GLOVER v. UNITED STATES

531US1 Unit: $U11 [04-13-02 15:12:01] PAGES PGT: OPIN
198 OCTOBER TERM, 2000
Syllabus
GLOVER v. UNITED STATES
certiorari to the united states court of appeals for
the seventh circuit
No. 99–8576. Argued November 27, 2000—Decided January 9, 2001
The probation office recommended that petitioner Glover’s federal labor
racketeering, money laundering, and tax evasion convictions be grouped
under United States Sentencing Guidelines § 3D1.2, which allows the
grouping of counts involving substantially the same harm. The Gov-
ernment objected to grouping the money laundering counts with the
others, and the trial court agreed. Glover’s offense level was thus in-
creased by two levels, resulting in an increased sentence of between 6
and 21 months. His counsel did not press the grouping issue in the
trial court or raise it on appeal to the Seventh Circuit, which affirmed
his conviction and sentence. Glover then filed a pro se motion to cor-
rect his sentence, arguing that his counsel’s failure to pursue the issue
was ineffective assistance, without which his offense level would have
been lower. The District Court denied the motion, determining that
under Circuit precedent a 6- to 21-month sentencing increase was not
significant enough to amount to prejudice for purposes of Strickland
v. Washington, 466 U. S. 668. As a result, the court did not decide
whether Glover’s counsel fell below a reasonable standard of compe-
tence, and denied his ineffective-assistance claim. The Seventh Circuit
affirmed, relying on the Government’s theory that even were the per-
formance of Glover’s counsel ineffective, the resulting increase in sen-
tence, under Circuit precedent, would not constitute prejudice.
Held: The Seventh Circuit erred in engrafting onto the prejudice branch
of the Strickland test the requirement that any increase in sentence
must meet a standard of significance. Pp. 202–205.
(a) The Government no longer asserts that a 6- to 21-month prison
term increase is not prejudice under Strickland. The Seventh Circuit
drew the substance of its rule from Lockhart v. Fretwell, 506 U. S. 364,
369, which holds that in some circumstances a mere difference in out-
come will not suffice to establish prejudice. This Court explained last
Term that the Lockhart holding does not supplant the Strickland analy-
sis. See Williams v. Taylor, 529 U. S. 362, 393. The Seventh Circuit
was incorrect to rely on Lockhart to deny relief to persons who might
show deficient performance in their counsel’s failure to object to an error
of law affecting the sentencing calculation because the sentence increase
does not meet some baseline prejudice standard. This Court’s jurispru-

531US1 Unit: $U11 [04-13-02 15:12:01] PAGES PGT: OPIN
199 Cite as: 531 U. S. 198 (2001)
Opinion of the Court
dence suggests that any amount of actual jail time has Sixth Amend-
ment significance. E. g., Argersinger v. Hamlin, 407 U. S. 25. More-
over, decisions on the right to jury trial in a criminal case, see id., at
29, do not control the question whether a showing of prejudice, in the
context of an ineffective-assistance claim, requires a significant prison
term increase. The Seventh Circuit’s rule is not well considered in any
event, because there is no obvious dividing line by which to measure
how much longer a sentence must be for the increase to constitute
substantial prejudice. Although the amount by which a defendant’s
sentence is increased by a particular decision may be a factor in deter-
mining whether counsel’s performance in failing to argue the point
constitutes ineffective assistance, under a determinate system of con-
strained discretion such as the Sentencing Guidelines it cannot serve as
a bar to a showing of prejudice. Here the Court considers the sentenc-
ing calculation itself, which resulted from a ruling that had it been error,
would have been correctable on appeal. The question of deficient per-
formance is not before the Court, but it is clear that prejudice flowed
from the asserted error in sentencing. Pp. 202–204.
(b) The Government’s various arguments for affirming the Seventh
Circuit’s judgment were neither raised nor resolved below, and are out-
side the questions presented by the petition for certiorari. Whether
these issues remain open, and if so whether they have merit, are ques-
tions for the lower courts to determine in the first instance. P. 205.
182 F. 3d 921, reversed and remanded.
Kennedy, J., delivered the opinion for a unanimous Court.
Michael L. Waldman argued the cause and filed briefs
for petitioner.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the brief were Solicitor
General Waxman, Assistant Attorney General Robinson,
Matthew D. Roberts, and Joel M. Gershowitz.*
Justice Kennedy delivered the opinion of the Court.
The issue presented rests upon the initial assumption,
which we accept for analytic purposes, that the trial court
*David M. Zlotnick, Peter Goldberger, and Kyle O’Dowd filed a brief
for the National Association of Criminal Defense Lawyers et al. as amici
curiae urging reversal.

