No. 13-­--2276 UNITED STATES OF AMERICA v. Roberto Flores, Jr

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-­‐‑2276
UNITED STATES OF AMERICA,
Plaintiff-­‐‑Appellee,
v.
ROBERTO FLORES, JR.,
Defendant-­‐‑Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 1004 — Robert W. Gettleman, Judge.
____________________
ARGUED DECEMBER 4, 2013 — DECIDED JANUARY 3, 2014
____________________
Before FLAUM, EASTERBROOK, and TINDER, Circuit Judges.
EASTERBROOK, Circuit Judge. Roberto Flores, an alien who
returned without permission following his removal, was
charged with that crime and others arising from his armed
drug dealing. Flores, who maintained that the United States
Code does not apply to him and that the court had no juris-­‐‑
diction to try him, refused to entertain the possibility of a
guilty plea. He went to trial and was convicted on all counts.
The judge sentenced him to concurrent 96-­‐‑month sentences

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No. 13-­‐‑2276 2
on all counts but one; that conviction, for possessing fire-­‐‑
arms in furtherance of a drug trafficking felony, led to a con-­‐‑
secutive term of 360 months’ imprisonment. The total is 456
months. The consecutive 360-­‐‑month sentence was compulso-­‐‑
ry in light of Flores’s earlier conviction of the same crime.
See 18 U.S.C. §924(c)(1)(B)(ii).
Flores presents a single argument: that his lawyer fur-­‐‑
nished ineffective assistance by telling the jury that Flores
indeed had distributed cocaine after reentering the United
States without permission. Counsel tried to persuade the ju-­‐‑
ry that the prosecution did not establish guilt beyond a rea-­‐‑
sonable doubt on the weapons-­‐‑related charges (including
the one that dominated the eventual sentence). The jury
nonetheless convicted on all counts. Now Flores contends
that no competent attorney would have pursued this strate-­‐‑
gy. It is always forbidden, his appellate lawyer insists, for
trial counsel to concede his client’s guilt on any of the charg-­‐‑
es. A concession on any charge is equivalent to a guilty plea,
and when the client has declined to plead guilty counsel
must attempt to secure an acquittal on every charge, howev-­‐‑
er improbable that outcome may be. He relies principally on
United States v. Cronic, 466 U.S. 648 (1984), which held that a
lack of legal assistance, when an appointed lawyer goes
missing in action, always violates the Constitution.
Florida v. Nixon, 543 U.S. 175 (2004), is a major obstacle to
this contention. Nixon holds that it is not invariably ineffec-­‐‑
tive for counsel to concede guilt on some charges, even in a
capital prosecution, as part of an effort to make the defense
credible. The Court concluded that Cronic does not apply to
situations in which defense counsel concedes a subset of the
charges. Denying the obvious can lead jurors to tune out the

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3 No. 13-­‐‑2276
defense lawyer or, worse, assume that if defense counsel is
behaving unrealistically (even deceitfully) on some charges,
the defense is phony on all.
Flores tries to distinguish Nixon as a situation in which
counsel alerted his client to his plan to concede guilt on
some charges, while Flores insists that his lawyer never told
him what the trial strategy would be and thus violated the
duty to discuss tactics with the accused. See Strickland v.
Washington, 466 U.S. 668, 688 (1984). This is not a compelling
line of distinction, because Nixon, having been alerted, sat in
silence and neither approved nor objected. 543 U.S. at 186.
The Court nonetheless held that counsel’s performance met
the sixth amendment’s requirements. Lack of notice seems a
lesser sin, unless we are confident that the client would have
objected and that counsel would have followed the ac-­‐‑
cused’s instructions. See also Wright v. Van Patten, 552 U.S.
120 (2008) (remarking the limited scope of Cronic).
But there is a deeper problem with Flores’s proposed dis-­‐‑
tinction of Nixon: it lacks support in the record. The source
for the proposition that Flores’s trial lawyer didn’t tell him
about the plan for the defense at trial—and that he would
have objected, had he been told—is an assertion by Flores’s
appellate lawyer. We may assume that this is based on in-­‐‑
formation from Flores. But a private message to counsel, re-­‐‑
layed to the court outside the record, is not evidence; we
must ignore it.
This highlights a fundamental problem: this is a direct
appeal rather than one from the disposition of a collateral
attack under 28 U.S.C. §2255. Nixon and Strickland, like many
other decisions, say that counsel’s strategic choices are pre-­‐‑
sumed to be competent. As a practical matter that presump-­‐‑

