The 7th Circuit Court of Appeals declined to find a defendant's trial attorneys' representation objectively deficient or ineffective pertaining to how they handled a man’s sentencing hearing.
David Swanson was convicted of various fraud, tax and money laundering offenses. At his sentencing hearing in March 2003, his trial counsel filed 13 pages of objections, including one to the four-level U.S.S.G. Section 3B1.1(a) enhancement in two separate paragraphs. That section deals with organized crime.
Swanson’s attorneys did not orally object to the enhancement, and ultimately U.S. District Judge Sarah Evans Barker in the Southern District of Indiana imposed it. Swanson was originally sentenced to 180 months imprisonment, which was later reduced on appeal to 151 months. He appealed again, but this time he raised an objection to the Section 3B1.1(a) enhancement, which he did not raise in his first appeal. The 7th Circuit declined to rule on it since it wasn’t originally raised.
Then Swanson filed his 28 U.S.C. Section 2255 petition maintaining there was no evidence to support that enhancement and that his trial counsel withdrew the objection at sentencing in a way that failed to preserve it for review on his first appeal. The District Court denied it. Barker found that the trial counsel did not intentionally waive or forfeit the objection to the enhancement and extensively advanced Swanson’s interests. She also found Swanson didn’t suffer any prejudice because she believed his sentence wouldn’t have been lower without the enhancement.
The 7th Circuit agreed with Barker, finding the written objections to the application of the enhancement were sufficiently developed. They also disagreed with Swanson that his attorneys waived his objection to the enhancement. Although initially there was miscommunication between an attorney and Barker at the sentencing hearing, that miscommunication is no basis for finding waiver, Judge John Tinder wrote in David H. Swanson v. United States of America, 11-2338.
Swanson also failed to show the attorneys' representation was objectively deficient.