Sammy Knox v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1938
S AMMY K NOX ,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 C 7392 (89 CR 908)—Matthew F. Kennelly, Judge.
____________
A RGUED J ANUARY 18, 2005—D ECIDED M ARCH 9, 2005
____________
Before P OSNER , E ASTERBROOK , and R OVNER , Circuit
Judges.
E ASTERBROOK , Circuit Judge. Sammy Knox is serving a
life sentence for racketeering. The predicate felonies include
drug offenses. He was a leader of the El Rukn street gang,
which among its other unlawful activities distributed large
quantities of cocaine and heroin until a series of prosecu-
tions decapitated the organization. Knox’s initial convictions
and life sentence were vacated because of prosecutorial
misconduct, see United States v. Boyd, 55 F.3d 239 (7th Cir.
1995), but the result of the second trial was the same, and
we rejected all of the 20 arguments presented on the gang

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2 No. 04-1938
leaders’ appeals. See United States v. Boyd, 208 F.3d 638
(7th Cir. 2000). Three months after our decision, the
Supreme Court released Apprendi v. New Jersey, 530 U.S.
466 (2000), and it directed us to reconsider in light of that
decision. 531 U.S. 1135 (2001). The jury that convicted
Knox had not determined beyond a reasonable doubt either
which drug (or drugs) the gang distributed, or in what quan-
tity; until Apprendi those had been issues for the judge to
resolve on the preponderance standard. See United States
v. Edwards, 105 F.3d 1179 (7th Cir. 1997), affirmed, 523
U.S. 511 (1998). We concluded, however, that a new trial was
unnecessary
because the evidence shows beyond any possible
doubt that the defendants, whose vast drug conspir-
acy is detailed in the opinion that the Court re-
manded, United States v. Boyd, 208 F.3d 638 (7th
Cir. 2000), were responsible for such a large quantity
of drugs that had the jury been correctly instructed,
it would have found them guilty beyond a reason-
able doubt of the offenses for which they were sen-
tenced.
United States v. Green, No. 98-2036 (7th Cir. Apr. 3, 2001)
(unpublished order). The Supreme Court denied Knox’s re-
quest for certiorari. 534 U.S. 968 (2001). The prosecution,
commenced in 1989 and growing out of events that date back
to the 1960s, was over.
Before long, however, Knox was back in court seeking
collateral relief under 28 U.S.C. §2255. He contended that
his lawyer had rendered constitutionally deficient assistance
by omitting a 21st issue on the second appeal: a claim that
Knox calls “Orozco-Prada error” after United States v.
Orozco-Prada, 732 F.2d 1076, 1083-84 (2d Cir. 1984). The
second circuit held in Orozco-Prada that, when a jury fails
to determine which drug the defendants distributed, the
judge must assume when imposing sentence that the drug
was whichever carries the lowest maximum penalty. For

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No. 04-1938 3
Knox that would be Talwin rather than marijuana, cocaine,
or heroin, which the indictment also charged. (Talwin, a
narcotic pain reliever, is a schedule IV controlled substance,
and with Knox’s criminal history the maximum penalty
for its distribution would have been six years.) According to
Knox, an “Orozco-Prada error” cannot be harmless, so his
appellate lawyer’s poor selection of issues necessarily is
prejudicial. The district court was unpersuaded and denied
the petition. Knox v. United States, 2004 U.S. Dist. L EXIS
4084 (N.D. Ill. Mar. 9, 2004). Knox’s appeal places his case
before us for the fourth time.
To obtain relief, Knox must establish not only that his
lawyer furnished objectively deficient assistance—a quality
so low that he was not acting as the “counsel” required by
the sixth amendment—but also that this shortcoming caused
prejudice. Knox cannot satisfy either requirement. He wants
us to ignore everything his lawyer did for him and concen-
trate on one supposed failing. Yet courts assess the lawyer’s
work as a whole. Strickland v. Washington, 466 U.S. 668,
690 (1984); Holman v. Gilmore, 126 F.3d 876, 881-84 (7th
Cir. 1997). Knox’s lawyer managed to get his first conviction
annulled, despite the overwhelming evidence of guilt, and
defended that victory against a determined appeal by the
United States. The second trial was vigorously contested, as
was the second appeal. Lawyers must curtail the number of
issues they present, not only because briefs are limited in
length but also because the more issues a brief presents the
less attention each receives, and thin presentation may
submerge or forfeit a point. “Experienced advocates since
time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on
one central issue if possible, or at most on a few key issues.”
Jones v. Barnes, 463 U.S. 745, 751-52 (1983). Jones rejected
a contention that the sixth amendment requires appellate
counsel to raise all non-frivolous issues.

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4 No. 04-1938
Raising 20 weak issues would not excuse omitting a sure
winner, but that is not a plausible description of how Knox’s
lawyer proceeded. Our opinion in Edwards, which supplied
the controlling law in this circuit when Knox’s lawyer had
to choose what issues to present, had rejected the holding
of Orozco-Prada. We observed that Orozco-Prada predated
the Sentencing Reform Act (which took effect in 1987) and
that under the Sentencing Guidelines the judge alone deter-
mines the kind and quantity of drugs. The Supreme Court
affirmed Edwards in 1998. Reliance on the second circuit’s
1984 decision would not have been a wise appellate strategy
on an appeal to this circuit argued (as Knox’s was) in
September 1999.
The Supreme Court had Edwards and Almendarez- Torres
v. United States, 523 U.S. 224 (1998), under advisement at
the same time. The four Justices who dissented in
Almendarez-Torres staked out a position that was to become
the majority in Apprendi when one Justice changed sides.
Edwards, by contrast, was unanimous—but the price of
unanimity was ducking the question that so divided the
Justices in Almendarez-Torres and Apprendi. Although
Edwards held that the judge determines both the type and
quantity of drugs under the Sentencing Guidelines, it ob-
served that “the sentences imposed here were within the
statutory limit applicable to a cocaine-only conspiracy” (523
U.S. at 515). At this point the Court dropped a “cf.” citation
to Orozco-Prada, which Knox says must mean that the
Supreme Court endorsed its holding. But this is not what
“cf.” means, nor could it make sense to say that by affirming
a decision that had rejected Orozco-Prada, the Supreme
Court managed to adopt Orozco-Prada indirectly.
Instead of approving either Orozco-Prada or this circuit’s
contrary view, the Court in Edwards reserved judgment on
what issues, if any, must be presented to a jury to support
a particular prison term in a prosecution under 21 U.S.C.
§841. United States v. Booker, 125 S. Ct. 738, 754 (2005), re-

