without permitting you to withdraw
your plea of guilty and impose a sentence that is
more severe than what you may anticipate. Do you
THE DEFENDANT: Yes, your Honor.
(Id. at 8-9.) Thereafter, the Assistant United States Attorney
told Glover that the maximum penalty for his crime was "5 years
imprisonment, a maximum fine of $250,000, and a term of
supervised release of at least two but not more than three years,
as well as any restitution ordered by the Court." (Id. at
9-10.) After receiving that information, the Court asked Glover:
"Are you satisfied, sir, . . . that you understand all the possible
consequences of pleading guilty to this charge?" To which Glover
answered: "Yes, your Honor." (Id. at 10.)
As in Fuller, Glover's sworn statements at the sentencing
hearing that he had not been promised anything to plead guilty,
that he understood his crime carried a maximum penalty of five
years imprisonment and that the Court was not bound by the plea
agreement vitiates any inference of prejudice. Glover is not,
therefore, entitled to any relief on his first ineffective
Glover's second claim for ineffective assistance is based on
his lawyer's failure to file a motion for downward departure
based on extraordinary family circumstances. (Pet. at 11.)
Assuming, arguendo, that trial counsel should have filed a
motion for downward departure, Glover cannot establish that he
was prejudiced by that error. According to the Guidelines,
"[f]amily ties and responsibilities are not ordinarily relevant
in determining whether a departure may be warranted." U.S.
SENTENCING GUIDELINES MANUAL § 5H1.6 (2003).*fn1 A court
may, however, "depart from an applicable guidelines range once it
finds that a defendant's ...