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1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - -X

3 PAUL L. GLOVER, :

4 Petitioner :

5 v. : No. 99-8576

6 UNITED STATES :

7 - - - - - - - - - - - - - - - -X

8 Washington, D.C.

9 Monday, November 27, 2000

10 The above-entitled matter came on for oral

11 argument before the Supreme Court of the United States at

12 11:05 a.m.

13 APPEARANCES:

14 MICHAEL L. WALDMAN, ESQ., Washington, D.C.; on behalf of

15 the Petitioner.

16 MICHAEL R. DREEBEN, ESQ., Deputy Solicitor General,

17 Department of Justice, Washington, D.C.; on behalf of

18 the Respondent.

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1 C O N T E N T S

2 ORAL ARGUMENT OF PAGE

3 MICHAEL L. WALDMAN, ESQ.

4 On behalf of the Petitioner 3

5 ORAL ARGUMENT OF

6 MICHAEL R. DREEBEN, ESQ.

7 On behalf of the Respondent 13

8 REBUTTAL ARGUMENT OF

9 MICHAEL L. WALDMAN, ESQ.

10 On behalf of the Petitioner 29

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1 P R O C E E D I N G S

2 (11:05 a.m.)

3 CHIEF JUSTICE REHNQUIST: We'll hear argument

4 next in Number 99-8576, Paul Glover v. United States.

5 Mr. Waldman. Mr. Waldman, after reading the

6 briefs it seems to me that the Government has pretty well

7 conceded the question presented here, and is asking for

8 affirmance on alternate grounds. Now, we don't decide

9 cases on the basis of concessions, but you might be well

10 advised to save a good deal of time for rebuttal.

11 MR. WALDMAN: Thank you, Your Honor.

12 ORAL ARGUMENT OF MICHAEL L. WALDMAN

13 ON BEHALF OF THE PETITIONER

14 MR. WALDMAN: Mr. Chief Justice, and may it

15 please the Court:

16 In this case, the district court and then the

17 court of appeals concluded that an additional 6 to 21

18 months in prison caused by counsel's deficient performance

19 was not sufficiently significant to satisfy the prejudice

20 prong of the ineffective assistance of counsel standard.

21 We believe the lower court's attempt to transform this

22 Court's prejudice analysis under Strickland into a

23 requirement that defendant show a significant increase in

24 their term of imprisonment is misplaced. This Court

25 should reject a significant prejudice test as inconsistent

3

1 with Strickland and this Court's prior treatment of the

2 prejudice test, as inconsistent with this Court's prior

3 holding in Argesinger v. Hamlin that the right to counsel

4 applies where any term of imprisonment is imposed, and

5 because a significant prejudice test is unworkable and

6 unfair.

7 Also in this case, as Mr. Chief Justice has

8 noted, the Government agrees with Glover on the basic

9 issue that the Seventh Circuit's significant prejudice

10 test is incorrect. The Government, however, raises a host

11 of alternative grounds for affirmance in its brief on the

12 merits. Because these new Government arguments were not

13 raised by the Government in the court of appeals, not

14 addressed by any lower court, not encompassed within the

15 question presented in the petition for certiorari, and not

16 persuasive even when examined on their own merits, this

17 Court should not reach these new arguments, but should

18 leave them to the lower courts to be addressed on remand.

19 QUESTION: Would it also be open to the lower

20 court on remand to reassess its initial position on

21 Glover's leadership role if it knew what it knows now

22 about the -- that the Seventh Circuit's test is

23 incorrect? Could the sentencing court then say, but we

24 didn't give extra points for leadership last time around,

25 now we want to reassess that and give him the extra

4

1 points?

2 MR. WALDMAN: Your Honor, I think the issues as

3 to what arguments have been waived, what arguments -- by

4 the Government or by Mr. Glover, whether to do a

5 recalculation is something that would have to be sorted

6 out by the Seventh Circuit, and I think that is one of the

7 very reasons why remand to the lower court is appropriate

8 in this case.

9 In Strickland v. Washington, this Court

10 established the prejudice prong for demonstrating

11 ineffective assistance of counsel. It stated that a

12 defendant must show that but for counsel's unprofessional

13 errors the results of the proceeding would have been

14 different. In numerous decisions since Strickland, this

15 Court has quoted and adhered to this difference in result

16 language from Strickland.