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No. 04-1938 5
iterates that Edwards left this question open. In the wake
of Apprendi this court held that drug type and quantity must
be charged in the indictment and proved beyond a reasonable
doubt to the extent that they raise the statutory maximum
punishment beyond 20 or 40 years, the caps corresponding
to particular quantities of drugs, but that juries need not
resolve the precise amount for which the defendant is
responsible. See United States v. Nance, 236 F.3d 820, 824-
25 (7th Cir. 2000).
In retrospect, then, Knox’s jury should have been told
to determine whether he and his confederates agreed to dis-
tribute more than 5 kilograms of cocaine, or 50 grams of
crack, or 1 kilogram of heroin, or 500 grams of methamphet-
amine, or any of the other kind-and-quantity combinations
that make a person eligible for life imprisonment under
§841(b)(1)(A). No more precision was necessary as of 2000
(or today). Nance overruled decisions, including Edwards,
that had allocated these factual determinations to the
judge. (Booker in turn disapproved Nance and held that all
factual matters that raise a mandatory guideline range
must be established to the jury’s satisfaction, and the Court
implemented that rule by making the Sentencing Guidelines
non-mandatory.) Had Knox’s lawyer invoked Orozco-Prada
in 1999, he would have lost under our decision in Edwards
plus other pre-Apprendi decisions. See, e.g., United States
v. Jackson, 207 F.3d 910 (7th Cir. 2000), remanded, 531
U.S. 953 (2000), decision on remand, 236 F.3d 886 (2001).
What is more, even under Nance and other post-Apprendi
decisions, a jury does not need to determine what other
drugs the El Rukns distributed, once it finds that the gang
handled 50 grams of crack, which would itself support life
imprisonment for all of the leaders. See United States v.
Hoover, 246 F.3d 1054, 1058 (7th Cir. 2001). A lawyer who
concentrates attention on issues that have the best chance
of success does not display objectively deficient performance,
and thus does not render ineffective assistance of counsel.

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6 No. 04-1938
A failure to anticipate shifts in legal doctrine cannot be con-
demned as objectively deficient. See, e.g., United States v.
Smith, 241 F.3d 546, 548 (7th Cir. 2001) (failure to antici-
pate Apprendi is not ineffective assistance).
For what little significance it has, we add that Knox did
not suffer prejudice from his lawyer’s omission. We held in
2001 that the Apprendi problem was harmless because any
jury would have found beyond a reasonable doubt that the
El Rukns distributed quantities of drugs that exposed the
leaders to life in prison. Knox insists that an “Orozco-Prada
error” differs fundamentally from an Apprendi error, but we
do not see how. Orozco-Prada held that the kind of drugs is
a jury issue; Apprendi and Booker hold that both kind and
quantity are jury issues (if the answer sets the maximum
lawful penalty). One is a subset of the other. Both Apprendi
and Orozco-Prada could be rephrased, with equal plausibil-
ity, as holding that, if a jury does not make certain findings,
then the judge cannot impose a sentence higher than the
lowest statutory cap for any of the charged conduct. That’s
why we held in United States v. Bjorkman, 270 F.3d 482,
490-92 (7th Cir. 2001), that Apprendi does not make drug
type or quantity an “element” of the §841 offense: with-
holding type or quantity from the jury reduces the maximum
punishment but does not lead to an acquittal. See also
United States v. Brough, 243 F.3d 1078 (7th Cir. 2001). Our
harmless-error determination in 2001 covered both kind
and quantity; it excludes any possibility that Knox is culp-
able for Talwin alone.
United States v. Cotton, 535 U.S. 625 (2002), holds that an
Apprendi error does not require automatic reversal. In
addition to Cotton see, e.g., Neder v. United States, 527 U.S. 1
(1999); Johnson v. United States, 520 U.S. 461 (1997), which
permit application of the harmless-error and plain-error
standards when mistaken instructions fail to elicit the jury’s
decision on important questions. As the Court observed in
Schriro v. Summerlin, 124 S. Ct. 2519, 2525 (2004), juries

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No. 04-1938 7
are not necessarily more accurate than judges at finding
facts. That’s one reason why Apprendi and its successors do
not apply retroactively on collateral attack. See McReynolds
v. United States, ___ F.3d ___ (7th Cir. Feb. 2, 2005); Curtis
v. United States, 294 F.3d 841 (7th Cir. 2002). It is also why,
as Schriro, Neder, and Johnson hold, judicial resolution of
a factual dispute that should have been presented to a jury
is not a “structural error” that requires automatic reversal.
The district judge determined that Knox is responsible for
distributing a quantity of cocaine that calls for a life sen-
tence; we held in 2001 that allowing a judge rather than a
jury to make this decision was a harmless error given the
strength of the evidence; that decision also shows that Knox
did not suffer prejudice for purposes of the right to counsel.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-9-05

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