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No. 13-­‐‑2276 4
tion cannot be overcome without an evidentiary hearing at
which the defendant explains his view of what went wrong
and counsel can justify his choices.
At a hearing Flores might testify that his lawyer did not
tell him of a plan to concede guilt on some charges and focus
the defense on the others, and that he would have forbidden
such a strategy even knowing that the jury might find a
complete denial outlandish. Counsel might testify that he
did tell his client and that the client listened impassively (as
Nixon did) or approved, or perhaps counsel might explain
why he overrode his client’s objection. A district judge then
could determine who was telling the truth, make appropri-­‐‑
ate findings, and decide whether the defense had been con-­‐‑
ducted in a professionally competent way.
On direct appeal, by contrast, the record lacks evidence
on these issues and any findings about where the truth lies.
A court of appeals is not about to assume that the accused is
telling the truth and condemn counsel’s choices on that ba-­‐‑
sis. The best that could come of an appeal (from the defend-­‐‑
ant’s perspective) would be a remand for a hearing—
duplicating the process initiated by a motion under §2255—
and the worst that could come of it would be an affirmance
observing that an empty record is fatal to the appeal.
Lack of an adequate record is not the defendant’s only
problem. Lack of a decision by the district judge is another.
Flores never asked that judge to give him a new trial on the
ground that his counsel had furnished ineffective assistance.
This means that appellate review is limited by the plain-­‐‑
error standard of Fed. R. Crim. P. 52(b). And the Supreme
Court has concluded that the plain-­‐‑error standard is a de-­‐‑
manding one. See, e.g., United States v. Marcus, 560 U.S. 258

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5 No. 13-­‐‑2276
(2010); Puckett v. United States, 556 U.S. 129 (2009); United
States v. Dominguez Benitez, 542 U.S. 74 (2004); United States v.
Vonn, 535 U.S. 55 (2002); Johnson v. United States, 520 U.S. 461
(1997); United States v. Olano, 507 U.S. 725 (1993). The plain-­‐‑
error standard assigns to appellant the need to demonstrate
that “(1) there is an ‘error’; (2) the error is ‘clear or obvious,
rather than subject to reasonable dispute’; (3) the error ‘af-­‐‑
fected the appellant’s substantial rights, which in the ordi-­‐‑
nary case means’ it ‘affected the outcome of the district court
proceedings’; and (4) ‘the error seriously affect[s] the fair-­‐‑
ness, integrity or public reputation of judicial proceedings.’”
Marcus, 560 U.S. at 262, quoting from several other decisions.
And even if the appellant establishes all of these things, re-­‐‑
versal is discretionary: a plain error permits, but never com-­‐‑
pels, appellate correction.
It is hard to understand why a defendant would assume
these burdens when the alternative, a collateral attack under
§2255, entails none of them. The district court can compile a
record and make findings; appellate review of the law is
plenary (though review of factual findings is deferential).
After Massaro v. United States, 538 U.S. 500 (2003), held that a
defendant is never obliged to raise an ineffective-­‐‑assistance
argument on direct appeal—held, in other words, that it is
always safe to reserve the issue for collateral review—we
have said many times that it is imprudent to present an inef-­‐‑
fective-­‐‑assistance argument on direct appeal. See, e.g., United
States v. Miller, 327 F.3d 598, 601 (7th Cir. 2003); Harris v.
United States, 366 F.3d 593, 595 (7th Cir. 2004); United States v.
Harris, 394 F.3d 543, 557–59 (7th Cir. 2005); Fuller v. United
States, 398 F.3d 644, 649 (7th Cir. 2005); United States v. Pala-­‐‑
dino, 401 F.3d 471, 479 (7th Cir. 2005); Peoples v. United States,
403 F.3d 844, 846 (7th Cir. 2005); United States v. Turcotte, 405

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No. 13-­‐‑2276 6
F.3d 515, 537 (7th Cir. 2005); United States v. Banks, 405 F.3d
559, 567, 569 (7th Cir. 2005); Sanchez v. Keisler, 505 F.3d 641,
647 (7th Cir. 2007); United States v. Stark, 507 F.3d 512, 521
(7th Cir. 2007); United States v. Waltower, 643 F.3d 572, 579
(7th Cir. 2011); United States v. Isom, 635 F.3d 904, 909 (7th
Cir. 2011).
Raising ineffective assistance on direct appeal is impru-­‐‑
dent because defendant paints himself into a corner. We’ve
explained why the contention is doomed unless the conten-­‐‑
tion is made first in the district court and a full record is de-­‐‑
veloped—which happens occasionally but did not happen
here. Yet although the argument has trifling prospect of suc-­‐‑
cess, the defense has much to lose. For we held in United
States v. Taglia, 922 F.2d 413 (7th Cir. 1991), and Peoples v.
United States, 403 F.3d 844 (7th Cir. 2005), that, when an inef-­‐‑
fective-­‐‑assistance claim is rejected on direct appeal, it cannot
be raised again on collateral review. A litigant gets to argue
ineffective assistance, and for that matter any other conten-­‐‑
tion, just once. A collateral attack cannot be used to obtain a
second opinion on an argument presented and decided ear-­‐‑
lier. By arguing ineffective assistance on direct appeal the
defendant relinquishes any opportunity to obtain relief on
collateral review, even though a motion under §2255 affords
the only realistic chance of success.
Ever since Massaro the judges of this court have regularly
asked counsel at oral argument whether the defendant is
personally aware of the risks of presenting an ineffective-­‐‑
assistance argument on direct appeal and, if so, whether de-­‐‑
fendant really wants to take that risk. We encourage counsel
to discuss that subject with the defendant after argument
and to consider withdrawing the contention. We asked that

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7 No. 13-­‐‑2276
question at oral argument of this appeal, and counsel as-­‐‑
sured us that Flores is aware of the risks and wants the con-­‐‑
tention resolved now. That is his prerogative, foolish though
the choice seems to the judiciary.
Since there is no record, Nixon cannot be distinguished
and the judgment is
AFFIRMED.

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