In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2044

PHILIP DUCATO,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 CV 6663—Blanche M. Manning, Judge.

____________

ARGUED NOVEMBER 13, 2002—DECIDED DECEMBER 18, 2002

____________

Before POSNER, COFFEY, and MANION, Circuit Judges.

POSNER, Circuit Judge. The defendant was convicted by

a jury of conspiracy to possess cocaine with intent to distribute it, and was sentenced to 151 months in prison after

the district judge increased his base offense level because

she found that he had possessed a gun during the commission of the offense. U.S.S.G. § 2D1.1(b)(1). After we affirmed

the judgment in United States v. Cusimano, 148 F.3d 824

(7th Cir. 1998), the defendant moved under 28 U.S.C.

§ 2255 to vacate his conviction and sentence on the ground

that his trial lawyer had provided ineffective assistance

by failing, both at the trial of guilt and at the sentencing hearing, to present evidence from the defendant’s rela-
2 No. 02-2044

tives that might have shown that he was unaware that the

gun was in the glove compartment of the car that he had

driven to the place at which he was arrested following

a controlled buy. His father and brother would have testified that the car was owned by the father, not by the

defendant; that the defendant had bought the gun but

given it to his father as a gift and the father, who needed

a gun for self-protection when he made bank deposits,

had left the gun in the glove compartment without telling

the defendant that he had done so. The district judge denied the section 2255 motion and the defendant has appealed.

The argument that his lawyer should have presented

at trial the evidence that we have just summarized is frivolous. While the discovery of the gun in the glove compartment after the defendant’s arrest was mentioned at

the trial, he had not been charged with a gun offense and

the evidence of his guilt of the offense with which he had

been charged was overwhelming. The lawyer may have

been remiss in not presenting the evidence at the sentencing hearing, but this is too uncertain to justify our reversing the district judge. The testimony of the defendant’s

close relatives would not have had much credibility; and

it was telling that the defendant was arrested when he

started walking toward his car—the undercover agent who

was making the controlled buy was afraid that the defendant was going to the car to get a gun.

But there is a more fundamental reason for affirmance.

The district judge who denied the section 2255 motion with

the relatives’ affidavits before her was the same judge who

had found that the defendant had possessed a gun during the commission of the offense, a finding that implied

that the defendant knew the gun was in the glove compartment, since unknowing possession would not have justified
No. 02-2044 3

an increase in punishment. United States v. Highsmith, 268

F.3d 1141, 1142 (9th Cir. 2001); United States v. Myers, 150

F.3d 459, 465 (5th Cir. 1998). The affidavits didn’t cause

her to change her mind and so it is extremely unlikely

that live testimony tracking the affidavits would have

done so. Kavanagh v. Berge, 73 F.3d 733, 737 (7th Cir. 1996);

In re Grand Jury Matter, 906 F.2d 78, 85-86 (3d Cir. 1990). The

failure to present the evidence at the sentencing hearing

was therefore not prejudicial.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-18-02