In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-2592

ISAIAH HICKS,

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. 15-CV-3078 — James B. Zagel, Judge.

____________________

ARGUED FEBRUARY 28, 2018 — DECIDED APRIL 2, 2018

____________________

Before MANION, SYKES, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. A jury found Isaiah Hicks guilty 

of multiple drug offenses. He was sentenced to 360 months in 

prison. After we upheld his convictions and sentence on direct appeal, he filed a pro se motion under 28 U.S.C. § 2255 

claiming that that he had received ineffective assistance of 

counsel. Hicks asserted that his attorney failed to explain to 

him the breadth of conspiracy law, understated the evidence 

against him, and failed to confer with him about pleading 
2 No. 16-2592

guilty. Going to trial cost him a potential reduction in his offense level at sentencing, Hicks claimed, which would have 

lowered his recommended guideline range and ultimate sentence. The district court denied the § 2255 motion without a 

hearing. We affirm. Hicks’s argument that his attorney’s performance prejudiced him is too speculative to require an evidentiary hearing. 

I. Factual and Procedural Background

Hicks led an organization that processed, packaged, and 

sold drugs on Chicago’s south side. United States v. Long, 

748 F.3d 322, 325 (7th Cir. 2014). A jury found him and four 

co-defendants guilty of, among other offenses, conspiracy 

with intent to distribute over 50 grams of crack cocaine. See 21 

U.S.C. § 841(b)(1)(A). Hicks’s presentence investigation report 

put his offense level at 46, corresponding to a guideline sentence of life imprisonment. An offense level of 43 or higher

results in a guideline recommendation of life imprisonment, 

even for defendants in criminal history category I. U.S.S.G. 

Ch. 5, pt. A. An offense level of 42 would have produced a 

range of 360 months to life for Hicks. At Hicks’s sentencing 

hearing, the government requested a sentence of at least 

30 years. Hicks’s attorney argued for 20. 

The district judge observed at sentencing that “the proper 

. . . offense level in this case probably is 45, but, of course the 

table stops at 43 and I thought it was immaterial to decide” 

the exact offense level. The judge noted that the “basic question” was whether to impose life imprisonment. The judge 

said that the recommended life sentence for Hicks would be 

fair given the large quantity of drugs at issue and Hicks’s leadership role in the drug-distribution organization. But the 

judge decided to impose a below-guideline sentence of 
No. 16-2592 3

360 months because he thought that Hicks was capable of reform. 

After his unsuccessful direct appeal, Hicks moved under 

28 U.S.C. § 2255 to vacate his sentence. In his motion and accompanying affidavit, Hicks asserted that his lawyer was ineffective because he did not explain federal conspiracy law to 

him and did not confer with him about the advantages of 

pleading guilty versus going to trial. Hicks further claimed in 

his reply brief that his lawyer had advised him that “there was 

a strong chance at walking.” If the attorney had adequately 

explained Hicks’s exposure from the conspiracy charge and 

the benefits of pleading guilty, Hicks swore, he would have 

pleaded guilty. 

In response, the government argued that Hicks had failed 

to show that his attorney’s actions prejudiced him because the 

§ 2255 motion was not supported by evidence showing that 

the prosecutor had offered Hicks a plea agreement. The district judge agreed with the government and denied Hicks’s 

motion without an evidentiary hearing. The judge reasoned 

that a guilty plea offered without any agreement would have 

had “no value” to Hicks. The scenario Hicks proposed—that 

his sentence would have been shorter if he had received an 

offense-level reduction for acceptance of responsibility—

“would not have reduced the guideline range [below] 

360 months to life.” 

We granted Hicks a certificate of appealability under 

28 U.S.C. § 2253(c)(2) on the issue whether he had been denied 

effective assistance of counsel if, as he says, his lawyer failed 

to inform him about the benefits of pleading guilty without a 

plea agreement. 
4 No. 16-2592

II. Analysis

On appeal, Hicks argues that he was entitled to an evidentiary hearing on whether his lawyer was ineffective. A hearing 

is required unless the record conclusively shows that the movant is not entitled to relief. 28 U.S.C. § 2255(b); Sawyer 

v. United States, 874 F.3d 276, 278 (7th Cir. 2017). We review the 

denial of an evidentiary hearing for abuse of discretion, Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002), so the 

issue is whether the district court abused its discretion by 

finding “conclusively” that Hicks could not establish ineffective assistance of counsel. 

To demonstrate ineffective assistance of counsel, Hicks 

must show that his attorney’s performance was objectively deficient and that the deficient representation caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Galbraith, 313 F.3d at 1008. Because “a court need not determine 

whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the 

alleged deficiencies,” Strickland, 466 U.S. at 697, we address 

only the issue of prejudice and the speculative nature of any 

benefit to Hicks from a guilty plea.

The test for prejudice is whether “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. Hicks 

points out that the district judge said incorrectly in the order 

denying post-conviction relief that his guideline range was 

“360 months to life,” because it had actually been life imprisonment. The judge’s conclusion that a reduction in Hicks’s offense level could not have moved him into a lower range, 
No. 16-2592 5

Hicks continues, was necessarily wrong because it was based 

on a faulty premise. 

