In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-3302, 99-4025, 99-4026, 99-4091 & 99-4092

United States of America,

Plaintiff-Appellee,

v.

Trevor Bjorkman, Paul Gunderson, Travis

Fearing, Dennis Gunderson, and Joel Hagen,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 99 CR 37--John C. Shabaz, Judge.

Argued June 8, 2001--Decided October 30, 2001

 

 Before Bauer, Easterbrook, and Kanne,

Circuit Judges.

 Per Curiam. Pursuant to guilty pleas,

the five appellants were convicted of

conspiracy to possess with intent to dis

tribute and to distribute marijuana. They

raise various challenges to their

sentences. In addition, one of the appel

lants appeals the district court’s denial

of his motion for substitution of

counsel, and another objects to the fine

imposed by the court. We affirm.

BACKGROUND

 The five appellants participated in a

drug operation which involved buying

marijuana from Mexican sources through

contacts in Arizona and transporting it

to Minnesota, where it was repackaged and

distributed to a group of customers. The

enterprise started some time in February

of 1996, when Paul Gunderson paid an

individual in Tempe, Arizona $10,000 to

set up a 100-pound marijuana deal. Paul

Gunderson’s brother Dennis and two others

went to the marijuana source near Tuscon,

and Dennis and one other person picked up

the 100 pounds of marijuana and drove it

to Paul Gunderson’s apartment in

Minnesota.

 At some point in 1996, Paul Gunderson
offered Joel Hagen a 50% interest in the

drug operation. From early to mid 1996,

Paul Gunderson and Hagen used a number of

drivers to bring the marijuana in from

Arizona, including Dennis Gunderson,

Trevor Bjorkman, Travis Fearing, and Wade

Stafne. These drivers brought back

several loads of marijuana, each of which

weighed approximately 100 pounds. The

loads were delivered either to Hagen’s

residence or to Paul Gunderson’s

apartment, both in Minnesota. There,

Hagen, Paul Gunderson and others

repackaged the marijuana into one-pound

freezer baggies and distributed it to

regular customers, each of whom received

between 10 and 40 pounds of marijuana. At

various times during 1996, Bjorkman and

Fearing played the role of "human

collateral" (that is, they were held in

Arizona by the marijuana suppliers until

the suppliers were paid). By mid-1996,

Hagen wanted out of the partnership, but

he continued to receive large portions of

the marijuana delivered to Paul

Gunderson.

 In early 1997, Hagen and Paul Gunderson

had a falling out and ended their drug

partnership. Thereafter, Paul and Dennis

Gunderson continued to obtain marijuana

from their Mexican sources in Tuscon, but

they used a new set of drivers. After

authorities executed a search warrant at

Paul Gunderson’s residence in June of

1997, Gunderson sold the operation to his

brother Dennis and Dan Madsen for

$100,000. Meanwhile, Hagen went into

business with an individual named Scot

Hendricks. Hagen arranged for deliveries

of marijuana to be brought to Minnesota

by couriers, including Fearing and

Stafne. The marijuana was repackaged at

Hagen’s residence, after which Hagen and

Hendricks each claimed a portion for

sale. Hagen and Hendricks continued to

obtain marijuana from Arizona in this

manner throughout the spring and summer

of 1998, receiving at least one shipment

of approximately 100 pounds at Hagen’s

residence in May of 1998. 

 In August of 1998, search warrants were

executed at 18 locations throughout

Wisconsin and Minnesota. A search of

Hagen’s residence led to the seizure of

$122,640, a scale, drug packaging

materials, two Smith & Wesson handguns,

and a clip loaded with hollow-point

bullets. At Hagen’s brother’s residence,
police found an additional $30,000 of

Hagen’s money. A search of Paul

Gunderson’s residence yielded ten onepound bags of marijuana and a number of

firearms.

 On June 3, 1999, the appellants and two

others were charged in Count 1 of a

superceding indictment with conspiracy to

possess with intent to distribute and to

distribute marijuana in violation of 21

U.S.C. sec. 846 and 841(a)(1). Consistent

with then-existing case law, the

indictment did not allege a quantity of

marijuana. Each of the defendants pleaded

guilty to Count 1, and each signed a

written plea agreement. Each defendant’s

plea agreement provided that the offense

to which he was pleading guilty exposed

him to a mandatory minimum sentence of 5

years, and a maximum sentence of 40

years. The district court repeated these

facts during each defendant’s plea

hearing, whereupon each indicated his

understanding and agreement. In addition,

Bjorkman’s, Paul Gunderson’s, and

Fearing’s plea agreements set out the

government’s position regarding the

amounts of marijuana attributable to each

defendant. Addressing Bjorkman and Paul

Gunderson individually during their plea

hearings, the district court repeated the

government’s position on the amounts of

marijuana attributable to them.

Presentence reports (PSRs) were prepared

for each of the five defendants. Each PSR

calculated the defendant’s base offense

level under the guidelines with reference

to particular drug quantities. In

Bjorkman’s, Fearing’s, and Paul

Gunderson’s cases, the PSR’s calculation

as to drug quantities fell within the

ranges posited by the government in each

of their plea agreements. Moreover, the

PSRs found each of the five defendants

accountable for quantities of marijuana

well in excess of the amount triggering a

sentencing exposure of 5 to 40 years. 

 During a joint plea hearing held for

Dennis Gunderson, Paul Gunderson,

Fearing, and Hagen, the government set

out a detailed, consolidated factual

basis which referenced quantities of

marijuana. For example, the government

stated that Paul Gunderson and Hagen used

drivers (including Fearing, Bjorkman and

Dennis Gunderson) to obtain loads of

marijuana which averaged 100 pounds from

Arizona, and to deliver them to Hagen or
Paul Gunderson’s residences in Minnesota.

The government also stated that after he

fell out with Paul Gunderson, Hagen

continued this practice, using Fearing

and other couriers. The government made

reference to various specific trips and

drug quantities. Hagen, Paul Gunderson,

and Fearing agreed completely with the

government’s proffer. Dennis Gunderson

challenged the proffer only by pointing

out that he had ended his involvement in

the conspiracy in December of 1997. The

government put forward a similar factual

basis at Bjorkman’s plea hearing, and

while Bjorkman did not admit to all of

the government’s quantity calculations,

he admitted that he was responsible for

participating in several marijuana

delivery trips which involved quantities

of 40 pounds, 85-100 pounds, and further

indeterminate amounts. Bjorkman further

admitted that he couldn’t disagree if the

government suggested that it could prove

the number of pounds involved by a

preponderance of the evidence. At no

point prior to this appeal did any of the

defendants challenge the position that

the mandatory minimum sentence for the

offense of conviction was 5 years, or

that the maximum sentence was 40 years. 

