In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1848

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TIMOTHY W. SPENCE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03 CR 277—Rudolph T. Randa, Chief Judge.

____________

ARGUED FEBRUARY 16, 2006—DECIDED JUNE 13, 2006

____________

Before BAUER, EASTERBROOK, and MANION, Circuit

Judges.

BAUER, Circuit Judge. Timothy W. Spence pleaded guilty

to conspiracy to distribute marijuana, conspiracy to conduct

financial transactions with drug proceeds, and criminal

contempt. He challenges the judgment and sentence. We

affirm.

I. Background

On January 13, 2004, the grand jury issued a superseding

indictment charging Spence with three drug-related counts.

Count One charged him with conspiracy to distribute

marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
2 No. 05-1848

841(b)(1)(B)(vii), 846, and 18 U.S.C. § 2. Count Two charged

him with attempt to distribute cocaine, in violation of 21

U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. Count Three

charged him with conspiracy to conduct financial transactions, affecting interstate commerce, with the proceeds of

unlawful activity, in violation of 18 U.S.C. §§ 2,

1956(a)(1)(A)(I), and 1956(a)(1)(B)(I).

On February 10, 2004, the magistrate judge entered an

order requiring Spence to submit exemplars of his handwriting and handprinting. After Spence refused, the

magistrate judge entered an order to show cause why

Spence should not be found in contempt of court and

scheduled a hearing for March 25. At the hearing, defense

counsel Michael Ettinger stated that he had discussed the

order with Spence, but requested a continuance to research whether the court had authority to order a defendant

to submit exemplars after indictment. The court continued

the hearing until April 7.

At the rescheduled hearing, Ettinger conceded the

validity of the court’s order. Because Spence still refused to

comply, however, the magistrate judge issued a Certification of Facts Supporting a Finding of Contempt. On May 6,

the district court signed an Order of Contempt finding

Spence in criminal contempt and permitting the charge to

be tried to a jury.

On June 10, 2004, Spence entered into a plea agreement,

which included facts concerning his organization and

leadership of the conspiracies. He understood and signed

the agreement, in which the government expressly stated

its intent to recommend an organizer/leader enhancement

under U.S.S.G. § 3B1.1(a). Spence also filed objections to

the Presentence Report (PSR), including one challenging

the district court’s authority to impose an organizer/leader

enhancement after United States v. Booker, 543 U.S. 220

(2005). Spence pleaded guilty to Counts One and Three of
No. 05-1848 3

the indictment and to the criminal contempt charge. On

March 17, 2005, the district court sentenced him to concurrent terms of 150 months’ imprisonment. Spence appealed.

II. Discussion

On appeal, Spence claims that: (1) he was denied effective

assistance of counsel under the Sixth Amendment; (2) the

district court improperly increased his criminal history

category based on prior convictions; and (3) the district

court improperly imposed an organizer/ leader enhancement.

A. Ineffective Assistance of Counsel

We cautioned Spence’s counsel at oral argument against

raising a claim of ineffective assistance of counsel on direct

review rather than in a collateral proceeding. See United

States v. Harris, 394 F.3d 543, 557 (7th Cir. 2005). Bringing

ineffectiveness claims in this posture leaves defendants

with “little to gain and everything to lose,” United States v.

South, 28 F.3d 619, 629 (7th Cir. 1994) (quoting Bond v.

United States, 1 F.3d 631, 635 (7th Cir. 1993)), because

appellate courts have neither the opportunity to observe

counsel’s performance firsthand nor the advantage of a

well-developed record concerning the attorney’s motivations. See United States v. Farr, 297 F.3d 651, 657 (7th Cir.

2002). The Supreme Court recognized these concerns in

holding that an ineffectiveness claim may be brought in a

collateral proceeding even after the petitioner failed to raise

the issue in a direct appeal. See Massaro v. United States,

538 U.S. 500, 504 (2003). In spite of these concerns,

Spence’s appellate counsel has resolved to pursue this claim

and we will address it. See United States v. Bradford, 78

F.3d 1216, 1225 n.11 (7th Cir. 1996).
4 No. 05-1848

To prevail on an ineffectiveness claim, a defendant must

show that counsel’s “representation fell below an objective

standard of reasonableness” under “prevailing professional

norms.” Strickland v. Washington, 466 U.S. 668, 688 (1984).