17 The court of appeals erroneously derived the

18 significant prejudice test by misreading this Court's

19 decision in Lockhart v. Fretwell. The circuit court

20 misinterpreted Lockhart v. Fretwell as modifying the

21 normal Strickland test by purportedly adding a new, more

22 rigorous prejudice requirement. Last term, in Williams v.

23 Taylor, this Court rejected the proposition that Lockhart

24 has announced a new higher standard for showing prejudice.

25 This Court in Williams reiterated that Strickland's

5

1 difference-in-result test remained the standard to be

2 applied in virtually all cases. Williams emphasized that,

3 in its own words, a mere difference in outcome was

4 sufficient to satisfy the prejudice prong. Here, Mr.

5 Glover's counsel's ineffective performance led Mr. Glover

6 to receive an additional 6 to 21 months in prison, clearly

7 a difference in outcome.

8 We also believe that this Court should be guided

9 by its decision in Argesinger v. Hamlin. There, the Court

10 held that any term of imprisonment, no matter how short,

11 implicates the constitutional right to counsel.

12 Consistent with Argesinger and its progeny, this Court

13 should not tolerate 6 to 21 months of undeserved

14 imprisonment caused by the ineffective performance of

15 counsel.

16 Furthermore, as the Government itself notes in

17 its brief, a significant prejudice test is unworkable.

18 One sees this problem in the decision of the district

19 court below, where the district court struggled to figure

20 out whether 6 to 21 months in prison was sufficiently

21 significant. Although the court of appeals has employed

22 the significant prejudice test for a number of years, it

23 remains unclear whether the significant increase in

24 sentence refers to some percentage change, some absolute

25 number of months, or some other factor.

6

1 For example, if significance is measured in

2 offense levels, as some courts have stated, the two

3 offense levels such as occurred in Mr. Glover's case, a

4 two-offense-level change can be as much as 8 or 9

5 additional years in prison in some cases, depending on the

6 crime and the characteristics of the offense.

7 QUESTION: Mr. Waldman, is your client still

8 incarcerated? Does this case affect his actual

9 incarceration?

10 MR. WALDMAN: Yes, Your Honor. He has served

11 approximately 5 years of his term, but he has another 13

12 months remaining, so a favorable result on a section 2255

13 motion would allow him to be released.

14 We don't believe that one can seriously argue

15 that 8 or 9 additional years imprisonment which are

16 undeserved, and caused only by counsel's errors, can ever

17 be considered insignificant. Moreover, we would make the

18 more basic point, the point which we believe lies at the

19 core of Argesinger, of Strickland, and the right to

20 counsel cases, which is that any term of imprisonment

21 which is undeserved and resulted from a lack of effective

22 counsel cannot be permitted to stand.

23 Turning to the new arguments in the Government's

24 brief on the merits, although now agreeing with Mr. Glover

25 that the lower courts erred in applying a significant

7

1 prejudice test, the Government goes on on its brief on the

2 merits to raise a variety of new grounds for affirmance.

3 The Government argues that Mr. Glover's counsel did not

4 perform deficiently at all. The Government now argues

5 that the Wilson case requiring grouping offenses such as

6 Mr. Glover's, that that case was wrongly decided by the

7 court of appeals and should be overruled by this Court.

8 Finally, the Government now argues that

9 correctly recalculated under Wilson, in its view, Mr.

10 Glover's sentence would actually be increased. However,

11 these alternative grounds were not properly raised

12 previously in this case, and should not be addressed by

13 this Court in the first instance. First, these various

14 Government arguments were never presented to the court of

15 appeals. The Government argued only one issue in the

16 court below, that 6 to 21 additional months in prison did

17 not satisfy the significant prejudice test established by

18 the Seventh Circuit, and we attach, in our -- as Appendix

19 A to our reply brief, the Government's brief to the court

20 of appeals.

21 QUESTION: Well, the Government -- you, of

22 course, were appealing against the decision of the

23 district court, were you not?

24 MR. WALDMAN: That's correct, Your Honor.

25 QUESTION: And so how much is the Government

8

1 expected -- as an appellee, how many of these things do

2 you expect it to raise, when you're appealing?