531US1 Unit: $U11 [04-13-02 15:12:01] PAGES PGT: OPIN
200 GLOVER v. UNITED STATES
Opinion of the Court
erred in a Sentencing Guidelines determination after peti-
tioner’s conviction of a federal offense. The legal error,
petitioner alleges, increased his prison sentence by at least
6 months and perhaps by 21 months. We must decide
whether this would be “prejudice” under Strickland v.
Washington, 466 U. S. 668 (1984). The Government is not
ready to concede error in the sentencing determination but
now acknowledges that if an increased prison term did flow
from an error the petitioner has established Strickland prej-
udice. In agreement with the Government and petitioner on
this point, we reverse and remand for further proceedings.
I
In the 1980’s and early 1990’s, petitioner Paul Glover was
the Vice President and General Counsel of the Chicago Truck
Drivers, Helpers, and Warehouse Workers Union (Independ-
ent). The evidence showed Glover used his control over the
union’s investments to enrich himself and his co-conspirators
through kickbacks. When the malfeasance was discovered,
he was tried in the United States District Court for the
Northern District of Illinois. His first trial ended when the
jury could not agree, but a second jury convicted him. The
presentence investigation report prepared by the probation
office recommended that the convictions for labor racketeer-
ing, money laundering, and tax evasion be grouped together
under United States Sentencing Commission, Guidelines
Manual § 3D1.2 (Nov. 1994), which allows the grouping of
“counts involving substantially the same harm.” The Gov-
ernment, insisting that the money laundering counts could
not be grouped with the other counts, objected to that rec-
ommendation, and the District Court held a hearing on the
matter. The money laundering counts, it ruled, should not
be grouped with Glover’s other offenses. The ruling, as the
trial court viewed it, was in conformance with decisions in
those Courts of Appeals which had refused to group money
laundering counts with other counts for various reasons.

531US1 Unit: $U11 [04-13-02 15:12:01] PAGES PGT: OPIN
201 Cite as: 531 U. S. 198 (2001)
Opinion of the Court
See, e. g., United States v. Lombardi, 5 F. 3d 568 (CA1 1993);
United States v. Porter, 909 F. 2d 789 (CA4 1990); United
States v. Taylor, 984 F. 2d 298 (CA9 1993); United States v.
Johnson, 971 F. 2d 562 (CA10 1992); United States v. Harper,
972 F. 2d 321 (CA11 1992). In the trial court, Glover’s attor-
neys did not submit papers or offer extensive oral arguments
contesting the no-grouping argument advanced by the Gov-
ernment. When the District Court decided not to group the
money laundering counts with the other counts, Glover’s
offense level was increased by two levels, yielding a con-
comitant increase in the sentencing range. Glover was
sentenced to 84 months in prison, which was in the middle
of the Guidelines range of 78 to 97 months.
On appeal to the Seventh Circuit, Glover’s counsel (the
same attorneys who represented him in District Court) did
not raise the grouping issue; instead, they concentrated on
claims that certain testimony from his first trial should not
have been admitted at his second trial and that he should
not have been assessed a two-level increase for perjury at
his first trial. A short time after argument on Glover’s ap-
peal, a different panel of the Seventh Circuit held that, under
some circumstances, grouping of money laundering offenses
with other counts was proper under § 3D1.2. United States
v. Wilson, 98 F. 3d 281 (1996). A month and a half later,
the Seventh Circuit rejected both of Glover’s arguments and
affirmed his conviction and sentence. 101 F. 3d 1183 (1996).
Glover filed a pro se motion to correct his sentence under
28 U. S. C. § 2255 (1994 ed., Supp. III). The failure of his
counsel to press the grouping issue, he argued, was ineffec-
tive assistance, a position confirmed, in his view, by the
Court of Appeals’ decision in Wilson. The performance of
counsel, he contended, fell below a reasonable standard both
at sentencing, when his attorneys did not with any clarity or
force contest the Government’s argument, and on appeal,
when they did not present the issue in their briefs or call the
Wilson decision to the panel’s attention following the oral