 After applying various guideline

enhancements, the district court

sentenced the appellants to prison terms

ranging from 105 to 155 months in prison

plus 5 years of supervised release for

each, and imposed a $40,000 fine plus

criminal forfeiture on Hagen. The

appellants’ appeal their sentences,

raising two joint issues together with

various individual issues. We find some

of these issues meritless and do not

discuss them. For those issues that we do

address, we include a discussion of the

facts necessary for their resolution.

DISCUSSION

 A. Apprendi issue 

 Defendants were indicted and pled guilty

before the Supreme Court decided Apprendi

v. New Jersey, 530 U.S. 466 (2000).

Neither the indictment nor the guilty

pleas mentioned any specific quantity of

marijuana, and defendants did not ask the

district judge to ascertain that quantity

using the reasonable-doubt standard. Our

review therefore is limited to a search

for plain error. See United States v.
Nance, 236 F.3d 820 (7th Cir. 2000).

Defendants do not seriously deny that, if

the district judge had used the

reasonable-doubt standard, he would have

concluded that they conspired to

distribute more than 100 kilograms of

marijuana (or more than 100 marijuana

plants), a quantity that exposed each to

a maximum of 40 years’ imprisonment--

exactly as each plea agreement recited.

See 21 U.S.C. sec. 841(b)(1)(B)(vii). In

an effort to avoid this conclusion,

defendants contend that after Apprendi

drug quantity is an "element" of the

offense established by sec.841 and that

omission of this element means that the

district court lacked jurisdiction--which

would lead to reversal of the convictions

and dismissal of the indictment without

regard to the plain-error standard. To

employ defendants’ approach we would have

to overrule not only Nance (which adopted

the plain-error standard for review of

forfeited Apprendi arguments) but also

United States v. Brough, 243 F.3d 1078

(7th Cir. 2001), which held that drug

quantity is not an element of sec.841 in

the technical sense. Neither case is ripe

for overruling; nor are we attracted to

defendants’ position as an original

matter.

 According to defendants, an indictment

that does not mention an element of the

offense does not confer subject- matter

jurisdiction on the district court. That

view is refuted by 18 U.S.C. sec. 3231,

which creates jurisdiction to try charges

framed by federal indictments. We held in

United States v. Martin, 147 F.3d 529,

531-33 (7th Cir. 1998), and have repeated

since, that district judges always have

subject-matter jurisdiction based on any

indictment purporting to charge a

violation of federal criminal law. E.g.,

Hugi v. United States, 164 F.3d 378, 380

(7th Cir. 1999). Whether a particular

indictment is proper is a question that

the judge may decide under the authority

conferred by sec.3231. Just as a civil

plaintiff’s failure to prove his

allegations--or deficiencies that make

the complaint dismissible under Fed. R.

Civ. P. 12(b)(6)--do not deprive a court

ofjurisdiction under 28 U.S.C. sec. 1331

or sec. 1332 unless the complaint is

frivolous, see Crowley Cutlery Co. v.

United States, 849 F.2d 273 (7th Cir.

1988), so errors in a non-frivolous

indictment do not strip the district
court of jurisdiction under sec.3231.

 This is why the Supreme Court held in

Johnson v. United States, 520 U.S. 461

(1997), that a conviction may be affirmed

on plain-error analysis if the charge

omits an element and the defendants do

not object before or at trial. Neder v.

United States, 527 U.S. 1, 8-15 (1999),

adds that, even if the defendants do

object, the omission of an element may be

deemed harmless under the usual

harmless-error analysis. Neither Johnson

nor Neder could have been handled that

way if the omission of an element

deprives the district court of

jurisdiction (or is a "structural" error

that cannot be rectified); then the

convictions in both cases should have

been vacated rather than affirmed.

 Two appellate courts have asserted that

Apprendi problems affect the district

court’s "jurisdiction" to try a charge or

impose a particular penalty. See United

States v. Cotton, 261 F.3d 397 (4th Cir.

2001); United States v. Gonzalez, 259

F.3d 355 (5th Cir. 2001). These decisions

do not explain why the problem is

jurisdictional. They do not mention

sec.3231, Neder, Johnson, or Martin, so

none carries the power to persuade us to

abandon Nance. (Chief Judge Wilkinson’s

dissent in Cotton relied on Johnson; the

majority elected to ignore his arguments

rather than respond to them.) The only

court that has actually analyzed this

question has held that Apprendi problems

do not affect a district court’s

jurisdiction. See McCoy v. United States,

2001 U.S. App. Lexis 20900 (11th Cir.

Sept. 25, 2001). Other appellate courts

have held that omissions from indictments

affecting maximum punishment under

statutes other than sec.841 are not

jurisdictional in nature. See, e.g.,

United States v. Prentiss, 256 F.3d 971

(10th Cir. 2001) (en banc); United States

v. Mojica-Baez, 229 F.3d 292, 306-12 (1st

Cir. 2000); Prou v. United States, 199

F.3d 37, 42-46 (1st Cir. 1999); United

States v. Baucum, 80 F.3d 539, 543-44

(D.C. Cir. 1996). For the reasons covered

in Martin and similar opinions, these

decisions reach sound conclusions. There

is no jurisdictional problem in today’s

case.

 For that matter, we are not persuaded

that Brough should be overruled and the
quantity of drugs declared to be an

"element" of the offense under sec.841.

Brough holds that the elements of the

offense are stated in sec.841(a), and

that the considerations in sec.841(b),

which determine the minimum and maximum

penalties, are not elements. No one (in

this circuit anyway) disputes this

conclusion with respect to minimum

penalties established by sec.841(b). See,

e.g., United States v. Hill, 252 F.3d

919, 921-22 (7th Cir. 2001) (collecting

other decisions). Yet nothing in

sec.841(b) distinguishes minimum from

maximum penalties; if quantities that

determine minimum penalties are not

"elements," then quantities determining

maximum penalties cannot be "elements" of

the offense either.

 Before Apprendi this court repeatedly

held that drug types and quantities are

not "elements" of the offense established

by sec.841. See, e.g., United States v.

Edwards, 105 F.3d 1179 (7th Cir. 1997),

affirmed, 523 U.S. 511 (1998); United

States v. Richardson, 130 F.3d 765, 780

(7th Cir. 1997), vacated on other

grounds, 526 U.S. 813 (1999); United

States v. Jackson, 207 F.3d 910, 920-21

(7th Cir. 2000), remanded, 531 U.S. 953

(2000), decision on remand, 236 F.3d 886

(7th Cir. 2001). In Edwards the Supreme

Court endorsed our conclusion that the

judge, rather than the jury, determines

the types and quantities of drugs in

prosecutions under sec.841; this holding

is incompatible with a characterization

of drug type and quantity as elements of

the offense.

 Since Edwards the Supreme Court has

added, in Apprendi, that the Due Process

Clause entitles defendants to decision by

the trier of fact, on the

reasonable-doubt standard, of any fact

(other than a prior conviction) that

increases the statutory maximum penalty.

