## In the 

# United States Court of Appeals For the Seventh Circuit

____________

No. 06-3914

B RETTA. S TALLINGS , Petitioner-Appellant,

v.

U NITED S TATES OF A MERICA , Respondent-Appellee.

____________ Appeal from the United States District Court for the Southern District of Illinois. No. 06 C 136— William D. Stiehl
, Judge.

____________ A RGUEDA PRIL 22, 2008—D ECIDEDJ ULY 30, 2008

____________

Before R IPPLE , E VANSand W ILLIAMS , Circuit Judges

. R IPPLE , Circuit Judge . Brett Stallings was convicted of possession of a firearm by a felon. See 18 U.S.C. § 922(g). Mr. Stallings, an armed career criminal, see id. § 924(e), was sentenced to 188 months ’ imprisonment shortly before the Supreme Court decided United States v. Booker
,543 U.S. 220 (2005) (holding that the sentencing guidelines are advisory, not mandat ory). In this postconviction proceeding under 28 U.S.C. § 2255, Mr. Stallings contends that counsel on direct appeal was ineffective because she failed to raise a claim under Booker . For the reasons set forth in this opinion, we agree with Mr. Stallings that2 No. 06-3914
counsel was deficient in failing to raise the claim, but, because we cannot determine on the record before us whether this shortcoming pr ejudiced Mr. Stallings, we vacate the district court’s order and remand for further proceedings on this issue.

I

BACKGROUND Mr. Stallings, a convicted fe lon, was standing in a parking lot when a police car approached him. Police observed Mr. Stallings discard an item under a nearby vehicle, and, when they retrieved it, they discovered it to be a loaded revolver. Mr. Stallings was charged with possession of a firearm by a felon and found guilty by a jury.

Mr. Stallings was sentenced in November 2004, several months after we had held the mandatory nature of the sentencing guidelines to be unconstitutional in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), and three months after the Supreme Court had granted certiorari in that case, see United States v. Booker , 542 U.S. 956 (2004). Over objection, the district court found that Mr. Stallings had three qualifying convic tions under section 924(e)(2) and thus faced a minimum sentence of 15 years under section 924(e)(1). The court, applying the guidelines, calculated a total offense level of 33 and a criminal history category of IV, which yielded an imprisonment range of 188 to 235 months.

Before sentencing Mr. Stallin gs to 188 months’ imprisonment, the district court stated that “under the law, I believe I am required to impose a certain, at least minimumNo. 06-3914 3
sentence.” R.107 at 21. Mr. Stallings’ arguments about his failing health, the district court continued, were not sufficiently corroborated by me dical information to allow the court “to depart downward or reduce a sentence for that medica l condition.” Id . Mr. Stallings’ trial counsel did not object on any ground to the application of the sentencing guidelines. But after the sentence had been imposed, counsel addressed th e following inquiry to the court: “Judge, and I don’t know what the answer is, maybe you can—with Blakely being under on [sic] theSupreme Court, do you have to do any alternative sentencing? Because I think you sentenced him under the guidelines.” Id . at 26. The district court responded: “I didnot impose an alternative sentence. And I think the sentence is appropriate. If it tu rns out I’m wrong, then we’ll do it again.” Id . Nothing more was said on the subject by counsel or the court. Mr. Stallings appealed with newly appointed counsel. Counsel argued both that there was insufficient evidence to convict and that former counsel had rendered ineffective assistance during the trial. United States v. Stallings
, 160 Fed. App’x 478 (7th Cir. 2005). The case was briefed after the Supreme Court had decided Bookerand after this court had decided United States v. Paladino , 401 F.3d 471 (7th Cir. 2005), and United States v. Schlifer , 403 F.3d 849 (7th Cir. 2005)

. Nevertheless, appellate counsel did not make a Bookerargument in her brief, and the subject was not raised during oral argument on October 25, 2005. We affirmed the judgment in December 2005.