The defendant must further demonstrate that counsel’s

deficient performance prejudiced the defense. Id. at 692.

There is a strong presumption that counsel performed

reasonably. United States v. Traeger, 289 F.3d 461, 470 (7th

Cir. 2002) (citing Strickland, 466 U.S. at 690). The defendant must identify specific failures in counsel’s performance

which form the basis of the claim. Id. Spence directs us to

Ettinger’s mistaken belief that the court did not have the

authority to compel his handwriting and handprinting

exemplars. In reliance on this mistaken belief, Spence

claims, he refused to comply with the order, a refusal that

resulted in a criminal contempt charge.

Ettinger first appeared as counsel for Spence at the

March 25 hearing. Based on his preliminary research, he

believed that the court had no authority to order a defendant to submit exemplars post-indictment. After discussing

the matter with his client, Ettinger requested an adjournment of the contempt hearing so that he could research the

issue further. The court continued the hearing until April

7, when Ettinger conceded the court’s authority to issue the

order. Ettinger also then advised the court that Spence

intended to invoke the Fifth Amendment, even though

Ettinger “explained to him [that] handwriting is not covered

by the Fifth Amendment” and the court told him that “the

Fifth Amendment is not applicable under these circumstances.” Although Spence claims that the error was

attributable to Ettinger, these facts demonstrate that

Spence decided of his own volition to invoke the Fifth

Amendment against both Ettinger’s advice and the court’s

admonition.

A counsel’s misapprehension of law may constitute

objectively unreasonable performance. See Williams v.
No. 05-1848 5

Taylor, 529 U.S. 362, 395 (2000) (finding ineffective assistance for failure to investigate “because [counsel] incorrectly

thought that state law barred access to” certain records).

Ettinger had an incorrect understanding of the law until at

least March 25, but then went to great lengths to remedy

the initial error by researching the issue, communicating

with Spence, requesting and receiving an adjournment, and

conducting additional research. See Smith v. Dretke, 417

F.3d 438, 442-43 (5th Cir. 2005) (observing that counsel’s

deficiency in failing “to achieve a rudimentary understanding of” the applicable law “could have been corrected with

minimal legal research”). After taking the proper corrective

actions, he advised Spence on April 7 that there was no

legal justification for refusing to comply with the order.

Beyond communicating the corrected information to Spence,

Ettinger could not control Spence’s course of action. See

Farr, 297 F.3d at 659 (holding that counsel communicated

sufficiently with defendant although he did not “drag

[defendant] kicking and screaming into his office”). Spence

received the appropriate advice and had ample opportunity,

up until the May 6 district court contempt hearing, to act

upon it. At the change of plea hearing, he expressed

satisfaction with the representation he received. Ettinger

did not perform below an objective standard of reasonableness, and Spence was not denied the effective assistance of

counsel.

B. Criminal History Category

Spence claims that the district court improperly increased

his criminal history category from three to four. Once the

government dismissed the 21 U.S.C. § 851 information, he

argues, the district court no longer had the authority to

enhance his sentence based on his prior convictions. We

review de novo the district court’s calculation of a defendant’s criminal history based on prior convictions. United

States v. Roy, 126 F.3d 953, 954 (7th Cir. 1997).
6 No. 05-1848

Under the statute, no person convicted “under this part

shall be sentenced to increased punishment by reason of one

or more prior convictions, unless before trial, or before entry

of a plea of guilty, the United States attorney files an

information with the court. . . .” 21 U.S.C. § 851(a)(1).

Spence correctly notes that the government withdrew the §

851 information, but ignores the statutory language, “under

this part.” The district court considered the prior convictions under the guidelines rather than under § 851. We

have found that the requirements of § 851 apply “when the

government seeks to enhance the maximum penalty under

the recidivist provisions of that statute.” United States v.

Flores, 5 F.3d 1070, 1081 (7th Cir. 1993) (quoting United

States v. Belanger, 970 F.2d 416, 418 n.1 (7th Cir. 1992)).

The section does not apply when the district court sentences

a defendant under the guidelines to an increased sentence

within the statutory range. Id.