530 U.S. at 490. A case coming from a

state prosecution, Apprendi did not

address the "elements" of sec.841 or any

other federal offense and had nothing to

do with the contents of the indictment.

See 530 U.S. at 477 n.3 (disclaiming any

reliance on, or interpretation of, the

Fifth Amendment’s Indictment Clause).

What Apprendi held--and, we concluded in

Brough, all that Apprendi holds--is that

the Due Process Clause requires the trier

of fact to apply the reasonable-doubt
standard. Apprendi does not rewrite or

change the elements of any federal

offense; it does, however, determine who

must make particular decisions, and what

the burden of persuasion must be.

Apprendi strongly affects how sec.841 is

implemented; as we concluded in Nance and

[United States v.] Westmoreland, [240

F.3d 618, 631-33 (7th Cir. 2001)] a

post-Apprendi indictment should specify,

and the trier of fact must be instructed

to determine, not only the elements of

the offense, which appear in sec.841(a),

but also the events listed in sec.841(b)

on which the prosecutor relies to

establish the maximum sentence.

Brough, 243 F.3d at 1080 (emphasis in

original). This is what other panels of

our court have meant in referring to drug

type and quantity loosely as elements:

this word conveys the thought that drug

type and quantity must be marked as a

subject for the trier of fact under a

reasonable- doubt standard. See, e.g.,

United States v. Watts, 256 F.3d 630, 631

n.2 (7th Cir. 2001); United States v.

Robinson, 250 F.3d 527, 529 (7th Cir.

2001); United States v. Mietus, 237 F.3d

866, 874 (7th Cir. 2001). But this is a

far cry from saying--which none of our

opinions has done--that without an

allegation of drug type and quantity in

the indictment, there is no offense at

all. That’s what real "element" status

means, and that status is one that we

have repeatedly rejected--not only in

Brough but also in Talbott v. Indiana,

226 F.3d 866, 869-70 (7th Cir. 2000),

Hernandez v. United States, 226 F.3d 839

(7th Cir. 2000), and many other cases.

Even the ninth circuit, which in United

States v. Buckland, 259 F.3d 1157 (9th

Cir. 2001), rehearing en banc granted,

2001 U.S. App. Lexis 20432 (Sept. 14,

2001), disagreed with Brough’s holding

that sec.841 as written is

constitutional, agreed with its

conclusion that drug type and quantity is

not an "element" of the sec.841 offense

in the strong sense.

 Thus we repeat what was said in Brough,

but now with emphasis: "a post-Apprendi

indictment should specify, and the trier

of fact must be instructed to determine,

not only the elements of the offense,

which appear in sec.841(a), but also the

events listed in sec.841(b) on which the
prosecutor relies to establish the

maximum sentence." In federal practice

the prosecutor and court put an issue

before the jury by including it in the

indictment; thus the "should" clause in

Brough and many other of this court’s

opinions. But only the "must" clause is a

constitutional imperative after Apprendi.

If the indictment does not include type

or quantity, and the defendant does not

object, then review is for plain error

under Nance, and not for any different

standard (such as lack of jurisdiction or

failure to state an offense).

 Defendants failed to object to this

indictment in the district court and thus

waived all contentions that could have

been presented before trial--including

any objections to the indictment other

than failure to state an offense. See Fed.

R. Crim. P. 12(b)(2), (f). By pleading

guilty they did not waive the requirement

of Apprendi that drug type and quantity

be determined by the trier of fact beyond

a reasonable doubt (to the extent they

affect the statutory maximum), for

sentencing came after the plea. But at

sentencing these defendants did not make

an Apprendi-like argument and thus

forfeited it, restricting our review to a

search for plain error. None of the

defendants even asserts that he was

responsible for less than 100 kilograms

of marijuana, so, as we concluded at the

beginning of this section, no injustice

has been done and the requirements

forreversal on plain-error review have

not been met. See United States v. Olano,

507 U.S. 725 (1993).

 B. Paul Gunderson/Hagen Issue 

 Paul Gunderson (Gunderson) and Hagen

challenge the enhancement of their

sentences under U.S.S.G. sec.

2D1.1(b)(1). That section provides for a

two-level increase in a defendant’s base

offense level if a dangerous weapon was

possessed in connection with a drug

offense. In applying sec. 2D1.1(b)(1), we

have repeatedly held that "the Government

bears the initial burden of demonstrating

that the defendant possessed a weapon in

a place where drugs were present," and

that "once the Government meets its

burden, the defendant must demonstrate

that it was clearly improbable that the

weapon was connected to the offense."

United States v. Booker, 248 F.3d 683,
689 (7th Cir. 2001). See also United

States v. Tyler, 125 F.3d 1119, 1122 (7th

Cir. 1997). Gunderson and Hagen argue

that in so holding we have impermissibly

placed upon the defendant the burden to

disprove an aggravating sentencing

factor, in violation of due process. 

 Unfortunately for Gunderson and Hagen,

we have already rejected this argument.

See United States v. Durrive, 902 F.2d

1221, 1230-31 (7th Cir. 1990). Gunderson

and Hagen argue that their argument was

not "squarely presented" in Durrive.

However, in Durrive we characterized the

defendant’s argument as "implying that

section 2D1.1(b)(1) is unconstitutional

because [it] improperly places the burden

on the defendant to show that the

sentencing court should not apply the

enhancement provision," in violation of

due process. In rejecting this argument,

we cited cases from other circuits which

squarely addressed and rejected the very

argument that Gunderson and Hagen raise. 

See United States v. Restrepo, 884 F.2d

1294, 1296 (9th Cir. 1989); United States

v. McGhee, 882 F.2d 1095, 1097-99 (6th

Cir. 1989). Moreover, we noted that

Application Note 3 to sec. 2D1.1(b)(1)

(which provides that "[t]he [upward]

adjustment should be applied if the

weapon was present, unless it is clearly

improbable that the weapon was connected

with the offense") merely sets forth an

"exception" to sec. 2D1.1(b)(1), and we

cited Restrepo for the proposition that

the government need only prove that the

weapon was "possessed" during the

offense, and not that it was connected to

the offense. See Durrive, 902 F.2d at

1232. 

 We see no reason to depart from these

conclusions. Under sec. 3B1.1, the

government bears the burden to prove an

aggravating circumstance--that the

defendant possessed a weapon in a place

where drugs were present. Once it has

done so, the enhancement may (indeed

must) be applied, and it is proper to

require the defendant to bear the burden

of proving the exception recognized in

Application Note 3 in order to avoid the

application of an otherwise properly

supported enhancement. This conclusion is

consistent with the language of

Application Note 3, with due

processprinciples, and with the holdings

of the majority of circuits that have
addressed the issue. See United States v.

Hall, 46 F.3d 62, 63 (11th Cir. 1995);

United States v. Ortiz-Granados, 12 F.3d

39, 41 (5th Cir. 1994); United States v.

Roberts, 980 F.2d 645, 647 (10th Cir.