3 MR. WALDMAN: Well, Your Honor, they obviously

4 had the right to raise whatever arguments they wanted to

5 affirm the district court below, alternative grounds for

6 affirmance at that court. Our position is not that they

7 were -- it was -- they were required to raise these

8 arguments, but in failing to raise them to the court of

9 appeals and now raise them to this Court, that it's not

10 appropriate for this Court under its rules of procedures

11 to address them in the first instance.

12 QUESTION: That's all you're saying. You're not

13 saying that they were waived. You're saying that's a

14 decision for the Seventh Circuit to make on remand.

15 MR. WALDMAN: That's correct, Your Honor.

16 Second, neither the district court nor the court

17 of appeals ever addressed any of these various new

18 Government arguments. The lower courts relied on only one

19 ground, that petitioner could not satisfy the significant

20 prejudice test of the Seventh Circuit.

21 Third, these Government arguments are very

22 different from the issue that we presented for review by

23 this Court in our petition. The question presented by

24 petitioner focused exclusively on the validity of the

25 significant prejudice test which was relied on in the

9

1 decisions below to dismiss Mr. Glover's petition.

2 In these circumstances, this Court should not

3 reach out to address the alternative grounds for

4 affirmance now raised in the Government's brief on the

5 merits. This rule's -- this Court's rules of procedure,

6 as well as the numerous cases that we cite at pages 7 and

7 8 of our reply brief, make clear that the practice of this

8 Court is not to address issues which appear for the first

9 time in the merits brief to this Court.

10 There are no extraordinary circumstances here

11 which demand that this Court diverge from its usual

12 practice. The Government's arguments do not raise

13 pressing issues of constitutional significance, or issues

14 of great national import. Rather, the Government's new

15 arguments involve complicated and detailed applications of

16 the sentencing guidelines and lower court procedures and

17 decisions. These are precisely the types of issues which

18 this Court should not be addressing.

19 As this Court noted in Braxton v. United States,

20 this Court should be, in its own words, restrained and

21 circumspect in resolving sentencing guidelines

22 interpretation issues, since Congress expressly provided

23 the Sentencing Commission with the power to resolve issues

24 involving conflicts in interpretation of the sentencing

25 guidelines.

10

1 Here in particular, the Sentencing Commission

2 has announced that as one of its priorities this year it

3 will be examining the guidelines interpretation of section

4 3(d)1.2, which is the very section which the Government is

5 asking the Court to review.

6 This Court will also occasionally resolve issues

7 which were not raised below, where there is an obvious

8 plain error which this Court can quickly and easily

9 dispose of. That also is not the case here. As we

10 demonstrate at pages 12 through 20 of our reply brief, not

11 only are these issues not easily resolved, but the

12 Government's new arguments at the end of the day are

13 simply without merit.

14 The Government argues that there was no

15 deficient performance by Glover's counsel, yet Glover's

16 counsel on appeal never raised the issue of grouping the

17 kickback and money laundering offenses. The probation

18 officer's report had recommended grouping, and at least

19 three circuits had ruled in favor of such grouping.

20 This was a pure legal issue. It was a strong

21 viable claim that his appellate counsel should have

22 raised, and which, as the Wilson case shows us, would have

23 prevailed. This grouping issue was far superior to the

24 two claims which were raised by Mr. Glover's counsel on

25 appeal. These two claims involve challenges on

11

1 evidentiary and fact-findings by the district judge where

2 the standard of review required Glover's counsel to make

3 his case by clear error.

4 Ultimately the court of appeals found that these

5 two claims raised by Glover's counsel were wholly

6 unfounded, in its words, involved no error whatsoever, let

7 alone clear error, and also again in the opinion it says

8 it was not a -- these are not a close call. Comparing the

9 grouping claim with those claims which he did assert, we

10 submit that Glover's appellate counsel clearly acted

11 outside the scope of a reasonably competent attorney in

12 not raising this grouping issue on appeal.

13 We also believe that it was clearly deficient

14 performance to not bring the Wilson case, a -- the Seventh

15 Circuit's new case which controlled this issue and was

16 directly on point, to not bring it to the attention of the

17 panel in Mr. Glover's case, even though that case was

18 still pending when Wilson was decided.

19 As to the Government's other elaborate

20 challenges to the sentencing guidelines calculation, we

21 believe that the Seventh Circuit's decisions in Wilson I

22 and Wilson II are controlling and correct. The Government

23 has offered no compelling justification for this Court to

24 review these decisions, or to overrule their sound

25 reasoning.