531US1 Unit: $U11 [04-13-02 15:12:01] PAGES PGT: OPIN
202 GLOVER v. UNITED STATES
Opinion of the Court
argument. He further argued that absent the ineffective as-
sistance, his offense level would have been two levels lower,
yielding a Guidelines sentencing range of 63 to 78 months.
Under this theory, the 84-month sentence he received was
an unlawful increase of anywhere between 6 and 21 months.
The District Court denied Glover’s motion, determining
that under Seventh Circuit precedent an increase of 6 to 21
months in a defendant’s sentence was not significant enough
to amount to prejudice for purposes of Strickland v. Wash-
ington, supra. As a result, the District Court did not decide
the issue whether the performance of Glover’s counsel fell
below a reasonable standard of competence. On appeal
to the Seventh Circuit, the Government argued only that
Glover had not suffered prejudice within the meaning of
Strickland. See App. to Reply Brief for Petitioner 1a–22a.
Citing Durrive v. United States, 4 F. 3d 548 (CA7 1993), the
Government contended that even were the performance of
Glover’s counsel ineffective, the resulting additional 6 to 21
months, under the law as established in the Seventh Circuit,
would not constitute prejudice. App. to Reply Brief for
Petitioner 21a. The Court of Appeals affirmed, relying
on that theory. 182 F. 3d 921 (1999) (table). We granted
Glover’s petition for certiorari. 530 U. S. 1261 (2000).
II
The Government no longer puts forth the proposition that
a 6- to 21-month prison term increase is not prejudice under
Strickland. It now acknowledges that such a rule, without
more, would be “inconsistent with this Court’s cases and un-
workable.” Brief for United States 18.
It appears the Seventh Circuit drew the substance of its
no-prejudice rule from our opinion in Lockhart v. Fretwell,
506 U. S. 364 (1993). Lockhart holds that in some circum-
stances a mere difference in outcome will not suffice to estab-
lish prejudice. Id., at 369. The Seventh Circuit extracted
from this holding the rule at issue here, which denies relief

531US1 Unit: $U11 [04-13-02 15:12:01] PAGES PGT: OPIN
203 Cite as: 531 U. S. 198 (2001)
Opinion of the Court
when the increase in sentence is said to be not so significant
as to render the outcome of sentencing unreliable or fun-
damentally unfair. See Durrive, supra, at 550–551. The
Court explained last Term that our holding in Lockhart does
not supplant the Strickland analysis. See Williams v. Tay-
lor, 529 U. S. 362, 393 (2000) (“Cases such as Nix v. White-
side, 475 U. S. 157 (1986), and Lockhart v. Fretwell, 506 U. S.
364 (1993), do not justify a departure from a straightforward
application of Strickland when the ineffectiveness of counsel
does deprive the defendant of a substantive or procedural
right to which the law entitles him”); id., at 414 (opinion of
O’Connor, J.) (“As I explained in my concurring opinion in
[Lockhart], ‘in the vast majority of cases . . . [t]he determina-
tive question—whether there is “a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different”—remains un-
changed’ ”). The Seventh Circuit was incorrect to rely on
Lockhart to deny relief to persons attacking their sentence
who might show deficient performance in counsel’s failure to
object to an error of law affecting the calculation of a sen-
tence because the sentence increase does not meet some
baseline standard of prejudice. Authority does not suggest
that a minimal amount of additional time in prison cannot
constitute prejudice. Quite to the contrary, our jurispru-
dence suggests that any amount of actual jail time has Sixth
Amendment significance. Compare Argersinger v. Hamlin,
407 U. S. 25 (1972) (holding that the assistance of counsel
must be provided when a defendant is tried for a crime that
results in a sentence of imprisonment), with Scott v. Illinois,
440 U. S. 367 (1979) (holding that a criminal defendant has
no Sixth Amendment right to counsel when his trial does not
result in a sentence of imprisonment). Our decisions on the
right to jury trial in a criminal case do not suggest that there
is no prejudice in the circumstances here. Those cases have
limited the right to jury trial to offenses where the potential
punishment was imprisonment for six months or more. See