1992); United States v. Corcimiglia, 967

F.2d 724, 727-28 (1st Cir. 1992);

Restrepo, 884 F.2d at 1296; McGhee, 882

F.2d at 1097-99. But see United States v.

Khang, 904 F.2d 1219, 1221-24 (8th Cir.

1990) (holding that the government bears

the burden under sec. 2D1.1(b)(1) to show

that the weapon was connected to the

offense); United States v. Price, 13 F.3d

711, 733 (3d Cir. 1994) (assuming without

analysis that the government bears the

burden under sec. 2D1.1(b)(1) to

demonstrate that it was not clearly

improbable that the defendant’s gun was

possessed in furtherance of the aims of

the charged conspiracy). 

 Gunderson and Hagen argue in the

alternative that they have met their

burden to show that it was clearly

improbable that the weapons discovered at

their residences were connected to the

offense. Because the district

court’sconclusion to the contrary is a

factual determination, we review it for

clear error. See United States v. Cain,

155 F.3d 840, 843 (7th Cir. 1998). 

 We find their argument meritless. In

searching Hagen’s basement (a location

where marijuana had been delivered and

divided), police found $122,640 in cash,

a scale, two handguns, and a clip loaded

with hollow-point bullets. Money was

found in a safe together with the

handguns. Hagen provided affidavits of

two individuals who claimed that they,

not Hagen, owned the guns, and that they

had stored them at Hagen’s residence. One

of the affiants averred that he left the

guns at Hagen’s residence one week before

they were seized. Another stated that he

never saw Hagen touch the gun that he

left at his residence, and that he was

not aware that it was used for illegal

activities. However, the district court

was not required to credit these

affidavits. In addition, even if it is

true that some or all of the guns were

left at Hagen’s residence only one week

before the search, this would not prove

that it is "clearly improbable" that they

were connected to the offense. The

charged offense was conspiracy, and the

conspiracy was ongoing one week before
the search warrant was executed. Further,

Hagen has not presented any evidence

suggesting that he withdrew from the

conspiracy prior to that time. Given that

the guns were found in a residence where

drugs were delivered and handled, that

they were found in close proximity to the

proceeds from the crime, and that drug

paraphernalia was also found in the

house, the court did not clearly err in

awarding the sec. 2D1.1(b)(1) enhancement

to Hagen. See United States v. Brack, 188

F.3d 748, 763 (7th Cir. 1999) (affirming

a sec. 2D1.1(b)(1) enhancement for a

defendant where guns were found at a

"stash house" to which the defendant had

access, even accepting defendant’s claim

that he was merely storing the guns at a

co-conspirator’s request); United States

v. Grimm, 170 F.3d 760, 767 (ruling that

"guns found in close proximity to illegal

drugs are presumptively considered to

have been used in connection with the

drug trafficking offense"); United States

v. Johnson, 227 F.3d 807, 814 (ruling

that "the proximity of a weapon to drug

proceeds provides a sufficient nexus to

conclude that it was not clearly

improbable that the gun was connected

with the offense.") (citation and

internal quotation omitted); United

States v. Cashman, 216 F.3d 582, 588 (7th

Cir. 2000) (affirming enhancement under

sec. 2D1.1(b)(1) where a gun was found in

a motor home together with a scale and

other drug paraphernalia). 

 For similar reasons, we also uphold the

district court’s application of the sec.

2D1.1(b)(1) enhancement to Gunderson. The

search of Gunderson’s residence (where

marijuana was delivered and repackaged),

uncovered ten one-pound bags of marijuana

and a number of firearms. The only

firearm which was not found in a gun

locker was a shotgun which Gunderson’s

wife testified belonged to another

individual who used it for skeet

shooting. Nevertheless, because the guns

were found in a "stash house" in

proximity to marijuana, the district

court did not commit clear error when it

found that it was not clearly improbable

that these weapons were possessed in

connection with the marijuana conspiracy.

 C. Fearing Issue

 Fearing challenges the district court’s

enhancement of his sentence under
U.S.S.G. sec. 3B1.1(c) for being a

manager or supervisor. Fearing occupied a

relatively low position in the charged

conspiracy. He was primarily a driver who

retrieved marijuana for Gunderson and

Hagen in Arizona and delivered it to

their respective homes in Minnesota. He

was also held at various times by

marijuana suppliers in Arizona as "human

collateral." At one point, Fearing moved

to Arizona, where he continued to act as

a courier for Gunderson. After the

falling out between Gunderson and Hagen

in 1997, Fearing continued to act as a

courier, this time for Hagen. 

 In November of 1997, Fearing began a

marijuana operation of his own, which he

ran without the involvement of any of the

principals of the charged conspiracy.

Fearing’s marijuana operation consisted

of four occasions when Fearing provided

financial backing and marijuana contacts

to Wade Stafne for the transportation of

marijuana from Arizona for distribution

in Minnesota. While the PSR characterized

this as "[Fearing’s] own marijuana

operation," it concluded that it was part

of a "common scheme or plan" and part of

the "same course of conduct" as the

offense of conviction. Accordingly,

because Fearing had supervised Stafne in

this peripheral yet related marijuana

operation, the PSR recommended a twopoint increase in his base offense level

under U.S.S.G. sec. 3B1.1(c) for his

"role in the offense as an organizer,

supervisor, or manager." 

 Fearing’s counsel filed objections to

the PSR’s recommendation, contending that

Fearing and Stafne were equal partners in

their drug operation (i.e., that Fearing

did not "supervise" Stafne), and that it

was inappropriate for the court to apply

the sec. 3B1.1 adjustment in any event

since Fearing’s alleged managerial role

occurred outside of the conspiracy for

which he was charged and convicted. At

Fearing’s sentencing hearing, his counsel

expressly abandoned the first of these

arguments, conceding that Fearing played

a managerial role vis-a-vis Stafne in the

separate marijuana operation, but he

renewed his argument that sec. 3B1.1

should not apply because Fearing did not

play a managerial role in the offense of

conviction. The district court adopted

the factual assertions of the PSR

regarding Fearing’s supervision of
Stafne, and applied the two-level

increase under sec. 3B1.1(c) on that

basis, finding that Fearing "used Mr.

Stafne from time to time, providing him

money as well as contacts," and

"manag[ing] the way in which these trips

would be conducted." 

 Fearing maintains that the district

court erred in applying the sec. 3B1.1

adjustment, essentially repeating the

argument that he made before the district

court. He concedes that sec. 3B1.1

authorizes a district court to consider

all relevant conduct when determining a

defendant’s role in the offense under

that section. However, he argues that a

court may consider relevant conduct for

this purpose only insofar as it sheds

light on the defendant’s role in the

offense of conviction. In other words,

Fearing contends that a court may not

simply import a defendant’s managerial

role in other relevant conduct to the

offense of conviction (or conclude that

he played a managerial role in the

offense of conviction merely because he

played such a role solely in other

relevant conduct which is independent

from the offense of conviction). Fearing

notes that the expressed purpose of sec.