12

1 QUESTION: Was Glover's counsel on the first

2 appeal, was it retained counsel or furnished by the

3 Government?

4 MR. WALDMAN: Retained counsel, Your Honor.

5 In summary, the Government's various new

6 arguments are inappropriate for this Court to address in

7 the first instance. They involve complicated fact-

8 specific and detailed issues which are best sorted out by

9 the lower courts. The issue which this Court accepted for

10 review was whether 6 to 21 additional months in prison due

11 to counsel's ineffective performance constitute prejudice

12 under the Strickland test. This Court's precedent and

13 elemental fairness requires that this Court reject the

14 significant prejudice test applied by the Court below.

15 If the Court has no further questions, I'll

16 reserve the remainder of my time.

17 QUESTION: Very well, Mr. Waldman.

18 ORAL ARGUMENT OF MICHAEL R. DREEBEN

19 ON BEHALF OF THE RESPONDENT

20 MR. DREEBEN: Mr. Chief Justice, and may it

21 please the Court:

22 We agree with petitioner that the Seventh

23 Circuit erred in adopting a significant difference test

24 for measuring the prejudice inquiry under Strickland v.

25 Washington. We believe, however, that the judgment in

13

1 this case is correct, because petitioner's counsel at

2 trial and direct appeal neither rendered deficient

3 performance nor gave rise to prejudice.

4 QUESTION: Mr. Dreeben, why didn't the

5 Government tell us this in the response to the petition

6 for certiorari?

7 MR. DREEBEN: Justice O'Connor, at the stage

8 when we responded to the petition, we told the Court that

9 we thought the judgment was correct. We did not defend

10 the rationale of the Seventh Circuit and, in fact,

11 indicated that the Seventh Circuit might wish to

12 reconsider it in light of this Court's intervening

13 decision in Williams v. Taylor and a Fifth Circuit

14 decision that had criticized it, but we had not formally

15 concluded our analysis of whether at the end of the day we

16 would or would not defend the approach that the Seventh

17 Circuit adopted at the time we filed our response to the

18 certiorari position.

19 After we told the Court not to grant the case,

20 and the Court disagreed and granted it, we then undertook

21 a complete analytical review of the Seventh Circuit's

22 approach and concluded that we could not submit that this

23 Court could affirm that approach consistent with its own

24 cases and principles governing the ineffective assistance

25 analysis, but we continued to believe that the judgment in

14

1 this case as rendered by the Seventh Circuit was correct

2 on alternative bases.

3 QUESTION: But those grounds would be hard for

4 us, really, to address here for the first time, at least

5 on the grouping question. There's a five to five split

6 below, and the Sentencing Commission is considering a

7 change, particularly hard for us to deal with.

8 MR. DREEBEN: I agree, Justice O'Connor, that

9 the sentencing guidelines question and the intricacies

10 related to whether money laundering should be grouped with

11 the underlying offense are both complicated and the kind

12 of issue that this Court would ordinarily properly leave

13 to the Sentencing Commission to resolve, particularly

14 since the Sentencing Commission is aware of it.

15 We presented that analysis on the prejudice

16 prong of the case in order to illustrate how very

17 complicated the guidelines decisions that counsel faces

18 are when deciding whether to raise a particular claim or

19 not to raise a particular claim. These are intricate

20 matters that are quite complex in Federal criminal law,

21 and more complex than most decisions that counsel has to

22 make, and it is therefore highly relevant to what this

23 Court says, if anything, about the proper analysis and

24 performance when counsel is charged with having failed to

25 raise a sentencing guidelines claim that the client later

15

1 believes that he should have raised.

2 The Seventh Circuit --

3 QUESTION: That would come up, Mr. Dreeben, only

4 if we dealt on the merits with your effort to affirm on an

5 alternate ground.

