### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 1042

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

M ARVIN C ATES

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:18

‐ cr

‐ 00072

‐ RLM

‐ MGG

‐ 1

— Robert L. Miller, Jr.

, Judge

.

____________________

A RGUED D ECEMBER 3, 2019

— D ECIDED F EBRUARY 18, 2020

____________________

Before W OOD

, Chief Judge

, and H AMILTON and S CUDDER

,

Circuit Judges

.

H AMILTON

, Circuit Judge

. Marvin Cates pleaded guilty to

possessing a fi rearm as a person with a prior felony convic

‐

tion in violation of 18 U.S.C. § 922(g)(1). After the court ac

‐ cepted his guilty plea, Cates sought to withdraw it. The dis

‐

trict judge denied the motion to withdraw the plea and sen

‐

tenced Cates.2 No. 19

‐ 1042

Cates has appealed, claiming ine ff ective assistance of

counsel. He says that he made a timely request to withdraw

his guilty plea and that his trial counsel was de fi cient in fail

‐ ing to move to withdraw it. We questioned whether Cates

truly wishes us to decide his ine ff ective

‐ assistance claim on

this record, including a directive to his appellate counsel to

review the question with him after oral argument. He has in

‐

sisted that he wants to have his claim decided on the existing

record. Because the record contains insu ffi cient evidence to

support Cates’s ine ff ective

‐ assistance claim, we a ffi rm.

I. Factual Background and Procedural History

Marvin Cates was transporting drugs from Chicago to

South Bend when he was pulled over by a sheri ff ’s deputy for

driving without rear license

‐ plate lights. When the deputy ap

‐ proached Cates’s vehicle, he saw a revolver on the passenger

seat. Cates admi tt ed that he did not have a license for the fi re

‐

arm and was placed under arrest. Retail quantities of cocaine

and heroin were later found in his possession. Cates was

charged in federal court with one count of being a felon in

possession of a fi rearm in violation of 18 U.S.C. § 922(g)(1). He

moved to suppress the items seized during the search of his

car, but the motion was denied.

On September 12, 2018, Cates and the government submit

‐

ted a plea agreement to the court. Cates agreed to plead guilty

to the sole count of the indictment. The government agreed in

exchange not to bring additional charges against him. As part

of the plea agreement, Cates waived his right to appeal or oth

‐

erwise contest his conviction “on any ground other than a

claim of ine ff ective assistance of counsel.”No. 19

‐ 1042 3

The plea agreement was referred to a magistrate judge,

who held a Rule 11 hearing on September 17. The magistrate

judge found that Cates was competent to enter a plea, did so

knowingly and voluntarily, and understood the rights he was

waiving, including the right to appeal. The magistrate judge

recommended that the district judge accept the guilty plea.

On October 3, the district judge accepted the guilty plea, fi nd

‐ ing Cates guilty of the sole count in the indictment. The case

was on track for sentencing.

On October 16, however, Cates’s fi rst a tt orney moved to

withdraw, reporting a complete breakdown of the a tt orney

‐

client relationship. A new lawyer was appointed and then

fi led a motion to withdraw the guilty plea. The motion said

that Cates had entered the guilty plea under duress because

he was threatened with new charges and was given only one

hour to accept the plea deal or face the risk of additional

prison time.

On December 13, 2018, the district court held a hearing on

the motion to withdraw the guilty plea. Cates’s testimony at

the hearing focused on his claim that he entered the plea un

‐

der duress. He also testi fi ed, however, that before he received

the le tt er from the district judge accepting the guilty plea, he

had told counsel that he “changed [his] mind” and did not

want to waive his rights, but that his lawyer told him that it

was too late to withdraw the plea. Cates estimated that the

judge’s le tt er arrived on October 4 or 5. Though Cates could

not pinpoint an exact date, he insisted that he told his lawyer

he wanted to withdraw his plea before the judge’s le tt er ar

‐

rived. The district court denied Cates’s motion to withdraw

the plea, concluding that he had not been under duress or un

‐ duly pressured given the fi ve days between the submission of4 No. 19

‐ 1042

the guilty plea and the Rule 11 hearing. Cates was sentenced

to 262 months in prison. He quali fi ed for the enhanced sen

‐

tence under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e), based on fi ve prior convictions for serious drug of

‐

fenses or violent felonies.