3B1.1 is to assess a defendant’s

responsibility for the offense relative

to others involved in the offense, and he

maintains that applying the enhancement

strictly on the basis of a defendant’s

role in other relevant conduct leads to

inequitable results which contravene this

purpose. (For example, in this case,

Fearing--who was merely a driver in the

Hendricks/Hagen drug conspiracy--received

a two-level enhancement under sec. 3B1.1,

while Hendricks--a principal in the

conspiracy--did not receive an

enhancement.) Consequently, Fearing urges

us to hold that evidence of a defendant’s

role in other relevant conduct supports

an enhancement under sec. 3B1.1 only when

that conduct is closely associated with

(or "anchored to") the offense of

conviction such that the defendant’s role

in the relevant conduct demonstrates a

greater relative responsibility for the

offense of conviction. Because Fearing’s

supervision of Stafne in the independent

drug operation did not meet this

standard, Fearing asks us to vacate his

sentence and to remand for resentencing.

 We are not persuaded. We review a
district court’s finding that an

enhancement under sec. 3B1.1 is warranted

for clear error. See United States v.

Billingsley, 115 F.3d 458, 464 (7th Cir.

1997). However, because Fearing has not

challenged any of the factual findings

which the district court made in support

of its decision to apply the enhancement,

and because his appeal is essentially an

objection to the district court’s

interpretation and application of sec.

3B1.1(c), our review is de novo. See

United States v. Johnson, 227 F.3d 807,

812 (7th Cir. 2000).

 Section 3B1.1 provides for an increase

in a defendant’s offense level based upon

his role in the "offense." The Sentencing

Guidelines define "offense" as the

offense of conviction plus all relevant

conduct. See U.S.S.G. sec. 1B1.1,

Application Note 1(l). The text of sec.

3B1.1 reinforces this definition of

"offense" by stating, in the Introductory

Commentary to Part B, that "[t]he

determination of a defendant’s role in

the offense is to be made on the basis of

all conduct within the scope of sec.

1B1.3 (Relevant Conduct), i.e., all

conduct included under sec. 1B1.3(a)(1)-

(4), and not solely on the basis of the

elements and acts cited in the count of

conviction." U.S.S.G. Ch. 3, Part B,

Introductory Commentary. See also United

States v. Baker, 227 F.3d 955, 966 (7th

Cir. 2000). For offenses of a character

for which sec. 3D1.2(d) would require

grouping of multiple counts (such as the

offense of conviction in Fearing’s case),

"relevant conduct" includes all acts or

omissions that are part of the "same

course of conduct" or "common scheme or

plan" as the offense of conviction,

regardless of whether the defendant was

charged with or convicted of carrying out

those acts. See U.S.S.G. sec.

1B1.3(a)(2); United States v. Mumford, 25

F.3d 461, 465 (7th Cir. 1994); United

States v. Rivera, 6 F.3d 431, 445 (7th

Cir. 1993). Pursuant to this provision,

the PSR characterized Fearing’s separate

drug operation as "relevant conduct," and

recommended the sec. 3B1.1 enhancement

based upon his supervision of Stafne in

that operation. 

 Fearing’s own response to the PSR and to

the government’s position on this issue

has doomed his argument. Fearing’s

counsel did not dispute that his drug
operation was "relevant conduct," and he

expressly conceded that his direction of

Stafne was the kind of activity that

would qualify as "management" or

"supervision" under sec. 3B1.1. Moreover,

Fearing has not argued on appeal that the

district court erred in finding that his

drug operation with Stafne was relevant

conduct or in holding him responsible for

the drug amounts involved in that

operation. Given this, his challenge to

the application of the enhancement cannot

stand. By conceding that he played a

managerial role in relevant conduct,

Fearing conceded that he played a

managerial role in the "offense" as

contemplated by sec. 3B1.1. Therefore, he

conceded the applicability of the

enhancement. Cf. United States v. FloresSandoval, 94 F.3d 346, 349-50 (7th Cir.

1996). 

 Fearing’s contention that a defendant

cannot receive an enhancement under sec.

3B1.1 strictly for performing a

managerial role in relevant conduct (as

opposed to the offense of conviction)

contradicts the plain language of sec.

3B1.1, and has been rejected by each of

the circuits which have addressed the

question. For example, in United States

v. Ocana, 204 F.3d 585, 591-92 (5th Cir.

2000), the court affirmed an upward

adjustment of the defendant’s sentence

under sec. 3B1.1 based upon her

managerial role in conduct which occurred

after she was convicted of the drug

conspiracy offense of conviction.

Subsequent to her conviction for

conspiracy to possess with intent to

distribute marijuana, the defendant had

recruited and hired others to transport

marijuana to Florida. The court found the

subsequent conduct to be part of the

"same course of conduct" under sec. 1B1.3

(and therefore "relevant conduct")

because it occurred regularly and within

7 months of the offense ofconviction, and

it therefore affirmed the sec. 3B1.1

enhancement based upon her role in the

subsequent conduct even though it

involved different couriers, different

drug sources, and a different modus

operandi. The court ruled that conduct

which is the basis for an upward

adjustment under sec. 3B1.1 must be

"anchored to the transaction," but it

defined "transaction" broadly as

including the post-conviction relevant

conduct at issue. See also United States
v. Ushery, 968 F.2d 575, 582 (6th Cir.

1992) (ruling that a defendant’s

leadership role in a drug enterprise

which was relevant conduct to the cocaine

conspiracy of which he was convicted

"mandated a two-point role in the offense

enhancement under U.S.S.G. sec. 3B1.1 ").

Cf. United States v. Lewis, 79 F.3d 688,

691-92 (7th Cir. 1996); United States v.

Rosnow, 9 F.3d 728, 730-31 (8th Cir.

1993); United States v. Lillard, 929 F.2d

500, 502-03 (9th Cir. 1991). 

 In addition, we reject Fearing’s

contention that the expressed purpose of

sec. 3B1.1 requires a different

result.Fearing correctly notes that the

purpose of sec. 3B1.1 is to assign

punishment to defendants based upon their

relative degree of responsibility for the

"offense." However, this proposition aids

Fearing’s argument only if the term

"offense" is construed narrowly as

denoting only the offense of conviction,

not including relevant conduct. Since we

have rejected this construction of

"offense," we must also reject Fearing’s

derivative argument from sec. 3B1.1’s

purpose. Because Fearing had a greater

degree of responsibility than at least

one other participant (Stafne) in an

episode of concededly relevant conduct,

he had greater relative responsibility in

the "offense" as contemplated by sec.