6 MR. DREEBEN: That's correct, Mr. Chief Justice.

7 The fundamental point that the Seventh Circuit was trying

8 to make in adopting its significant difference test was

9 that there are a multitude of guidelines questions that

10 confront counsel who is handling a sentence or a

11 sentencing guidelines question on appeal, and that if it

12 were the case that any guidelines error could support

13 collateral relief, the defendant would often get the

14 chance for two full bites at the apple at sentencing

15 questions, first at trial and on direct appeal, and second

16 on collateral review, and --

17 QUESTION: That may be, but it's hard to say

18 that's what the Seventh Circuit was talking about. They

19 say Glover, to win on ineffective assistance he'd have to

20 show his counsel performed below a constitutional

21 threshold and that the deficient performance prejudiced

22 him. Even if we were to assume that Glover's attorneys

23 performed inadequately, the second prong, prejudice, is

24 missing here, and then they go on to discuss that, so it

25 seems to me they didn't say one single word about was,

16

1 what was or what was not inadequate performance.

2 MR. DREEBEN: I quite agree, Justice Breyer, and

3 my point is that the considerations that drove the Seventh

4 Circuit to adopt its rule on prejudice are actually far

5 more pertinent to analyzing the performance prong.

6 Sentencing guidelines claims, as the Court

7 knows, are not only complex but can have unpredictable

8 outcomes, and can --

9 QUESTION: But Mr. Dreeben, may I just stop you

10 there to confirm that you recognize the Second Circuit did

11 not pass on the adequacy of the performance. It said, we

12 will assume, for purposes of this decision, that the

13 performance was inadequate. Even so, there was no

14 prejudice.

15 So we don't even have an answer in the first

16 instance on the deficiency of the performance from the

17 Seventh Circuit. Why should we handle such a question as

18 a matter of first view?

19 MR. DREEBEN: I think, Justice Ginsburg, the

20 reason why it is relevant for the Court to say something

21 about the performance issue, which was not addressed

22 squarely by the Seventh Circuit -- we did argue it in the

23 district court and the district court didn't address it

24 either, so it has not been resolved by the courts below,

25 but it is highly interrelated with the prejudice inquiry

17

1 in a sentencing guidelines ineffective assistance

2 collateral attack, and the point that the Seventh Circuit

3 was trying to make was to give courts a way to weed out

4 these collateral attacks in an efficient way.

5 QUESTION: Well, why not let the Seventh Circuit

6 make it, because looking at its current decision, all it

7 said is, we're going to assume for purposes of this

8 decision that counsel's performance was inadequate.

9 MR. DREEBEN: I agree that the Seventh Circuit

10 hasn't resolved it, but this Court is going to announce a

11 decision that will be influential in the way that the

12 lower courts address comparable sentencing guidelines

13 ineffective assistance of counsel cases, and I think that

14 it would be useful for the lower courts to have some

15 guidance from this Court as to some of the relevant

16 considerations and factors that ought to be brought to

17 bear on the performance inquiry.

18 QUESTION: There's really nothing novel about

19 the points you make concerning adequacy of counsel's

20 performance. You say, you know, these are complex issues,

21 you can't raise too many either at the trial level or

22 especially on appeal, you have to pick your good targets,

23 this wasn't a good target -- I mean, it's all standard

24 analysis, it seems to me.

25 I could understand it if you were presenting to

18

1 this Court some novel new theory of counsel inadequacy

2 that we have to signal to the lower courts, but there's

3 really nothing bizarre about the arguments you're making.

4 They're standard adequacy-of-counsel arguments, aren't

5 they, and can't we leave them to the Second -- Seventh

6 Circuit to figure out?

7 MR. DREEBEN: Well, I hope they're not bizarre,

8 but I do think that the arguments that we've made have

9 gone a little bit beyond what you, Justice Scalia, have

10 just accurately described as where this Court has thus far

11 gone in analyzing the performance inquiry.

12 Clearly, counsel has to be selective in raising

13 the issues that it chooses to present to an appellate

14 court especially, and clearly, as this Court stated in

15 Smith v. Robbins last term, just because a claim might

16 look good in hindsight doesn't mean that it's the kind of

17 claim that counsel should be deemed obligated to have

18 raised.

19 But there is a unique feature to the sentencing

20 guidelines claims, as well as a generally relevant point

21 to appellate advocacy that I think the Court could do well

22 to clarify. In these sentencing guidelines claims, there

23 can often be ambiguity about whether a particular claim

24 will indeed help the defendant when it is raised on appeal

25 and prevails and, if so, by how much.

19

1 In this case, most starkly, our view is that if

2 petitioner got the grouping that he asked for, his offense

3 level should actually go up, not down, because the

4 grouping would have required that all of the financial

5 harm that he inflicted on the various victims be

6 aggregated into one group, so a counsel who was looking at

7 a sentencing guidelines claim, unlike claims that would

8 simply result in a reversal of a conviction, has to be

9 cognizant that there can be unintended adverse effects.

