Isaiah Hicks v. United States
Opinion
*649
A jury found Isaiah Hicks guilty of multiple drug offenses. He was sentenced to 360 months in prison. After we upheld his convictions and sentence on direct appeal, he filed a pro se motion under
I. Factual and Procedural Background
Hicks led an organization that processed, packaged, and sold drugs on Chicago's south side.
United States v. Long
,
The district judge observed at sentencing that "the proper ... offense level in this case probably is 45, but, of course the table stops at 43 and I thought it was immaterial to decide" the exact offense level. The judge noted that the "basic question" was whether to impose life imprisonment. The judge said that the recommended life sentence for Hicks would be fair given the large quantity of drugs at issue and Hicks's leadership role in the drug-distribution organization. But the judge decided to impose a below-guideline sentence of 360 months because he thought that Hicks was capable of reform.
After his unsuccessful direct appeal, Hicks moved under
In response, the government argued that Hicks had failed to show that his attorney's actions prejudiced him because the § 2255 motion was not supported by evidence showing that the prosecutor had offered Hicks a plea agreement. The district judge agreed with the government and denied Hicks's motion without an evidentiary hearing. The judge reasoned that a guilty plea offered without any agreement would have had "no value" to Hicks. The scenario Hicks proposed-that his sentence would have been shorter if he had received an offense-level reduction for acceptance of responsibility-"would not *650 have reduced the guideline range [below] 360 months to life."
We granted Hicks a certificate of appealability under
II. Analysis
On appeal, Hicks argues that he was entitled to an evidentiary hearing on whether his lawyer was ineffective. A hearing is required unless the record conclusively shows that the movant is not entitled to relief.
To demonstrate ineffective assistance of counsel, Hicks must show that his attorney's performance was objectively deficient and that the deficient representation caused him prejudice.
Strickland v. Washington
,
The test for prejudice is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland
,
Hicks argues that there is a reasonable probability that a "blind" guilty plea (without a plea agreement) would have led to a sentence lower than 360 months. Assuming that his base offense level was 45, he asserts that the three-point reduction he would have received under U.S.S.G. § 3E1.1 in exchange for a blind guilty plea would have left him with an offense level of 42 and a guideline range of 360 months' to life imprisonment. This demonstrates sufficient prejudice, Hicks argues, because there was "a reasonable probability" he would have been sentenced to even less prison time. See generally
Missouri v. Frye
,
We conclude that Hicks's argument is too speculative. Working from (1) the mistaken premise of an offense level of 45, Hicks assumes that by entering a blind plea, (2) he would have met the requirements for the two-point acceptance-of-responsibility adjustment, and (3) he would have made the plea in time and in a fashion that would have secured the government's agreement to the third point, and *651 (4) that the judge then would have sentenced him below that lower guideline range. This path to potential relief involves too much conjecture.
First, Hicks cannot show that 45 was the correct offense level. As the government points out, according to the probation officer, Hicks's base offense level was 46, not 45. With a base offense level of 46, even a full three-point reduction would have given Hicks a new offense level of 43. His guideline sentence recommendation would have remained life imprisonment. U.S.S.G. Ch. 5, pt. A. This forecloses any showing of prejudice. Hicks's entire argument relies on the judge's statement that his offense level was "probably" 45. But that was evidently a slip of the tongue. The judge never indicated that he was disagreeing with the presentence investigation report's calculation of 46, let alone explained why he might have disagreed. At most, the question of Hicks's base offense level was left unanswered because it was irrelevant based on Hicks's criminal history category of IV and the facts of his case.
Second, even taking Hicks's argument at face value, there is no evidence that he would have met the requirements for the two-point reduction. Though the two questions are connected, the reduction is for accepting responsibility, not simply pleading guilty. And as the presentence investigation report states, there is no information "indicating that [Hicks] affirmatively accepted responsibility for his conduct." Even now, Hicks does not declare that he accepts responsibility, so there is no reason to believe that he in fact does and would have said so before his trial.
Third, there is even less reason to think that if Hicks had entered a timely blind guilty plea, the government would have moved under U.S.S.G. § 3E1.1(b) for the third point. Without a government motion, the point could not be awarded. See
United States v. Nurek
,
Fourth and finally, Hicks argues that any change in his recommended guideline range likely would have changed his sentence because it would have pushed the district court to impose a shorter sentence. See
Molina-Martinez
,
*652
Given the facts the district judge found important at sentencing, there is barely a theoretical possibility, let alone a "reasonable" probability, that the judge would have imposed a sentence shorter than 360 months. The "basic question" for the judge was "whether [he would] impose life imprisonment," and he "would've imposed life imprisonment if [he] had thought that Hicks ... would not change or had no chance at changing." The judge varied downward from life to 360 months only because he believed Hicks capable of reform. There is no reason to believe that the judge would have varied even further downward if the low end of the guideline range had been 360 months; all indications are that 30 years was the sentence he thought was appropriate under
Whether Hicks's offense level was 45 or 46, his claim of prejudice is insufficient to entitle him to an evidentiary hearing. See
George v. Smith
,
AFFIRMED.
Reference
- Full Case Name
- Isaiah HICKS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
- Cited By
- 17 cases
- Status
- Published