By agreement, the § 851 information was dismissed and

Count One carried a term of imprisonment of not less than

five and not more than forty years. On that count, the

district court sentenced Spence to 150 months’ imprisonment, well below the statutory maximum. Additionally, the

district court declined to classify Spence as a career offender, as suggested by the PSR. If the government had

elected to cross-appeal, his sentence would actually increase

because the district court would be required to classify

Spence as a career offender. See U.S.S.G. § 4B1.1(b) (stating

that the applicable offense level from the career offender

table “shall apply” if it is greater than the otherwise

applicable offense level). The district court decided instead

“to consider [the prior offenses] under [18 U.S.C. §] 3553.”

After Booker, the district court must consider the § 3553(a)

factors in determining what sentence to impose. United

States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). A defendant’s criminal history, or lack thereof, is a proper focus of

the court’s inquiry because it relates to several § 3553
No. 05-1848 7

factors. See United States v. Baker, 445 F.3d 987, 992 (7th

Cir. 2006) (stating that the district court’s consideration of

defendant’s lack of criminal history coincided with factors

expressed in §§ 3553(a)(1) (“history and characteristics of

the defendant”), (a)(2)(A) (“just punishment”), and (a)(2)(B)

(“adequate deterrence”)). It was not error for the district

court to consider Spence’s criminal history under § 3553(a).

C. Organizer/Leader Enhancement

Finally, Spence claims that the district court erred in

enhancing his sentence because he never agreed to the facts

establishing his role as an organizer/leader. The district

court followed the PSR recommendation that Spence’s

offense level should be increased by four levels pursuant to

U.S.S.G. § 3B1.1(a). We review the district court’s application of facts to the guidelines de novo. United States v. Scott,

405 F.3d 615, 617 (7th Cir. 2005).

The plea agreement included sufficient facts from which

to impose a § 3B1.1(a) enhancement. Spence understood

and signed the agreement, which expressly stated that the

drug conspiracy of Count One “was organized by” him and

another man. Similarly, for Count Three, the plea agreement detailed his leading role in the money laundering

conspiracy, in which he: (1) used drug proceeds to arrange for the drugs’ transport by airplane; (2) used drug

proceeds to obtain airline tickets used in the conspiracy;

and (3) directed at least three others to transfer funds for

use in the conspiracy. The agreement additionally notified

Spence that the government intended to recommend the

enhancement, although Spence did not join in the recommendation.

The same facts appeared in the PSR, to which he objected

only on the basis that he did not agree “in the Plea Agreement to this enhancement, it is not alleged in the indictment[,] and a jury was not waived as to this issue.” His
8 No. 05-1848

objection, then, related not to the facts establishing his role

as an organizer/leader, but to the district court’s postBooker authority to impose the enhancement. At the

sentencing hearing, Spence again did not object to the facts,

although the court gave him the opportunity to do so.

Spence argues for the first time on appeal that

the language used at sentencing contradicted the district

court’s imposition of the enhancement. The court stated

that, if the case proceeded to trial, the government would

need to prove that Spence “knowingly became a member of

that conspiracy.” Proving that he was a member of the

conspiracy, Spence argues, necessarily implies that he was

not an organizer or leader of it. With this argument, Spence

attempts to transform the word “member,” used casually by

the district court, into a term of art that precludes the

possibility of an enhancement for his aggravated role. The

guideline section, however, does not mention the word

“member.” See U.S.S.G. § 3B1.1. It certainly does not

delineate between an organizer/leader and a member, as it

does between an organizer/leader and a

manager/supervisor. See id. We decline to impute such

profound meaning to the district court’s offhand choice of

words.

Spence’s only objection, then, is a legal one: he claims that

his sentence violated the Sixth Amendment because the

district court rather than a jury imposed the enhancement.

Booker and its progeny, however, “do not foreclose judicial

factfinding in the sentencing context, nor do they dictate

that judges must find those facts beyond a reasonable

doubt.” United States v. Bryant, 420 F.3d 652, 656 (7th Cir.

2005). Rather, “a Sixth Amendment problem emerges if

judicial factfinding results in a sentence exceeding the

statutory maximum, for example, or if such factfinding

requires a particular sentence in the context of a mandatory

sentencing guidelines scheme.” Id. As neither of those

circumstances is present here, the district court properly

made the findings and imposed the enhancement.
No. 05-1848 9

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of

the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-13-06