10 In addition, and this was the insight that I

11 think the Seventh Circuit was most concerned with,

12 sentencing guidelines claims can produce sometimes only

13 very modest benefits, and the length of the benefit that

14 would be produced is a relevant factor in considering

15 whether reasonable counsel would elect to raise a

16 relatively long-shot claim, or a claim that's not

17 established.

18 QUESTION: Well, Mr. Dreeben, I take it we have

19 three choices here. We could say something on this issue

20 that helps the Government. We could say nothing. We

21 could say something that hurts the Government. You would

22 rather us have us say nothing than say something that

23 hurts the Government, I take it.

24 MR. DREEBEN: Correct, Mr. Chief Justice.

25 (Laughter.)

20

1 MR. DREEBEN: I'm here seeking to affirm the

2 judgment, and if I can't affirm the judgment, at least get

3 some guidance that would be useful to the lower courts

4 that have been grappling with this problem.

5 Now, petitioner has, of course, pointed out that

6 it is unusual for the Court to go beyond the scope of the

7 question presented and address grounds that were not

8 decided below and the Government, of course, fully agrees

9 with that. We recognize that it's unusual. It's

10 certainly not unprecedented for the Court to decide a case

11 on grounds that weren't decided by the lower court or that

12 were not fully addressed.

13 QUESTION: If I understand you correctly, you're

14 asking us either to affirm on grounds not relied on below

15 or, alternatively, to write an advisory opinion on the

16 general subject matter.

17 (Laughter.)

18 MR. DREEBEN: I would call it giving guidance,

19 Mr. Justice Stevens.

20 (Laughter.)

21 MR. DREEBEN: The Court similarly believed that

22 it was appropriate to give guidance to the lower courts by

23 showing how the rule of law applies to the particular

24 facts in Brook Group v. Brown & Williamson, a 1993

25 decision where the Court took a novel antitrust principle

21

1 and then applied it to the very intricate and specific

2 facts of that case.

3 In Siegert v. Gilley, a 1991 decision, the Court

4 actually affirmed the judgment on a ground that the lower

5 court had not reached at all. There, the lower court had

6 said there was a heightened pleading requirement for

7 qualified immunity. This Court decided the case on the

8 grounds that there was no underlying constitutional right

9 that was asserted in the Bivens action at all, and in that

10 case not only was that not the question presented, but the

11 parties hadn't even briefed it or addressed it. So --

12 QUESTION: There's -- on occasion -- I -- it

13 seems to me that case -- opinion perhaps represents a

14 decision that a particular claim is logically antecedent

15 to another one, and it seems to me you have a hard time

16 saying that here.

17 MR. DREEBEN: I do have a hard time saying it's

18 logically antecedent, but the third case that I would

19 refer the Court to involves the elaboration of the

20 additional implications of a claim that the court decided.

21 That is Colstad v. American Dental Association, which was

22 decided in 1999, and there the Court elaborated a standard

23 for punitive damages in Title VII actions and then went on

24 to give guidance to the lower courts about how agency

25 principles apply, but then remanded --

22

1 QUESTION: And some members of the Court were

2 rather critical of that particular development, I would

3 say.

4 (Laughter.)

5 MR. DREEBEN: I am relying on the majority's

6 disposition in the case.

7 QUESTION: Your brief was very effective on the

8 points you're raising.

9 MR. DREEBEN: The Seventh Circuit obviously

10 could resolve these issues, and if this Court chooses to

11 give the guidance that we think is appropriate, it will

12 help the overall administration of the judicial system,

13 because we believe, on the one hand, that when a defendant

14 has not had adequate assistance of counsel,

15 constitutionally effective assistance of counsel in

16 litigating the sentencing guidelines claims, and he can

17 show a reasonable probability of a different outcome, then

18 he has satisfied the elements of a constitutional claim.

19 QUESTION: Okay, so what you want us to say is,

20 we assume for argument's sake that the present defendant's

21 present interpretation of how this all works, the multiple

22 count thing is correct. We'd have to say that, otherwise

23 we'd have to get into who's right and who's wrong about

24 multiple counts, wouldn't we?

