Glover v. United States, 531 U.S. 198 (2001)

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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 Government objected to grouping the money laundering counts with the others, and the trial court agreed. Glover's offense level was thus increased 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 correct 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 competence, and denied his ineffective-assistance claim. The Seventh Circuit affirmed, relying on the Government's theory that even were the performance of Glover's counsel ineffective, the resulting increase in sentence, 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 outcome will not suffice to establish prejudice. This Court explained last Term that the Lockhart holding does not supplant the Strickland analysis. 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-

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