In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3964

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RALPH A. SCANGA,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 99-CR-74-C-01--Barbara B. Crabb, Judge.

Argued June 13, 2000--Decided August 21, 2000

 Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

 KANNE, Circuit Judge. Ralph Scanga pleaded

guilty to attempting to possess with intent to

distribute cocaine in violation of 21 U.S.C.

sec.sec. 846 and 841(a)(1). In this direct

criminal appeal challenging his sentence, Scanga

contends that the amount of cocaine he personally

used was miscalculated and thus the total

quantity for which he was held responsible for

distributing is incorrect. Alternatively, Scanga

argues that his attorney’s failure to object to

the alleged miscalculation of the personal use

amount constituted ineffective assistance of

counsel in violation of the Sixth Amendment. We

affirm. 

 In February 1999, Scanga met John Pickett and

began receiving packages of cocaine sent by John

Pickett’s brother Lee, who lived in California.

FBI agents received a tip in July 1999 that a

Federal Express package containing cocaine would

be sent to Scanga on the 14th of that month. The

agents procured a warrant and intercepted the

package, finding approximately .586 kilograms of

cocaine. After removing the cocaine and

reassembling the package, the agents sent the

package to Scanga, who was arrested after picking

it up.

 Scanga pleaded guilty to the charge of

attempting to possess cocaine with intent to
distribute and a presentence report (PSR) was

prepared. According to Scanga’s version of the

offense, which was attached to the PSR, he

received six shipments of cocaine from Lee

Pickett totaling just under three kilograms,

although the author of the PSR recorded the

number incorrectly as 2.39 kilograms. But in his

version of the offense, Scanga made two

statements regarding the percentage of this total

amount of cocaine that he personally used. First,

he states that his friend Dick Busse, whom Scanga

owed almost $10,000, moved in with him for five

weeks and that he and Busse "would smoke an ounce

to two ounces of cocaine per week during that

period of time." He then recounts, "I had close

to three kilos of cocaine sent to me of which I

sold approximately half. The rest I either used

or paid off debts with in order to continue

getting high myself." According to an interview

with John Pickett, however, Scanga received six

to eight packages from Lee Pickett in California,

and each package weighed approximately 20 ounces.

The author of the PSR noted that John Pickett’s

statements would place the amount of drugs

attributable to Mr. Scanga at 3.4 to 4.5

kilograms. John Pickett did not say how much of

the cocaine Scanga used, nor did any other

person, besides Scanga, provide information about

personal use. 

 The probation office initially recommended that

Scanga be held responsible for more than 3.5 but

less than 5 kilograms of cocaine. Although the

author of the PSR cited several sources of

information about the drug quantity but did not

specifically tie the calculation to any of them,

the author opined that Scanga’s own account put

him above 3.5 kilograms. This amount is based on

the 2.39 kilograms that the PSR author had

mistakenly thought Scanga reported in his

statement, plus .65 kilograms for two deliveries

that the PSR author believed Scanga had not

mentioned, minus the .2835 kilograms that Scanga

said he and Busse used during the five-week

period. As Scanga now recognizes, however, the

math is wrong, because 2.39 kilograms plus .65

kilograms yields just 2.965. In Scanga’s

objection to the PSR, he overlooked this math

error. Instead, Scanga contended that the amount

of drugs attributable to him should be reduced to

between 2.0 and 3.5 kilograms of cocaine because,

he alleged, (1) the PSR author twice-counted the

amount of one delivery, (2) included a delivery

for which Scanga had no involvement, and (3)

failed to give "credit" for the amount of cocaine

Scanga personally used. The probation office then

revised its calculation and, in an addendum to

the PSR, recommended that the least amount Scanga

received was 3.4 kilograms. Again, however, the

probation office recommended that Scanga
personally used only .2835 kilograms of this

total, which resulted in a final recommendation

of 3.1 kilograms, a figure within the range of

2.0 and 3.5 kilograms advocated by Scanga in his

objection to the PSR.

 Scanga did not object to the PSR addendum

either before or at the sentencing hearing. With

respect to the guideline range, Scanga’s counsel

requested that the district court sentence Scanga

in the low end of the range because, "with

respect to relevant conduct, he was using a large

percentage of [the cocaine]." Furthermore,

defense counsel stated that the amount of cocaine

Scanga used was "still accountable for relevant

conduct, but in terms of being distributed . . .

Mr. Scanga was addicted and was using a

considerable amount." The district court

ultimately adopted the guideline calculation of

relevant conduct found in the PSR (more than 2.0

kilograms but less than 3.5 kilograms of

cocaine). The court, after inclusion of a twolevel upward adjustment for obstruction of

justice and a three-level reduction for

acceptance of responsibility, found Scanga’s

total offense level to be 27 with a criminal

history level of two. This placed Scanga in a

guideline range of 78 to 97 months. The court

concluded that a sentence near the top of the

guideline range was appropriate, and so sentenced

Scanga to a 92-month term of imprisonment, five

years of supervised release, and a $100 special

assessment. Moreover, Scanga was to forfeit 65%

of the sale proceeds of his home, with the

remaining 35% of the amount from the sale to go

towards child support for his son.