II. Analysis

The sole issue on appeal is whether Cates received the ef

‐

fective assistance of counsel guaranteed by the Sixth Amend

‐

ment to the United States Constitution. He argues that his trial

lawyer was constitutionally ine ff ective in failing to move to

withdraw his guilty plea when he could still withdraw his

plea as of right. This issue falls within the ine ff ective

‐ assis

‐

tance exception to the appeal waiver in the plea agreement.

We review for plain error because Cates never adequately

raised the ine ff ective

‐ assistance claim before the district court.

See Fed. R. Crim. P. 52(b). The motion to withdraw his plea

gave duress as the reason for withdrawing the plea. It did not

mention a timely a tt empt to withdraw the guilty plea before

the court accepted it, though Cates did mention this during

his testimony at the hearing. Cates acknowledges correctly in

his brief that the ine ff ective

‐ assistance argument was not

raised as a ground for withdrawing the guilty plea, claiming

that “second defense counsel failed [at the hearing] to raise

the proper grounds for withdrawing the plea.” 1

Strickland v. Washington

, 466 U.S. 668 (1984), provides the

framework for evaluating ine ff ective assistance of counsel

1 Cates also argues that his second trial counsel provided ineffective as

‐

sistance by failing to raise the ineffective assistance of Cates’s first trial

counsel as a ground for withdrawing the guilty plea. We need not analyze

it separately.No. 19

‐ 1042 5

claims. Cates “must show both that his a tt orney’s perfor

‐

mance was outside the range of professionally competent as

‐

sistance and that the de fi cient performance denied him a fair

trial.” United States v. Stark

, 507 F.3d 512, 521 (7th Cir. 2007),

quoting United States v. Banks

, 405 F.3d 559, 569 (7th Cir. 2005).

In addition, “counsel is strongly presumed to have rendered

adequate assistance and made all signi fi cant decisions in the

exercise of reasonable professional judgment.” Strickland

, 466

U.S. at 690; see also Banks

, 405 F.3d at 568 (“There is a strong

presumption for fi nding counsel e ff ective, and [defendant]

bears the burden of proving otherwise.”).

Cates argues that his fi rst lawyer’s representation was un

‐ constitutionally de fi cient because he did not move to with

‐

draw the guilty plea when Cates asked him to do so. Under

Federal Rule of Criminal Procedure 11(d)(1), “A defendant

may withdraw a plea of guilty or nolo contendere before the

court accepts the plea, for any reason or no reason

... .” See

also United States v. Shaker

, 279 F.3d 494, 497–98 (7th Cir. 2002)

(reversing denial of motion to withdraw guilty plea before

court had accepted plea). Because the decision to plead guilty

lies entirely with the defendant, Cates argues, counsel must

move to withdraw the plea when asked, and a failure to do so

constitutes de fi cient representation. Cates says that he was

prejudiced because, if counsel had moved to withdraw the

plea promptly, Cates would have had the opportunity to go

trial. See United States v. Arami

, 536 F.3d 479, 484 (5th Cir.

2008) (applying plain

‐ error review to reverse denial of motion

to withdraw guilty plea before district court had accepted it).

Raising an ine ff ective

‐ assistance claim on direct appeal is

almost always imprudent. Proceedings in the district court

aim to determine guilt or innocence. They are unlikely to6 No. 19

‐ 1042

show conclusively whether a lawyer’s representation was in

‐ adequate and had an e ff ect on the outcome of litigation. Mas

‐

saro v. United States

, 538 U.S. 500, 504–05 (2003). Unless the is

‐

sue was raised and a full record developed in the trial court,

an appellate court cannot determine on direct appeal whether

counsel’s assistance was ine ff ective. Essential evidence of

counsel’s actions and reasoning will simply be lacking. Id. By

raising an ine ff ective

‐ assistance claim prematurely, on direct

appeal, a defendant can easily throw away any chance he has

at success because the claim may not be presented a second

time on collateral a tt ack under 28 U.S.C. § 2255. Peoples v.