25 MR. DREEBEN: I think --

23

1 QUESTION: We'd have to say, we assume they're

2 right, I think.

3 MR. DREEBEN: I think that the Court could --

4 QUESTION: Or do you want us to get into

5 multiple counts, which is -- I know multiple counts. It's

6 like Hagel on his death bed. He said, only one person has

7 ever understood me, and even he didn't understand me.

8 (Laughter.)

9 MR. DREEBEN: That's perhaps why the Sentencing

10 Commission is going to clarify this.

11 I think it's also perhaps why counsel should not

12 be quickly branded ineffective.

13 QUESTION: All right, so you want us to say, we

14 assume for argument's sake that they're right on the

15 merits of multiple counts, a thing you don't really

16 believe, but you want us to say that they're right, for

17 assumption.

18 MR. DREEBEN: No. I actually would like the

19 Court to say that the Seventh Circuit applied the

20 incorrect test for prejudice, but a properly analyzed

21 performance and prejudice inquiry would produce the

22 conclusion that petitioner's counsel is wrong. That would

23 be my first choice.

24 My second choice is for the Court to do no harm

25 to the arguments that I'm making about ineffective

24

1 assistance, and that those are really the only two choices

2 that I'd like to submit to the Court at present.

3 (Laughter.)

4 QUESTION: Is there any difference in the legal

5 standard applied to a performance by retained counsel as

6 opposed to appointed counsel for ineffective assistance of

7 counsel purposes?

8 MR. DREEBEN: No, Mr. Chief Justice. There is a

9 constitutional floor that applies regardless of whether

10 counsel is retained or appointed. The only place where

11 there's a different standard is where counsel is waived

12 altogether and the defendant represents himself. He can

13 then not charge himself with ineffective assistance of

14 counsel.

15 There is one legal point that has not been

16 clarified in this Court's cases regarding appellate

17 assistance by counsel that could also be usefully

18 clarified, and that is that we think the proper inquiry

19 would look to the state of the law facing appellate

20 counsel, rather than having an evidentiary hearing that

21 would analyze in great depth how much legal research the

22 particular counsel did in anticipation of filing his

23 appellate brief.

24 The inquiries here are essentially whether the

25 defendant's lawyer did not present a claim that was

25

1 sufficiently strong that it was ineffective for him not to

2 present it. We think that that is an objective inquiry

3 that should be measured by the state of the law that was

4 confronting the appellate counsel at the time, and should

5 be resolved based on the legal precedents that are in

6 existence.

7 QUESTION: But isn't the suggestion here that

8 sometime between the oral argument in the Seventh Circuit

9 and the Seventh Circuit's decision this intervening

10 decision in Wilson came down, so that any competent

11 counsel would have said to the Seventh Circuit, may I file

12 a supplement including this decision, which bears very

13 much on a case that is sub judica before you.

14 MR. DREEBEN: Well, I think the answer is no,

15 for several reasons, Justice Ginsburg. First of all

16 there's no authority that I know of that says that

17 competent counsel is required to continue to survey the

18 developing law on issues that he decided not to raise to

19 appeal to an appellate court to determine whether there

20 has been some change of law on an issue that he abandoned.

21 I don't think that competent counsel is required to stay

22 abreast of the law in that fashion.

23 Second, as we have pointed out, competent

24 counsel may well conclude that, rather than risking the

25 ire of the court of appeals by raising a claim that he had

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1 previously abandoned and is now exploiting only because

2 some other defendant had successfully raised it might cost

3 him credibility with the court of appeals and is therefore

4 not appropriately done.

5 There was no authority in the Seventh Circuit at

6 the time, as there is today, that says that counsel has a

7 right to present new issues that are based on intervening

8 law.

9 QUESTION: Do we know what the Seventh Circuit

10 practice is? Does it generally receive such supplemental

11 briefs based on intervening changes in the law?

12 MR. DREEBEN: I have spoken to the U.S.

13 Attorney's Office about that question and I have not

14 received a clear answer, because it doesn't come up all

15 that often, but I will say that the Seventh Circuit is a

16 procedurally strict circuit and it does make every effort

17 to ensure that parties get review only on those issues

18 that they've elected to raise in their opening brief.