 In this appeal of his sentence, Scanga first

contends that the district court committed plain

error by not taking into account what Scanga

characterizes as his statement that he consumed

approximately half of the cocaine that was

shipped to him. According to Scanga, the court

instead decreased the drug quantity by the amount

he and Busse used during a five-week period. He

argues that if the court had decreased the drug

quantity by the entire "personal use" amount, the

total quantity would have been more than .5

kilograms but less than 2.0 kilograms, resulting

in a guideline range of 63 to 78 months. We

believe, however, that Scanga has waived

appellate review of the calculation of his

relevant conduct. Waiver, as opposed to

forfeiture, "occurs when a defendant

intentionally relinquishes a known right." United

States v. Staples, 202 F.3d 992, 995 (7th Cir.

2000) (citations omitted); see also United States

v. Olano, 507 U.S. 725, 733 (1993). Scanga

intentionally relinquished his right to appeal

the guidelines calculations when both he and his
counsel affirmatively stated that they had no

further objections after the drug quantity had

been revised in the PSR addendum. Indeed, at the

sentencing hearing the court asked whether Scanga

or his counsel had any objections to the PSR.

Scanga replied that "everything seems to be

correct," and Scanga’s attorney stated "I don’t

have any objection now that the addendum was

filed." More importantly, Scanga did object to

the amount of drugs credited towards personal

use, but when the personal use quantity was not

changed after the PSR addendum was filed, he

failed to object further. Moreover, the objection

to the PSR specifically claims that the drug

quantity should be between 2.0 and 3.5 kilograms,

even if adequate credit for personal use is

included. The PSR was subsequently amended to

this requested range, and Scanga did not object

again. Admittedly, Scanga’s counsel’s statement

at the sentencing hearing that personal use

amounts were "accountable for relevant conduct"

does seem to indicate ignorance of the fact that

personal use should not be counted. Nonetheless,

in both the PSR and the addendum, the same

personal use amount was explicitly subtracted

from the relevant conduct recommendations.

Although Scanga did object to the personal use

amount found in the PSR, he did not object to the

identical calculation in the PSR addendum. 

 Alternatively, Scanga argues that his counsel at

sentencing was ineffective because his attorney

allegedly believed personal use counted toward

relevant conduct, and therefore failed to object

to the inclusion of personal use amounts. Under

the familiar standard of Strickland v.

Washington, 466 U.S. 668, 687 (1984), to

demonstrate an ineffective assistance of counsel

claim Scanga must first show that his counsel’s

actions (or inactions) were deficient. See also

Allen v. United States, 175 F.3d 560, 563 (7th

Cir. 1999). He must then demonstrate that the

deficient performance caused prejudice. Id. In

applying the Strickland standard, this court is

"highly deferential to counsel, presuming

reasonable judgment and declining to second guess

strategic choices." United States v. Shukri, 207

F.3d 412, 418 (7th Cir. 2000) (citation and

internal quotations omitted). Furthermore, there

is a "strong presumption" that counsel’s

decisions constitute reasonable litigation

strategy. Id. Contrary to Scanga’s contention

otherwise, his counsel did object to the amount

of cocaine that the PSR author credited to

personal use. That his attorney did not object

again after the PSR was amended does not refute

the presumption that his counsel’s judgment was

reasonable. In his objection, counsel

specifically asked for a recommendation of 2.0 to

3.5 kilograms of cocaine. Once the PSR was

reduced to this exact range, it was reasonable
for counsel to not object again. 

 Granted, counsel did state that the cocaine

Scanga personally used was "still accountable for

relevant conduct." But counsel’s objection to the

PSR, which stated that Scanga should be given

credit for the cocaine he used, and the fact that

both the PSR and the PSR addendum explicitly

subtract the amount attributed to personal use,

show that counsel knew he could object again to

the personal use amount but just chose not to.

Moreover, a collateral attack pursuant to 28

U.S.C. sec. 2255 is the more appropriate avenue

for an inquiry into whether Scanga’s counsel knew

or didn’t know that he could object again to the

amount of drugs attributed to personal use. See,

e.g., United States v. Yack, 139 F.3d 1172, 1176

(7th Cir. 1998) (recommending that ineffective

assistance of counsel claims be raised in

collateral proceedings because "the district

court can then hold a hearing, if necessary, to

learn what motivated attorneys to make the

choices which were made"). In this direct appeal,

however, "alleged lapses or errors will be

presumed tactical moves, flawed only in

hindsight." Id. (citations and internal

quotations omitted). Because there is no evidence

in the record concerning why Scanga’s attorney at

sentencing said that personal use was accountable

for relevant conduct, there is no reason to

disrupt the presumption that Scanga’s attorney

utilized his professional judgment when choosing

not to object to the PSR a second time.

 In conclusion, because Scanga has waived

appellate review of the sentencing calculations,

and because he has not shown that his counsel’s

performance was inadequate, we AFFIRM the district

court’s determination of Scanga’s sentence.