3B1.1. Therefore, the application of the

enhancement was entirely consistent with

sec. 3B1.1’s overarching purpose./1 

 One final point regarding Fearing’s

claim bears mentioning. It is true that a

defendant’s leadership role in

"collateral conduct" will not justify an

enhancement under sec. 3B1.1. See United

States v. Sutera, 933 F.2d 641, 649 (8th

Cir. 1991). However, "relevant conduct"

by definition is not "collateral

conduct." Unfortunately for Fearing,

relevant conduct for the particular

offense of which he was convicted is

defined quite broadly to include not

merely acts committed in furtherance of

the crime, but also acts which merely

bear a certain similarity to the crime

(i.e., acts that are part of the "same

course of conduct" as the offense of

conviction). Nevertheless, not all

criminal conduct will satisfy this

criterion, and the government bears the

burden of proving that the conduct at

issue is relevant conduct and not purely

collateral to the offense. To the extent
that the drug trips which Stafne made for

Fearing were part of a truly separate and

independent conspiracy, they might not

fit the definition of "relevant conduct"

under sec.1B1.3(a)(2)./2 However,

Fearing has waived this argument by

conceding before the district court that

his drug operation with Stafne was

relevant conduct and that the drug

amounts from those trips should be

included in his relevant conduct

calculation, see United States v. Scanga,

225 F.3d 780, 783-84 (7th Cir. 2000);

Flores-Sandoval, 94 F.3d at 349-50, and

by not raising the issue on appeal. 

 D. Bjorkman Issue

 Bjorkman argues that the district court

abused its discretion in denying his

request for substitute counsel. On April

14, 1999, the district court appointed

attorney Jack C. Hoag to represent

Bjorkman, commencing what turned out to

be a less than ideal attorney-client

relationship. After a superceding

indictment was filed and Bjorkman’s trial

date was set for June 28, 1999, Hoag

filed an ex parte motion for leave to

withdraw as Bjorkman’s counsel. In the

motion and in a supporting affidavit,

Hoag stated that he had insufficient time

to prepare for the pending trial and that

he had not yet received "a substantial

amount of information" which he needed to

prepare Bjorkman’s defense. As additional

grounds for the motion, Hoag referred to

Bjorkman’s non-cooperation (including his

refusal to comply with requests on a

number of occasions), and to a "variety

of ethical concerns" which he did not

concretely identify or describe, but

which he claimed "could significantly

impair [his] ability to prepare and

defend Mr. Bjorkman." The court took no

action on this motion.

 Four days after Hoag filed the motion,

Bjorkman signed a plea agreement. During

the plea hearing, the court twice asked

Bjorkman whether he was "fully satisfied

with the counsel, representation, and

advice given to you by Mr. Hoag as your

attorney in this matter." Both times,

Bjorkman answered "yes." In addition, the

court informed Bjorkman that the

statutory minimum sentence for the

charged offense was 5 years and the

maximum was 40 years, based on a weight

of marijuana that was more than 100 but
less than 1000 kilograms. Neither the

parties nor the court indicated a

probable guideline range, and the court

informed Bjorkman that only the court

would calculate his sentence under the

guidelines and that it would do so only

after the PSR had been completed and both

sides had an opportunity to comment on

it. The court cautioned Bjorkman not to

rely on the possibility of receiving any

particular sentence, reminding him that

"any guideline computation discussions

that your attorney may have had are not

part of the plea agreement." Bjorkman

indicated that he understood each of

these facts. Also, the court asked

Bjorkman whether he believed that the

plea agreement represented the "entire,

full and complete . . . agreement that

you have with the United States." After

Bjorkman responded affirmatively, the

court asked him if anyone had made "any

other different promise or assurance to

you of any kind in an effort to induce

you to enter a plea of guilty in this

matter." Bjorkman said "no." After

hearing the government’s factual proffer

in support of Bjorkman’s guilty plea, the

court accepted and entered the plea, set

a sentencing date for August 25, 1999,

and ordered preparation of the PSR by

July 26. 

 On July 30, 1999, Bjorkman wrote a

letter to the court requesting substitute

counsel. In the letter, Bjorkman

complained that Hoag had "withheld

valuable information" from him in

connection with the plea agreement by

erroneously advising him that he would be

classified as a career offender and

sentenced under the career offender

guidelines. Bjorkman maintained that

"[t]his information had a direct baring

[sic] on my guilty plea." Bjorkman

claimed to have discovered the inaccuracy

of Hoag’s advice while speaking with the

probation officer after the PSR was

prepared. Bjorkman further complained

that Hoag had "ceased all contact" with

him and not made himself available for

consultation after the entry of the

guilty plea. (Bjorkman stated that before

the guilty plea, he and Hoag had had "a

minimum of weekly contact.") Neither the

court nor Hoag took any action on

Bjorkman’s request until the August 25,

1999 sentencing hearing. 

 At the sentencing hearing, the court
asked Bjorkman if he had read the PSR,

the addendum, and the related documents,

including objections to the PSR which

Hoag had filed on Bjorkman’s behalf on

August 6, 1999. Bjorkman responded that

he had read these documents, but had not

discussed them with his attorney. At this

point, Hoag reminded the court of

Bjorkman’s letter requesting substitute

counsel, and the court immediately

convened an ex parte hearing to consider

Bjorkman’s request. During the hearing,

Hoag stated that his communication with

Bjorkman was "virtually nonexistent at

this point," and opined that Bjorkman

would be better served with a new

counsel, "to explore a variety of options

for him." Hoag urged the court to appoint

new counsel "given the communication

between the parties." The court turned to

Bjorkman and asked him for "those

comments which you wish to make." In

response, Bjorkman simply repeated that

he would like a new attorney. The court

retorted that "you don’t change attorneys

like you do socks, Mr. Bjorkman." The

court then indicated that it had received

Bjorkman’s letter of July 30, and

summarized the concerns that Bjorkman had

expressed in the letter regarding Hoag’s

unavailability after the guilty plea and

his "withholding of valuable

information." The court rejected the

former concern, concluding that Hoag’s

preparation of objections to the PSR

evidenced that Bjorkman and Hoag must

have had some extended communications

after the guilty plea. Moreover, the

court dismissed Bjorkman’s claim that he

entered his guilty plea without full

knowledge of his potential exposure under

the guidelines, reminding Bjorkman that

the court told him during the plea

hearing that the applicable guideline

range could not be determined until after

the PSR was prepared, and that he should

not rely on his attorney’s guideline

calculations in entering the plea. The

court then stated that Bjorkman’s request

was denied. 

 Bjorkman immediately objected, and the

court initially responded that Bjorkman

had not given it any additional reasons

to grant the request, and that he had

remained silent when the court asked for

his input. Nevertheless, the court then

allowed Bjorkman to air further

grievances about Hoag. Bjorkman

complained of a litany of claimed errors
and shortcomings on Hoag’s part. For

example, Bjorkman claimed that Hoag had

done no work on the case, had constantly

implored him to plead guilty (threatening

to withdraw if he insisted on going to

trial), and had wanted Bjorkman to agree

to marijuana amounts that Bjorkman did

not think were accurate, assuring him

that the amounts would not effect his

exposure. Bjorkman concluded by saying "I

want a new attorney. It’s up to my new

attorney to decide if I can change my

plea or not. I don’t know. I’m not--I’m

not saying I want to change my plea. That

would be up to my new attorney."

