Gilbert Spiller v. USA
Filed opinion of the court by Judge Flaum. AFFIRMED. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge and David F. Hamilton, Circuit Judge. [6837521-1]  [15-2889]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 7821 — Charles P. Kocoras, Judge.
ARGUED APRIL 5, 2017 — DECIDED APRIL 28, 2017
Before WOOD, Chief Judge, and FLAUM and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Gilbert Spiller pled guilty to drug
and firearm charges. He later filed a petition under 28 U.S.C.
§ 2255, arguing that his counsel was constitutionally ineffective during the plea-bargaining process. The district court denied Spiller’s petition without holding an evidentiary hearing. We affirm.
On July 13 and 21, 2011, Gilbert Spiller sold a total of 121
grams of crack cocaine for $5,000 to an undercover confidential informant. Spiller later sold a loaded .40 caliber handgun
for $500 to the same informant, whom Spiller knew to be a
felon who planned to use the gun to protect his drug operation from rival gang members. The government proceeded to
charge Spiller with two counts of distributing a controlled
substance, in violation of 21 U.S.C. § 841(a)(1) (“Counts One
and Two”), and one count of selling a firearm to a felon, in
violation of 18 U.S.C. § 922(d)(1) (“Count Three”). The government also filed a notice, pursuant to 21 U.S.C. § 851, that it
would seek an enhanced mandatory minimum sentence
based on Spiller’s three prior drug felonies.
On July 30, 2012, the government sent Spiller’s counsel a
proposed plea agreement, under which Spiller would plead
guilty to Count One and acknowledge that the conduct underlying Counts Two and Three was relevant for sentencing
purposes, pursuant to U.S.S.G. § 1B1.3. Under the proposed
agreement, Spiller would also stipulate to the government’s
Guidelines calculation, including a “career offender” enhancement pursuant to § 4B1.1.
Defense counsel responded to the government’s proposal
on August 8 with the following inquiry:
Mr. Spiller has asked a great question and one
that I cannot seem to answer for him: what ex-
actly does he gain if he proceeds by plea agreement, as opposed to a blind plea. Is the government withdrawing the 851? Can you tell me
one concession the government makes in the
draft plea you sent over? I want to make sure I
am not missing something.
That same day, the government responded, in relevant part:
The government is not withdrawing the 851 notice. You ask a good question, and I admit that
the plea agreement does not offer a whole lot
beyond a blind plea. There are a few minor benefits: we would dismiss two counts so he would
save himself $200 in special assessments. He
also gets the recognition in the plea agreement
that, as things currently stand, he is entitled to
acceptance of responsibility ….
Spiller rejected the government’s proposed plea agreement and, instead, executed a blind plea. In relevant part,
Spiller pled guilty to all three counts and “expressly reserve[d] the right to disagree with the government's guidelines calculation.”
At Spiller’s sentencing hearing on February 27, 2013, the
parties did not dispute that Spiller’s Guidelines range was 262
to 327 months’ imprisonment—accounting for Spiller’s conduct, his status as a career offender, and his acceptance of responsibility. While the government sought a sentence within
the Guidelines range, however, defense counsel sought the
A “blind plea” is a “guilty plea made without the promise of a concession from either the judge or the prosecutor.” Blind Plea, BLACK’S LAW
DICTIONARY (10th ed. 2014).
120-month mandatory minimum, highlighting the wellknown crack-cocaine disparity and Spiller’s troubled upbringing. Ultimately, the district court sentenced Spiller to 240
months’ imprisonment, and we affirmed on appeal. United
States v. Spiller, 732 F.3d 767 (7th Cir. 2013).
On October 6, 2014, Spiller filed a pro se petition under
28 U.S.C. § 2255, contending, in relevant part, that his attorney
had been constitutionally ineffective by counseling him to execute a blind plea rather than the government’s proposed plea
agreement. The district court denied Spiller’s petition, without holding an evidentiary hearing, and denied him a certificate of appealability. We granted it, however, and this appeal
“When reviewing the denial of a federal prisoner’s § 2255
petition, we review the district court’s legal conclusions de
novo, its factual findings for clear error, and its decision to
forgo holding an evidentiary hearing for abuse of discretion.”
Martin v. United States, 789 F.3d 703, 705–06 (7th Cir. 2015) (citing Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008)).
“The district court’s decision must strike us as fundamentally
wrong for an abuse of discretion to occur.” Williams v. Chi. Bd.
of Educ., 155 F.3d 853, 857 (7th Cir. 1998) (citation omitted).
