United States of America v. Ralph A. Scanga

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

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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

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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 two-
level 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

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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

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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.

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