Repeating its conclusion that Bjorkman

was adequately warned that any guideline

calculations made by the parties before

the entry of the plea were not part of

the plea agreement, the court denied

Bjorkman’s request for substitute

counsel. 

 The court then granted a temporary

recess, and ordered Bjorkman and Hoag to

discuss the PSR and the related materials

and to inform the court when they were

ready to proceed. The court proclaimed

that, in any event, the sentencing

hearing would take place that afternoon.

Bjorkman and Hoag conferred for

approximately 35 minutes, after which the

sentencing hearing was reconvened.

Bjorkman informed the court that he had

read all of the sentencing documents and

discussed them with Hoag. Hoag then

outlined the arguments that he planned to

make on Bjorkman’s behalf, including

objections to the PSR’s calculations as

to drug amounts included as relevant

conduct, and various other arguments.

Bjorkman acknowledged that he understood

these challenges and indicated that there

were no others that he wished to raise

aside from those outlined in his written

objections to the PSR. A full sentencing

hearing was then conducted, during which

the government put on three witnesses,

and Bjorkman and his wife testified on

his behalf.

 If the defendant has been given an

opportunity to explain to the court the

reasons behind his request for substitute

counsel, we review the denial of that

request only for an abuse of discretion.

See United States v. Golden, 102 F.3d

936, 940 (7th Cir. 1996). Here, the

district court conducted an ex parte

hearing to address Bjorkman’s concerns
regarding Hoag, during which Bjorkman was

given an opportunity to discuss each of

his reasons for seeking substitute

counsel. See id. at 940-41. Therefore,

our review is for abuse of discretion.

 In determining whether the district

court abused its discretion in denying a

motion for substitute counsel, we

consider the following three nonexhaustive factors: (1) the timeliness of

the motion; (2) the adequacy of the

court’s inquiry into the defendant’s

motion; (3) whether the conflict was so

great that it resulted in a total lack of

communication preventing an adequate

defense. See id. at 941; United States v.

Zillges, 978 F.2d 369, 372 (7th Cir.

1992). If we find an abuse of discretion,

we will nevertheless uphold the district

court’s decision unless the defendant

establishes that he was deprived of his

Sixth Amendment right to effective

assistance of counsel. See Zillges, 978

F.2d at 372-73. Bjorkman sent a letter to

the court requesting substitute counsel

after he pled guilty, approximately three

weeks before the scheduled sentencing

hearing. We have held that a defendant’s

request for substitute counsel was

untimely where the court received the

defendant’s letter after the defendant

had formally pled guilty and ten days

before the sentencing hearing. See United

States v. Hall, 35 F.3d 310, 313-14 (7th

Cir. 1994) (affirming the district

court’s finding that "[the defendant’s]

efforts here appear to the court to be an

effort to derail the sentencing that was

fast approaching at the time he sent this

letter."). Bjorkman’s case is somewhat

distinguishable from Hall, however, in

that the asserted grounds for Bjorkman’s

request concerned conduct by his attorney

which either occurred after the plea

hearing or which (he argues) could not

reasonably have been discovered before

the PSR was completed, and he made his

request immediately after reviewing the

newly composed PSR. Nevertheless, it is

not clear whether these facts will

suffice to make Bjorkman’s request for

substitution of counsel timely, given

that we have never found such a request

timely when it was made after the entry

of a guilty plea and shortly before

sentencing, and given that we rejected

Hall’s request as untimely when at least

one of his grievances involved the manner

in which the PSR was prepared. See Hall,
35 F.3d at 312-14. 

 However, we need not decide this close

question, because even if we were to find

Bjorkman’s request timely, a

consideration of the remaining two

factors convinces us that the district

court did not abuse its discretion in

denying it. First, the district court’s

inquiry into Bjorkman’s motion was

adequate. Before conducting a hearing on

the matter, the district court had

received and read Bjorkman’s letter which

expressed his grievances concerning Hoag

in some detail. Thus even without the

hearing the court may well have been

sufficiently apprised of the nature of

Bjorkman’s complaints to rule on his

request. See Hall, 35 F.3d at 313.

Regardless, the ex parte hearing removes

any doubt on the matter. After hearing

Hoag’s views on the issue, the court

asked Bjorkman for "those comments which

you wish to make." Bjorkman initially

declined to add anything of substance,

but when he objected to the district

court’s initial denial of his request,

the court gave him another opportunity to

speak. Bjorkman then spoke at length,

fully expressing each of his concerns

regarding Hoag’s representation. The

court did not interrupt Bjorkman at any

point, and when he finished the court

asked him if had anything further to say,

proceeding to address the merits of

Bjorkman’s request only after Bjorkman

said that he did not. The court’s

subsequent analysis reveals that it

listened to Bjorkman’s concerns, and

responded thoughtfully and appropriately.

In short, the court "engage[d] in an

inquiry as to the reasons for the

defendant’s dissatisfaction with his

attorney," see Zillges, 978 F.2d at 372

(quotation and citation omitted), and it

did not merely seek either to "elicit a

general expression of satisfaction," see

id., or to dismiss the matter in a

conclusory fashion.

 In addition, the record supports the

district court’s conclusion that Bjorkman

and Hoag’s relationship had not

deteriorated to the point that there was

a "total lack of communication preventing

an adequate defense." See Hall, 35 F.3d

at 314. By the time of the ex parte

hearing, Hoag had prepared and filed

extensive objections to several of the

PSR’s sentencing recommendations. The
court quite reasonably took this as

strong evidence that, notwithstanding

their protestations to the contrary,

Bjorkman and Hoag were able to

communicate sufficiently to present an

adequate defense, even after the plea

hearing. Also, during the plea hearing,

Bjorkman stated under oath that he was

fully satisfied with Hoag’s

representation, belying his subsequent

claims that Hoag did nothing to prepare

from the start of the case. Finally,

after the court denied Bjorkman’s request

and ordered him to discuss the sentencing

documents with Hoag, Bjorkman apparently

had little difficulty communicating with

Hoag. The two discussed the documents and

returned to the courtroom, whereupon

Bjorkman stated that he had discussed the

documents with Hoag and assented to

Hoag’s characterization of the challenges

that he would be raising to the PSR. Hoag

proceeded to conduct a vigorous

sentencing presentation on Bjorkman’s

behalf, examining witnesses and crossexamining the government’s witnesses. See

United States v. Brown, 79 F.3d 1499,

1507 (7th Cir. 1996). Neither Hoag nor

Bjorkman complained further regarding

their claimed inability to communicate.