19 Now, there is one piece of stray dictum in a

20 Seventh Circuit case that suggests that, of course, if the

21 law changes, maybe parties can raise new issues. Other

22 circuits are divided on that issue, so it's hardly

23 something that I think competent counsel should be

24 presumed required to do in order to meet the minimal

25 constitutional standard of adequacy.

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1 And the final reason why in this case I don't

2 think competent counsel was deficient even if he knew

3 about Wilson and didn't raise it to the court of appeals

4 is because Wilson, under its grouping analysis, produces

5 this strange anomaly of requiring more financial harm to

6 be included in each of the offenses that is grouped, and

7 for reasons that as Justice Breyer has pointed out, very

8 few people understand but we've attempted to lay out in

9 our brief, the offense level would actually go up, and it

10 would have a counterintuitive result.

11 This actually happened in the Wilson case. The

12 judge on remand from Wilson I, the case that petitioner

13 says should have been cited to the panel, resentenced the

14 defendant to a higher sentence, faithfully applying the

15 guidelines as he understood them. The court of appeals

16 then reversed, saying, well, the Government had waived its

17 right to argue the increased offense level in that manner.

18 We don't agree with the Seventh Circuit's waiver

19 analysis, but the more salient point here is that no

20 counsel could have foreseen that the Seventh Circuit would

21 later apply a waiver analysis, and thus, if counsel had

22 actually read the Seventh Circuit's decision and said

23 grouping is required under subsection (d) of the

24 sentencing guidelines, section 3(d)1.2, and had asked for

25 that, the sentence could go up, and that lawyer would not

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1 be assured that there would be any purpose served by

2 raising that kind of an argument only to his client's

3 ultimate detriment.

4 So taking into account the complexities of the

5 guidelines, the potential for adverse results that can

6 occur, and the state of the law which hardly suggested

7 that this was, as Judge Easterbrook has called in another

8 context, a dead-bang winner on appeal, we don't think that

9 there was any deficient performance by petitioner's

10 counsel that would merit ineffective assistance relief on

11 collateral review.

12 If the Court has no further questions --

13 QUESTION: Thank you, Mr. Dreeben.

14 Mr. Waldman, you have 16 minutes left.

15 REBUTTAL ARGUMENT OF MICHAEL L. WALDMAN

16 ON BEHALF OF THE PETITIONER

17 MR. WALDMAN: Thank you, Your Honor. I will be

18 brief.

19 The Government has said that it wants this Court

20 to issue guidance. I wrote down, an advisory opinion

21 would be useful to clarify some points. This Court has

22 procedures as to when it will take cases in the first

23 instance. It says that it will only do so in

24 extraordinary, rare circumstances.

25 This Court -- there are reasons for those

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1 procedures of this Court, and the cases that we cite at

2 page 7 and 8 of our reply brief. This Court benefits from

3 the thinking of the lower court. It benefits from the

4 refinement and sharpening of issues by the lower courts.

5 None of that occurred here, and the Government has not

6 identified any issue that is so pressing, that is so --

7 such an issue of concern for the lower courts that

8 guidance by this Court is essential. It hasn't reached

9 that extraordinary circumstance requirement which this

10 Court has set for dealing with issues at the first

11 instance.

12 There is nothing at core -- as Justice Scalia

13 said, this is standard analysis. There is nothing unusual

14 about these arguments being made by the Government here

15 concerning the sentencing guidelines. They are

16 complicated arguments. They are detailed arguments. They

17 are arguments which are best sorted out by the lower

18 courts here.

19 As to whether the Seventh Circuit would accept

20 the Wilson case if offered after briefing and oral

21 argument, we cite a number of cases in footnote 14

22 indicating that we believe they would, but that's an issue

23 which the Seventh Circuit is in the best situation to

24 resolve, not this Court in the first instance.

25 We would also note, again, this Court's decision

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1 in Braxton v. United States, that it should restrained and

2 circumspect in dealing with sentencing guidelines issues.

3 This sentencing guideline issue in particular is in front

4 of the Sentencing Commission, and we don't see any reason

5 for this Court to engage in advisory opinions or

6 clarifying issues that have not been addressed and dealt

7 with by the lower courts.

8 Thank you, Your Honor.

9 CHIEF JUSTICE REHNQUIST: Thank you,

10 Mr. Waldman. The case is submitted.

11 (Whereupon, at 11:42 a.m., the case in the

12 above-entitled matter was submitted.)

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