United States

, 403 F.3d 844, 846 (7th Cir. 2005), citing United

States v. Taglia

, 922 F.2d 413, 418 (7th Cir. 1991). For these rea

‐

sons, we have repeatedly warned defendants against bringing

ine ff ective

‐ assistance claims on direct appeal. E.g., Ramirez v.

United States

, 799 F.3d 845, 853 (7th Cir. 2015); United States v.

Stuart

, 773 F.3d 849, 850 (7th Cir. 2014); United States v. Moody

,

770 F.3d 577, 582 (7th Cir. 2014); United States v. Bryant

, 754

F.3d 443, 444 (7th Cir. 2014); United States v. Flores

, 739 F.3d

337, 342 (7th Cir. 2014); United States v. Isom

, 635 F.3d 904, 909

(7th Cir. 2011); Peoples

, 403 F.3d at 846; United States v. Harris

,

394 F.3d 543, 558 (7th Cir. 2005).

Instead, defendants can and should raise these claims in

collateral a tt acks under 28 U.S.C. § 2255. E.g., Massaro

, 538

U.S. at 504–05; Flores

, 739 F.3d at 341 (collecting cases). This

way, a defendant can compile a full record before the district

court in proceedings speci fi cally aimed at developing the

facts relevant to an ine ff ective

‐ assistance claim. Massaro

, 538

U.S. at 505. The district court can then weigh evidence and

come to a decision on the merits.No. 19

‐ 1042 7

Here, we cannot determine whether Cates’s representa

‐

tion was de fi cient and whether he was prejudiced by it. The

record simply does not contain the necessary information. See

Flores

, 739 F.3d at 341. If Cates indeed requested that trial

counsel withdraw the plea before the district judge accepted

it, then he might be able to prevail under Strickland

. But the

only evidence we have are Cates’s own statements describing

an out

‐ of

‐ court discussion. We do not know if Cates’s lawyer

would con fi rm or deny that the discussion in question took

place. He has not yet been asked. We do not even know when

the key discussion took place. Cates estimated that he re

‐

ceived the le tt er con fi rming acceptance of the plea on October

4 or 5, but that does not necessarily indicate that he spoke to

his lawyer before the plea was accepted on October 3. For all

we know, they could have had the conversation on October 4,

when it was already too late to withdraw the plea. Cates can

‐

not rebut the presumption of regularity when essential pieces

of evidence are missing and the relevant record contains only

his own self

‐ serving statements, which the district court was

not required to credit.

If Cates had saved his ine ff ective

‐ assistance claim for a col

‐

lateral a tt ack under § 2255, the district judge would have been

able to hear the lawyer’s side of the story and to consider any

other relevant evidence. Perhaps counsel might have con

‐

ceded that he erroneously informed Cates that he could not

withdraw his guilty plea. On the other hand, he might instead

have contested Cates’s story, requiring the fact fi nder to de

‐

cide whom to believe. On direct appeal, we lack the infor

‐

mation necessary to make such determinations. See Massaro

,

538 U.S. at 506 (“Even meritorious claims would fail when

brought on direct appeal if the trial record were inadequate to

support them.”).8 No. 19

‐ 1042

Since Massaro

, we have encouraged counsel to make their

clients aware of the signi fi cant risks of raising ine ff ective

‐ as

‐

sistance claims on direct appeal, sometimes even going so far

as to give appellate counsel one last opportunity after oral ar

‐

gument to dissuade defendants from pursuing a strategy al

‐

most always doomed to fail. See, e.g., Flores

, 739 F.3d at 342.

We asked counsel at oral argument whether Cates was aware

of the risks inherent in direct appeal. She said that he was. Af

‐

ter oral argument, we gave Cates one last opportunity to with

‐

draw his ine ff ective

‐ assistance claim, instructing his appellate

lawyer to confer with him once more and to advise the court

of his decision. Counsel reported that she explained the stra

‐ tegic reasons to resolve the issue under § 2255 rather than on

direct appeal, but that Cates chose to go forward with the ap

‐ peal, as is his right. The judgment of the district court is

AFFIRMED.