Seventh Circuit Reverses Denial of 2255 Without Hearing: Bridges

The Seventh Circuit in Bridges recently heald that ineffective assistance of cousel may be found when a lawyer does not bring forth an objection that would have been successful. This applies even when there is no binding caselaw in the circuit. In doing so, the Seventh Circuit also found that Hobbs Act was no longer a crime of violence.

Bridges and His Procedural History

Bridges was accused of robbing four retail stores in Indinapolis escaping with a total of over $700. He was stopped by police and admitted to the robberies. He was indicted with four counts of Hobbs Act Robbery and pled guilty.

His plea agreement stipulated to guideline calculations including a career offender enhancement under 4B1.1:

“Bridges’ plea stipulated that this enhancement applied based on two prior convictions for robbery in state court and assumed that his new Hobbs Act robbery convictions also counted as crimes of violence.”

The impact of his career offender enhancement was that “his guideline offense level was 29, with criminal history VI as a career offender, for a range of 151 to 188 months. Without the career offender guideline, Bridges’ advisory range would likely have been 57 to 71 months, based on offense level 21 and criminal history category IV.”

Defense counsel did not object to the calculations. Some of his arguments about how he would “age out of crime” were disregarded by the court as he was in his 60’s at the time of the instant offense. Other arguments about his harsh upbringing and rehabilitation efforts were accepted and he was given a below guideline range of 140 months. His plea agreement contained a waiver of appeal.

Bridges and his 2255 proceedings.

Bridges filed a 2255 arguing that his Hobbs Act Robbery was not a crime of violence the way the guidelines define them and that his counsel was ineffective in that his counsel should have recognized that. The judge denied the 2255 without an evidentiary hearing:

“even if Hobbs Act robbery is not a crime of violence, there was no binding circuit precedent on that issue and that the Sixth Amendment does not require defense counsel to anticipate future developments in case law.”

Hobbs Act Robbery not a Crime of Violence In the 7th Circuit

First the court determined that Hobbs Act Robbery was not a crime of violence. The court used the categorical approach and reasoned that “Hobbs Act robbery is not a categorical match for generic robbery because it can be committed through threats against property.”

Similarly, “Extortion does not fill the categorical gaps for Hobbs Act robbery because the Guidelines use “physical injury” to mean injury to a person. As the Tenth Circuit explained in [United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017)]: “The Guidelines contain several examples where ‘physical injury’ is distinguished from property damage or where the phrase clearly refers to injury to a person…Hobbs Act robbery is not a categorical fit, so Bridges was not convicted of a crime of violence as the Guidelines define the phrase. The career offender guideline should not have been applied.”

Did Bridges’ Lawyer show deficient performance by not bringing forth this crime of violence argument?

The court reasoned that at the very least, Bridges was entitled to a hearing:

“Bridges is entitled to a hearing unless the record and motion “conclusively show that [he] is entitled to no relief.” 28 U.S.C. § 2255(b). The district court reasoned that the lack of controlling precedent in this circuit defeated Bridges’ Sixth Amendment argument. We respectfully disagree. In some circumstances, defense counsel may be required to anticipate arguments foreshadowed but not yet adopted by existing case law. Based on the timeline and allegations in the petition, we cannot say that this claim is conclusively foreclosed. Bridges is entitled to try to prove his allegations at a hearing.”

The court indicated that while there was no on-point case, other caselaw from other circuits showed that this argument would have been reasonable to investigate:

“If proved, counsel’s apparent failure to investigate or raise a challenge to the career offender enhancement here could be deemed to have been deficient performance. There was no binding in-circuit precedent on this exact issue, but case law sufficiently foreshadowed this argument, which had been brought to the forefront by both a recent amendment to the Guidelines and several court of appeals decisions interpreting Amendment 798. Bridges is entitled to a “prompt” hearing to prove his allegations. 28 U.S.C. § 2255(b)… The need to investigate whether Bridges had a viable categorical approach argument was especially pronounced in this case because the Sentencing Commission had narrowed its definition of “crime of violence” months before Bridges committed these robberies, and the enhancement nearly tripled the advisory sentencing range. That effect made this a crucial issue to investigate.”

“The case for ineffective assistance of counsel here appears to be stronger than other similar cases concluding that failures to raise new but well-supported arguments were deficient performance. The most directly analogous case is Cuthbertson v. United States, 833 F. App’x 727 (10th Cir. 2020) (non-precedential), which concerns the same issue—whether counsel was ineffective for failing to recognize that Hobbs Act robbery is not a crime of violence under the amended § 4B1.2 definition. In Cuthbertson, though, the defendant was sentenced even before O’Connor was issued. The Tenth Circuit still found counsel’s performance wanting. 833 F. App’x at 733–34. We need not reach that far here because O’Connor had already laid out that path when Bridges pleaded guilty and was sentenced.”

The significance of this was evident in the sentence that Bridges received:

“In this case, the erroneous application of the career offender enhancement almost tripled the low end of the guideline range from 57 months to 151 months. Bridges has shown that counsel’s performance may have been deficient in not raising this issue, following the recent Amendment 798, which substantially narrowed the definition of “crime of violence,” and the well-known counterintuitive and defendant-friendly results produced by the categorical approach.”

The Government conceded that the denial of relief here without a hearing cannot be affirmed solely on a lack of prejudice:

“In this case, the erroneous application of the career offender enhancement almost tripled the low end of the guideline range from 57 months to 151 months. Bridges has shown that counsel’s performance may have been deficient in not raising this issue, following the recent Amendment 798, which substantially narrowed the definition of “crime of violence,” and the well-known counterintuitive and defendant-friendly results produced by the categorical approach.
Here, the record shows that the district court and defense counsel treated the erroneous range of 151 to 188 months as the starting point. No evidence suggests that the district court would have imposed a 140-month sentence even if the advisory guideline had a high end of 71 months…The district court seemingly did so here in attempting to consider where the 140-month sentence would fall if the career offender guideline did not apply. If the court had computed the counterfactual guideline range properly, counsel’s possibly deficient performance might well have withstood scrutiny.”

The Seventh Circuit Reversed the judgement and remanded the case back down to the district court.

Notes:

Under normal circumstances a Lawyer does not need to have a crystal ball. But there are times when a lawyer should anticipate what their court would do especially based on what other circuit courts have done in similar circumstances. These sort of 2255’s are going to require research in order to determine what was the state of the law in the other districts at the time of the plea and the sentencing. If you believe that your lawyer made a similar error please call us at 972-483-4865 or email us at [email protected]