531US1 Unit: $U11 [04-13-02 15:12:01] PAGES PGT: OPIN
204 GLOVER v. UNITED STATES
Opinion of the Court
Argersinger, supra, at 29 (citing Duncan v. Louisiana, 391
U. S. 145 (1968)). But they do not control the question
whether a showing of prejudice, in the context of a claim for
ineffective assistance of counsel, requires a significant in-
crease in a term of imprisonment.
The Seventh Circuit’s rule is not well considered in any
event, because there is no obvious dividing line by which to
measure how much longer a sentence must be for the in-
crease to constitute substantial prejudice. Indeed, it is not
even clear if the relevant increase is to be measured in abso-
lute terms or by some fraction of the total authorized sen-
tence. See Martin v. United States, 109 F. 3d 1177, 1183
(CA7 1996) (Rovner, J., dissenting from denial of rehearing
en banc). Although the amount by which a defendant’s sen-
tence is increased by a particular decision may be a factor
to consider in determining whether counsel’s performance in
failing to argue the point constitutes ineffective assistance,
under a determinate system of constrained discretion such
as the Sentencing Guidelines it cannot serve as a bar to a
showing of prejudice. Compare Spriggs v. Collins, 993 F. 2d
85, 88 (CA5 1993) (requiring a showing that a sentence would
have been “significantly less harsh” under the Texas discre-
tionary sentencing scheme), with United States v. Phillips,
210 F. 3d 345 (CA5 2000) (finding prejudice under the Sen-
tencing Guidelines when an error by counsel led to an in-
creased sentence). We hold that the Seventh Circuit erred
in engrafting this additional requirement onto the prejudice
branch of the Strickland test. This is not a case where trial
strategies, in retrospect, might be criticized for leading to a
harsher sentence. Here we consider the sentencing calcula-
tion itself, a calculation resulting from a ruling which, if it
had been error, would have been correctable on appeal. We
express no opinion on the ultimate merits of Glover’s claim
because the question of deficient performance is not before
us, but it is clear that prejudice flowed from the asserted
error in sentencing.

531US1 Unit: $U11 [04-13-02 15:12:01] PAGES PGT: OPIN
205 Cite as: 531 U. S. 198 (2001)
Opinion of the Court
III
The Government makes various arguments for alternative
grounds to affirm the Court of Appeals. Among other con-
tentions, the Government suggests that the failure of Glov-
er’s counsel to argue for grouping of the money laundering
counts was not deficient; that Glover’s grouping claim has no
legal merit in any event; and that even if Glover had pre-
vailed on his grouping claim, his sentence in fact would have
increased as a result. Glover disputes these contentions.
We need not describe the arguments in great detail, because
despite the fact the parties have joined issue at least in part
on these points, they were neither raised in nor passed upon
by the Court of Appeals. In the ordinary course we do not
decide questions neither raised nor resolved below. See
Taylor v. Freeland & Kronz, 503 U. S. 638, 646 (1992). As
a general rule, furthermore, we do not decide issues outside
the questions presented by the petition for certiorari. This
Court’s Rule 14.1(a). Whether these issues remain open,
and if so whether they have merit, are questions for the
Court of Appeals or the District Court to consider and deter-
mine in the first instance.
The judgment of the Seventh Circuit is reversed. The
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.