Spiller argues that the district court abused its discretion
by denying his petition without holding an evidentiary hearing. “The petitioner’s burden for receiving an evidentiary
hearing is relatively light ….” Torres-Chavez v. United States,
828 F.3d 582, 586 (7th Cir. 2016) (citation omitted). A district
court must grant a hearing if the petitioner alleges facts that,
if proven, would entitle him to relief. Martin, 789 F.3d at 706
(citation omitted). “It is well-established,” however, “that a
district court need not grant an evidentiary hearing in all
§ 2255 cases.” Id. For instance, a hearing is not required if “the
motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).
Additionally, if the record contains sufficient facts to explain
counsel’s actions as “tactical,” generally no hearing is required. See Osagiede, 543 F.3d at 408 (citation omitted). Finally,
a hearing is unnecessary if the petitioner makes allegations
that are “vague, conclusory, or palpably incredible,” rather
than “detailed and specific.” Martin, 789 F.3d at 706 (quoting
Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006)).
Spiller alleged below that his lawyer was constitutionally
ineffective for failing to investigate the facts and law relevant
to his case, and for giving “deficient” advice regarding his
plea options.2 The Sixth Amendment provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right to …
have the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. This right extends to the plea-bargaining process.
2 At the outset, the district court concluded that the government’s pro-
posed plea agreement was not a formal plea offer, but merely a draft
agreement, as it did not have a “fixed expiration date.” Thus, concluded
the district court, all of Spiller’s arguments regarding his counsel’s ineffective assistance at the plea-bargaining stage were inapposite. The court
then addressed the merits of Spiller’s ineffective-assistance claim, however, and determined that defense counsel’s performance was not deficient and did not prejudice him. Spiller stresses that there is no “fixed expiration date” requirement, making the district court’s initial ruling a legal
error that warrants remand. Even assuming this ruling was incorrect, it
constitutes harmless error in light of the court’s subsequent rulings on the
merits. See Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1079
(7th Cir. 2016) (“An error is harmless if it does not affect a party’s substantial rights.”) (citation omitted).
Martin, 789 F.3d at 706 (citing Lafler v. Cooper, 566 U.S. 156, 162
(2012)); see also Missouri v. Frye, 566 U.S. 133, 140–42 (2012). To
demonstrate that his lawyer was constitutionally ineffective,
Spiller must “satisfy the familiar two-prong test set forth in
Strickland v. Washington.” Makiel v. Butler, 782 F.3d 882, 897
(7th Cir. 2015) (citing Strickland, 466 U.S. 668 (1984)). First,
Spiller must show that his counsel’s performance fell below
an objective standard of reasonableness. Strickland, 466 U.S. at
687–88. Second, he must show that counsel’s deficient performance prejudiced the defense, which means there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Id. at
691–92, 694. “When applying Strickland to the facts of a particular case, ‘there is no reason for a court … to approach the
inquiry in the same order or even to address both components
of the inquiry if the defendant makes an insufficient showing
on one.’” McDaniel v. Polley, 847 F.3d 887, 893 (7th Cir. 2017)
(quoting Strickland, 466 U.S. at 697) (alteration in original).
Here, we need go no further than Strickland’s performance
prong. In the plea-bargaining context, “we have noted that a
reasonably competent lawyer will attempt to learn all of the
relevant facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis to the client before allowing the client to plead guilty.” Bethel v. United
States, 458 F.3d 711, 717 (7th Cir. 2006) (citing cases). The record, taken as a whole, demonstrates that Spiller’s counsel did
First, as reflected in her inquiry to the government, defense counsel discussed the proposed plea agreement with
Spiller. His attorney then considered the government’s proposal and emails and determined that Spiller would be better
off pleading blindly. According to Spiller’s affidavit, which he
attached to his petition, his lawyer recommended that he execute a blind plea declaration, explaining to him that he
would “get a better sentence with pleading blindly” and that
a blind plea would “get [him] a better deal [and] is more favorable than the government’s offer.” The resulting plea declaration distinguishes this case from others where attorneys
have advised clients to not plead guilty. In those instances,
there may be a natural gap in the record: The attorney recommends that the client reject the government’s offer, and the client proceeds to trial. Here, Spiller did plead guilty, and his
counsel drafted an eleven-page plea declaration illustrating
her and Spiller’s understanding of the relevant facts and law
underlying the case. Indeed, the signed agreement states, in
Defendant GILBERT SPILLER, after extensive
consultation with his attorney, … acknowledges
and states the following: … Mr. Spiller has read
the charges against him contained in the indictment, and those charges have been fully explained to him by his attorney. Mr. Spiller fully
understands the nature and elements of the
crimes with which he has been charged….Mr.