 Bjorkman asserts that none of this

matters, because the complaint that he

raised during the ex parte hearing had

nothing to do with Hoag’s ability to

conduct an adequate defense during the

sentencing phase; rather, he objected

that the bad advice that Hoag had given

him regarding the relative benefits of

pleading guilty versus going to

trialrendered Hoag unable to counsel him

effectively regarding the possibility of

withdrawing his guilty plea./3 Bjorkman

claimed that Hoag had told him that he

stood exposed to much higher penalties

than later suggested by the PSR, and that

he pleaded guilty to minimize losses

grossly overestimated by his attorney.

Bjorkman correctly notes that an

attorney’s errors in describing the

consequences of conviction might justify

the withdrawal of a guilty plea based

upon the erroneous advice. See United

States v. Teller, 762 F.2d 569, 578 (7th

Cir. 1985) (citing Hammond v. United

States, 528 F.2d 15, 18-19 (4th Cir.

1975) (holding that a defendant’s guilty

plea was involuntary where his counsel

erroneously advised him that if he did

not plead he could be sentenced to a
maximum 90-95 year sentence, when the law

actually prescribed a maximum of only 55

years)); Cooks v. United States, 461 F.2d

530, 532 (5th Cir. 1972) (vacating a

defendant’s plea based on his counsel’s

"patently erroneous" advice that if he

did not plead he would be subject to a

sentence six times more severe than the

law actually allowed). Further, Bjorkman

notes that a motion to withdraw his plea

would be based on the argument that Hoag

rendered ineffective assistance in

overstating his exposure, and therefore

that Hoag could not possibly provide

effective, conflict-free advice regarding

whether or not such a motion should be

made. Therefore, Bjorkman argues that

there was a conflict between he and Hoag

which interfered with his ability to

conduct a defense, wholly apart from

Hoag’s ability to mount a competent

challenge to the government’s sentencing

arguments. Under these circumstances,

Hoag argues that the district court

abused its discretion in denying his

request for a substitute counsel to help

him evaluate his options. 

 We are not persuaded. First, Bjorkman

did not move to vacate his plea, nor did

he even argue that he would not have pled

guilty if it were not for Hoag’s

erroneous advice. (Indeed, he did not

even tell the district court what Hoag

told him regarding his exposure; he

merely said that Hoag had erroneously

told him that he would be sentenced as a

career offender, and that this had a

"direct bearing" on his guilty plea).

Further, although he claimed that Hoag

misinformed him, Bjorkman did not claim

that Hoag had failed to render good-faith

advice regarding his exposure. Therefore,

based upon the information he presented

to the district court, Bjorkman could not

establish that he had a non-frivolous

claim for the withdrawal of his plea

based upon ineffective assistance of

counsel. See Bridgeman v. United States,

229 F.3d 589, 592 (7th Cir. 2000) (ruling

that "to demonstrate prejudice arising

from a guilty plea allegedly rendered

involuntary by counsel’s deficient

performance, a petitioner must establish

that counsel’s performance was

objectively unreasonable and that, but

for counsel’s erroneous advice, he would

not have pleaded guilty."); Gargano v.

United States, 852 F.2d 886, 891 (7th

Cir. 1998) (holding that defendant failed
to establish prejudice when he failed to

claim that he would have pleaded

differently and insisted on going to

trial but for his counsel’s bad advice);

United States v. Barnes, 83 F.3d 934,

939-40 (7th Cir. 1996) (holding that

counsel was not ineffective in advising

defendant about the consequences of

pleading guilty, despite failing to

recognize that the defendant would be

sentenced as a career offender under the

guidelines, where nothing in the trial

record proved that he did not undertake a

good-faith investigation of the facts

relevant to the defendant’s sentencing).

Moreover, regardless of what Hoag may

have told Bjorkman before the plea,

Bjorkman was told both in the plea

agreement and by the district court

during the plea colloquy that the

statutory maximum for the charged offense

was 40 years. The fact that Bjorkman

neither refused to enter his plea nor

voiced any objection when confronted with

this information precludes him from

arguing that he pled guilty in reliance

upon some alternative characterization of

his exposure given to him by his counsel.

Cf. United States v. Martinez, III, 169

F.3d 1049, 1053-54 (7th Cir. 1999);

United States v. Rice, 116 F.3d 267, 268-

69 (7th Cir. 1997); United States v.

Westcott, 159 F.3d 107, 112-114 (2d Cir.

1998). Further, in response to the

court’s questions during the plea

colloquy, Bjorkman indicated under oath

that he understood that his lawyer’s

guideline predictions were not part of

the plea agreement, and that the district

court (and only the district court) would

determine the applicable guideline range

after the PSR was prepared. While these

questions were meant to inform Bjorkman

of the consequences of pleading guilty

(as opposed to the consequences of being

convicted after going to trial), they

should have put him on notice of the fact

that predicting the guideline range under

which he would be sentenced is an

uncertain art, and that no guideline

prediction by his attorney was ironclad.

Cf. Barnes, 83 F.3d at 940. This

conclusion is reinforced by Bjorkman’s

statement under oath that no one had made

any promises or assurances to induce him

to plead guilty. Given the limited

information presented to it on this

issue, the district court did not abuse

its discretion in refusing to credit the

theory that Hoag’s error induced Bjorkman
to plead guilty, creating a conflict

which rendered Hoag incapable of

presenting an adequate defense.

Therefore, we affirm the court’s denial

of Bjorkman’s request. 

CONCLUSION

 We have considered the other arguments

raised by each of the appellants and find

them meritless. Therefore we AFFIRM the

appellants’ sentences, the denial of

Bjorkman’s motion for substitution of

counsel, and the fine imposed on Hagen.

FOOTNOTES

/1 We also reject Fearing’s contention that because

Hendricks--a "bigger fish" in the offense of

conviction--did not receive an enhancement under

sec. 3B1.1, it was inappropriate for Fearing to

have received one. We have ruled repeatedly that

if a court sentences a defendant in accordance

with the guidelines, "we will not disturb [the]

sentence because another defendant was treated

differently." United States v. McClinton, 135

F.3d 1178, 1192 (7th Cir. 1998).

/2 Without deciding the matter, we note that this

conclusion strikes us as rather unlikely, given

that this "independent" drug operation occurred

while the conspiracy of conviction was ongoing,

and that it involved two members of that conspiracy acquiring marijuana from the same drug sources and transporting it to the same location via

a similar modus operandi. Thus it fits the definition of "same course of conduct" more readily

than does the Ocana defendant’s post-conviction

conduct.

/3 Bjorkman also argues that Hoag rendered prejudicial ineffective assistance by failing to argue

that the weight of marijuana for which Bjorkman

was to be held responsible was an element of the

offense which must be alleged in the indictment,

and that a sentence may be imposed only for the

crime alleged in the indictment (and by failing

to press for a lower sentence given the omission

of this information from the indictment). However, as Bjorkman did not raise this argument

before the district court during the ex parte

hearing, we cannot address it here.