Hicks argues that there is a reasonable probability that a 

“blind” guilty plea (without a plea agreement) would have 

led to a sentence lower than 360 months. Assuming that his 

base offense level was 45, he asserts that the three-point reduction he would have received under U.S.S.G. § 3E1.1 in exchange for a blind guilty plea would have left him with an 

offense level of 42 and a guideline range of 360 months’to life 

imprisonment. This demonstrates sufficient prejudice, Hicks 

argues, because there was “a reasonable probability” he 

would have been sentenced to even less prison time. See generally Missouri v. Frye, 566 U.S. 134, 147 (2012). Moreover, he 

notes, in a direct appeal, revealing an error in his guideline 

range would often be enough to merit a new sentencing. See 

Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). 

We conclude that Hicks’s argument is too speculative. 

Working from (1) the mistaken premise of an offense level of 

45, Hicks assumes that by entering a blind plea, (2) he would 

have met the requirements for the two-point acceptance-ofresponsibility adjustment, and (3) he would have made the 

plea in time and in a fashion that would have secured the government’s agreement to the third point, and (4) that the judge 

then would have sentenced him below that lower guideline 

range. This path to potential relief involves too much conjecture.

First, Hicks cannot show that 45 was the correct offense 

level. As the government points out, according to the probation officer, Hicks’s base offense level was 46, not 45. With a 

base offense level of 46, even a full three-point reduction 
6 No. 16-2592

would have given Hicks a new offense level of 43. His guideline sentence recommendation would have remained life imprisonment. U.S.S.G. Ch. 5, pt. A. This forecloses any showing 

of prejudice. Hicks’s entire argument relies on the judge’s 

statement that his offense level was “probably” 45. But that 

was evidently a slip of the tongue. The judge never indicated 

that he was disagreeing with the presentence investigation report’s calculation of 46, let alone explained why he might have 

disagreed. At most, the question of Hicks’s base offense level 

was left unanswered because it was irrelevant based on 

Hicks’s criminal history category of IV and the facts of his 

case. 

Second, even taking Hicks’s argument at face value, there 

is no evidence that he would have met the requirements for 

the two-point reduction. Though the two questions are connected, the reduction is for accepting responsibility, not 

simply pleading guilty. And as the presentence investigation 

report states, there is no information “indicating that [Hicks] 

affirmatively accepted responsibility for his conduct.” Even 

now, Hicks does not declare that he accepts responsibility, so 

there is no reason to believe that he in fact does and would 

have said so before his trial. 

Third, there is even less reason to think that if Hicks had 

entered a timely blind guilty plea, the government would 

have moved under U.S.S.G. § 3E1.1(b) for the third point. 

Without a government motion, the point could not be 

awarded. See United States v. Nurek, 578 F.3d 618, 624 (7th Cir. 

2009). Many factors go into the government’s decision. For example, in one case the government refused to move for the 

third point because the defendant pleaded guilty to only one 
No. 16-2592 7

of the counts against him and showed no remorse. Id. In another, the government did not move for the third point because the defendant had been unclear about his intention to 

plead until late in the government’s trial preparation. United 

States v. Davila-Rodriguez, 468 F.3d 1012, 1014–15 (7th Cir. 

2006). Where defendants pleaded guilty but refused to give 

the government “a full and complete accounting of [their] 

own offense conduct” we condoned the government’s position that “granting acceptance points would be inappropriate.” United States v. Boyle, 484 F.3d 943, 945 (7th Cir. 2007). 

Without a reduction of three points, Hicks would have been 

in the same position: a guideline recommendation of life, 

see U.S.S.G. Ch. 5, pt. A, even assuming a (mistaken) starting 

offense level of 45.

Fourth and finally, Hicks argues that any change in his recommended guideline range likely would have changed his 

sentence because it would have pushed the district court to 

impose a shorter sentence. See Molina-Martinez, 136 S. Ct. at 

1345. It is true that the guideline recommendation of life imprisonment was the district judge’s “starting point and initial 

benchmark.” Id., quoting Gall v. United States, 552 U.S. 38, 49 

(2007) (internal ellipsis and quotation marks omitted). But unlike in Molina-Martinez, there was no error here, only Hicks’s 

assertion that perhaps circumstances could have been different. Unlike demonstrating an error in the guideline calculation, speculating about what might have been is not sufficient 

to show a reasonable probability of a different outcome.

Given the facts the district judge found important at sentencing, there is barely a theoretical possibility, let alone a 

“reasonable” probability, that the judge would have imposed 

a sentence shorter than 360 months. The “basic question” for 
8 No. 16-2592

the judge was “whether [he would] impose life imprisonment,” and he “would’ve imposed life imprisonment if [he] 

had thought that Hicks . . . would not change or had no chance 

at changing.” The judge varied downward from life to 

360 months only because he believed Hicks capable of reform. 

There is no reason to believe that the judge would have varied 

even further downward if the low end of the guideline range 

had been 360 months; all indications are that 30 years was the 

sentence he thought was appropriate under 18 U.S.C. 

§ 3553(a). 

Whether Hicks’s offense level was 45 or 46, his claim of 

prejudice is insufficient to entitle him to an evidentiary hearing. See George v. Smith, 586 F.3d 479, 486 (7th Cir. 2009) 

(“Speculation based on hindsight” insufficient to show ineffective assistance). In any event, the only evidence that Hicks 

says he could have presented is his testimony that if counsel’s 

advice had been different, he would have pleaded guilty. But 

the district judge read this assertion in Hicks’s affidavit, and 

Hicks could not offer evidence that he would have received a 

three-point reduction if he had entered a blind guilty plea. 

Hicks did not allege facts that, if proven, would have entitled 

him to relief, so our inquiry ends here with the issue of prejudice. See Strickland, 466 U.S. at 697.

AFFIRMED.