Mr. Stallings then filed a petition for habeas corpus under section 2255 in February 2006. He raised a number of claims, including that his appellate lawyer had been ineffective because she did not argue that it was error for4 No. 06-3914

1 In his brief, Mr. Stallings asked us to expand the certificate of appealability to allow him to contend that appellate counselalso was ineffective in failing to argue that a burglary conviction used in sentencing him as an armed career criminal (continued...) the district court to sentence him as an armed career criminal without proving his predicate convictions to a jury beyond a reasonable doubt. In connection with this contention, Mr. Stallings alleged that he had brought Blakely v. Washington , 542 U.S. 296 (2004), to appellate counsel’s attention but that she had ignored that decision against his wishes. Mr. Stallings also claimed that he should not have received a guidelines sentence because he was sentenced “Post ‘ Blakely ’ and Pre Booker .” R.1 at 9. In denying relief, the district court first concluded that Mr. Stallings was foreclosed from raising a Bookerclaim by way of section 2255. The court also rejected his claim that appellate counsel had been ineffective, but it made no mention of Bookerin rejecting that claim. Mr. Stallings filed a timely notice of appeal, which we construed as an applic ation for a certificate of appealability. We granted Mr. Stallings a certificate “regarding whether his appella te counsel was ineffective” and directed the parties “to address whether appellate counsel’s failure to argue that Stallings was entitled to a limited remand to determine whether the sentencing court would have imposed the same sentence under an advisory guidelines regime, see United States v. Paladino , 401 F.3d 471, 483-84 (7th Cir. 2005), constituted ineffective assistance of counsel.” Stallings v. United States , No. 06-3914 (7th Cir. Jan. 25, 2007) (order granting certificate of appealability). 1No. 06-3914 5

1 (...continued) was not a “violent felony” under section 924(e)(2)(B). We previously rejected this expansion request. Stallings v. United States , No. 06-3914 (7th Cir. Aug. 2, 2007) (order denying expansion of certificate of appealability). In any event, the proposed theory is frivolous. The indictment and judgment for that conviction reveal th at Mr. Stallings burglarized a structure, and burglary of a structure is per se a “violent felony.” See 18 U.S.C. § 924(e)(2)(B)(ii); Taylor v. United States , 495 U.S. 575, 599 (1990). II

DISCUSSION As a preliminary matter, Mr. Stallings makes a broader argument than the one fram ed in the certificate of appealability. He submits th at his appellate counsel should have asked not for a limited remand under Paladino , as suggested by our certificate, but for a full remand under United States v. Schlifer , 403 F.3d 849 (7th Cir. 2005). This is so, according to Mr. Stallings, because “by citing to Blakelyat sentencing . . . trial counsel preserved his Bookerargument, making Mr. Stallings eligible for harmless error review under Schlifer .” Appellant’s Br. at 17. We cannot accept Mr. Stallings’ premise. When Mr. Stallings’ trial counsel mentioned Blakelyat sentencing, he did no more than ask the district court about the governing law; counsel did not offer a view of the law or suggest that Mr. Stallings had been sentenced improperly, and therefore he did not preserve any error. Thus, the question before us, as correctly framed in the order granting a certificate of appealability, is whether Mr. Stallings’ appellate counsel was ineffective for failing to raise the Paladino argument.6 No. 06-3914

On review from the denial of a section 2255 motion, we review findings of fact for clear error and findings of law de novo. Bethel v. United States , 458 F.3d 711, 716 (7thCir. 2006). To show that his appellate counsel was ineffective, Mr. Stallings would ha ve to prove that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) he was prejudiced by counsel’s

error. Strickland v. Washington , 466 U.S. 668, 687-92 (1984); Suggs v. United States , 513 F.3d 675, 678 (7th Cir. 2008). We presume that counsel’s performance was reasonable, and that presumption must be ov ercome for Mr. Stallings to succeed. Martin v. Evans , 384 F.3d 848, 852 (7th Cir. 2004).