Spiller agrees that this Plea Declaration shall be
filed and become part of the record of the
case….Mr. Spiller further acknowledges that he
has read this Plea Declaration and carefully reviewed each provision with his attorney.
When assessed in its entirety, the record conclusively shows
that defense counsel discussed with Spiller his case and plea
options and advised him accordingly. This is constitutionally
sufficient. Consequently, the district court did not abuse its
discretion by concluding, without an evidentiary hearing,
that Spiller was not entitled to relief.
Spiller stresses the lack of evidence that his attorney investigated the differences between the two plea options, arguing
that the district court simply presumed that defense counsel’s
decision was tactical. Again, however, the record shows otherwise. Contrary to Spiller’s assertion, counsel’s email to the
government evidences the very research he complains was
lacking: His attorney reviewed Spiller’s plea options, specifically inquired of the government whether there were differences, examined the government’s response, and suggested
that Spiller plead blindly. Further, the government conceded
to Spiller’s lawyer that its proposal did not “offer a whole lot
beyond a blind plea.” So, according to Spiller’s signed plea
declaration and affidavit, defense counsel reserved Spiller’s
right to challenge the government’s Guidelines calculation—
a right he otherwise would have sacrificed under the government’s proposal—and believed that she could secure him a
“better sentence.” In all, the record was sufficient to explain
counsel’s decision as strategic, thereby eliminating the need
for an evidentiary hearing. See Osagiede, 543 F.3d at 408 (citation omitted).
Spiller takes issue with his attorney’s strategy for two reasons—neither of which is convincing. First, he relies on Toro v.
Fairman, 940 F.2d 1065 (7th Cir. 1991), in questioning whether
it was reasonable for defense counsel to believe that challenging the government’s Guidelines calculation would have been
successful. In Toro, however, “counsel admitted that the decision to proceed to trial was not so much a rational, professional judgment, but an emotional one.” Id. at 1068. Not so
here: Spiller’s lawyer believed she could secure her client a
better sentence and reserved certain arguments to do just that.
This sounds in strategy rather than in emotion, and a “strategic decision, even if clearly wrong in retrospect, cannot support a claim that counsel’s conduct was deficient,” United
States v. Yancey, 827 F.2d 83, 90 (7th Cir. 1987) (citing Strickland,
466 U.S. at 689–91). Second, Spiller highlights that defense
counsel did not, in fact, end up challenging the government’s
calculation; but he does not point to any authority for the
proposition that an attorney must adhere to an initial decision
throughout a case for that decision to qualify as tactical. Rather, we analyze whether that attorney’s decision is strategic
at the time she makes it. Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the
time.”). This is especially so in the plea-bargaining context.
See Bethel, 458 F.3d at 717 (highlighting “the many uncertainties surrounding the difficult decision of whether to plead
guilty” (citing McMann v. Richardson, 397 U.S. 759, 769–70
Lastly, Spiller’s reliance on Moore v. Bryant, 348 F.3d 238
(7th Cir. 2003), and Jones v. Calloway, 842 F.3d 454 (7th Cir.
2016), is misplaced. In Moore, we focused on “inaccurate advice,” such as advice that “goodtime credits could severely
lengthen [a] sentence if [the client] proceeded to trial and
lost.” 348 F.3d at 241–42. Here, Spiller’s only argument resembling a claim of inaccurate advice was that defense counsel
informed him that he would receive a more favorable sentence if he pled blindly. We have clarified, though, that “[a]n
inaccurate prediction of a sentence alone is not enough to
meet the [Strickland] standard.” Bethel, 458 F.3d at 717 (citations omitted). Additionally, in Jones, we held that the trial
court had misapplied Strickland in finding that a defense attorney’s failure to call a particular witness constituted a strategic decision, in part because “the state appellate court had
no basis in the record to classify counsel’s failure to call [the
witness] as a strategic trial choice.” 842 F.3d at 464. Here, however, the district court did have a sufficient basis in the record
to characterize counsel’s decision as strategic: Her email,
Spiller’s affidavit, the government’s proposed plea agreement, and Spiller’s Plea Declaration, taken together, obviated
the need for an evidentiary hearing.
For the foregoing reasons, we AFFIRM the judgment of the
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