When a petitioner contends that his appellate counsel was ineffective because counse l overlooked a meritorious argument, we first examine the record to see whether the appellate attorney in fact omitted “significant and obvious” issues. Suggs , 513 F.3d at 678; Martin , 384 F.3d at 851-52. If so, we then compare the neglected issues to those actually raised; if th e ignored issues are “clearly stronger” than those raised, appellate counsel was deficient. Lee v. Davis , 328 F.3d 896, 900-01 (7th Cir. 2003). We shall not second-guess strategic decisions that were arguably appropriate at the time but that hindsight has revealed to be unwise. Mason v. Hanks , 97 F.3d 887, 893 (7th Cir. 1996). To meet the prejudice prong Mr. Stallings must show “a reasonable probability” that the omitted Booker claim “would have altered the outcome” of his direct appeal had it been raised. See Lee , 328 F.3d at 901.

We have not addressed prev iously whether the failure of appellate counsel to raise a forfeited Bookerclaim and request a Paladino remand could constitute ineffective assistance. At least one district court in this circuit has granted a section 2255 motion made on that ground. See Gant v. United States , 2006 WL 842374, at *4 (C.D. Ill. Mar.No. 06-3914 7

28, 2006); see also United States v. Pena , 2007 WL 496731, at *1 (W.D. Mich. Feb. 13, 2007).

We agree with Mr. Stallings that, in this particular case, the omitted Paladino argument was “significant and obvious” and also “clearly stronger” than the arguments raised by appellate counse l. A limited remand under Paladino was available to any appellant who might conceivably benefit from the procedure, and the threshold was very low. Meanwhile, the issues appellate counsel did raise were nearly doomed to fail. See United States v. Harris , 394 F.3d 543, 557-58 (7th Cir. 2005) (explaining why ineffective-assistance claims should rarely be brought on direct appeal); United States v. Hicks , 368 F.3d 801, 804-05 (7th Cir. 2004) (stating that the standard of review for insufficiency claim is “daunting”).

Had Mr. Stallings asked for a Paladino remand on direct appeal, we would have granted it; the sentencing judge’s cryptic comment about havingimposed an “appropriate” sentence is not enough from which to conclude that thedistrict court would not have considered a lower sentence had it understood the advisory nature of the guidelines. As long as the district court viewed the guidelines to be mandatory and did not convey that it would reject greater leniency under an advisory system, a Paladino remand request was available to any defendant who failed to make a Bookerargument at sentencing. See United States v. Washington , 417 F.3d 780, 788-89 (7th Cir. 2005). The district court’s belief that it was required to impose a guidelines sentence constituted error. United States v. White , 406 F.3d 827, 835 (7th Cir. 2005). In the limited remand, we would have asked the district court whetherthe sentence might have been different under the advisory guidelines regime—in other words, whether the error was prejudicial. Paladino , 401 F.3d at 483-84. This8 No. 06-3914
also is the key remaining question under the Strickland test. 466 U.S. at 692. The district court, however, never addressed the theory that appellate coun sel’s failure to seek a Paladino remand constituted ineffective assistance. If the districtcourt had addressed this question when it first considered the section 2255 motion , it could have answered the question of prejudice simply by saying whether it would have sentenced Mr. Stallings any differently hadit known the guidelines were advisory. Because the district court did not answer this question, we cannot determine whether counsel’s deficient performance resulted in prejudice to Mr. Stallings. Thus, we vacate the court’s order and remand for further consideration.

If the district court announces that it would have replied
to a Paladino remand by informing this court that the same sentence would have been imposed, then Mr. Stallings could not have been prejudiced by appellate counsel’s failure to raise the argument on appeal. In that event, the section 2255 motion should be denied. On the other hand, if the district court would have signaled an intention to resentence in response to a Paladino remand, then it should grant the section 2255 motion, vacate Mr. Stallings’ sentence and resentence him.

Conclusion Accordingly, we vacate the district court’s judgment and remand for further proceedin gs consistent with this opinion.

V ACATED and R EMANDED

USCA-02-C-0072—7-30-08