United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
Margaret Knowles pleaded guilty to one count of attempting to
obtain controlled substances by fraud or deception, in
violation of 21 U.S.C. §§ 843 and 846. In her
written plea agreement, Knowles waived her right to appeal
her conviction and any sentence of incarceration of 16 months
or less. She received a guideline sentence of 16 months
incarceration, to be followed by a year of supervised
release. Knowles did not file a direct appeal of her
conviction or sentence, which is not surprising in light of
her plea waiver.
Knowles has filed a petition under 28 U.S.C. § 2255, in
which she asks the court to vacate her sentence, allow her to
withdraw her guilty plea, and vacate her conviction. Dkt. 7.
She asks for expedited review because she is more than eight
months in on her 16-month sentence. Dkt. 11. I will grant the
request for expedited review, but I will deny the petition
because none of her proffered grounds for relief have even
fundamental problem is that Knowles's main argument is
that the court erred in applying several guideline
enhancements, as if she were making a direct appeal of the
reasonableness of her sentence. But all issues concerning the
court's calculation of the guideline range and the
reasonableness of her sentence were expressly waived in her
plea agreement, so long as she got a sentence of 16 months or
less. Dkt. 14, ¶ 3. (Docket citations are to the
criminal case, U.S. v. Knowles, No. 16-cr-84 (W.D.
Wis.), unless otherwise noted.) She cannot avoid the
consequences of that agreement simply by repackaging her
appeal as a § 2255 petition. “[T]he general rule
[is] that claims not raised on direct appeal may not be
raised on collateral review unless the petitioner shows cause
and prejudice.” Massaro v. United States, 538
U.S. 500, 504 (2003). Accordingly, Knowles cannot prevail on
any ground that she could have raised on direct appeal.
general rule does not apply to claims for ineffective
assistance of counsel, which can be raised under § 2255
regardless whether the petitioner filed an appeal.
Id. at 509. Knowles is trying to fit her appeal into
this exception-she ends most of her arguments with a
statement that her counsel was ineffective for failing to
object to the various errors she is asserting. But she does
not make her arguments under the appropriate standard, which
requires her to show both that counsel's performance was
deficient under an “an objective standard of
reasonableness” and that she was prejudiced, meaning
that there is “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland
v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Knowles's failure to apply the Strickland
standard would be reason enough to deny the petition.
there are additional fundamental problems with each of her
grounds for relief.
Enhancement under USSG § 3C1.1 for obstruction of
contends that the court erred in applying the enhancement
under USSG § 3C1.1 for obstruction of justice, and that
counsel was ineffective for failing to object to it. But
trial counsel did object. Dkt. 20, at 1-3.
Knowles's argument that trial counsel was ineffective
because he did not advise the court of the proper evidentiary
standards applicable is frivolous, because trial counsel made
essentially the same argument that Knowles makes
that argument, especially as Knowles presents it now, is
substantively wrong. Knowles contends that the obstruction
enhancement applies only if the defendant's conduct
results in “significant and actual obstruction or
impediment” to the investigation or prosecution of the
crime. Dkt. 7, at 6-8. And, according to Knowles, the court
found that Knowles's conduct did not actually obstruct.
But this misconstrues the record. At sentencing, the court
acknowledged that Knowles's efforts to thwart the
investigation were not effective- after all, she was indicted
and pleaded guilty. Dkt. 36, at 7. But the court found that
she attempted to interfere with the investigation by posing
as a DEA agent and by encouraging a witness, JG, to lie to
law enforcement officers. Id. The obstructive
conduct itself is described in detail in the PSI, Dkt. 21,
¶¶ 31-36, 50, 58 (and others), and Knowles does not
object to the factual accuracy of the PSI's description
of the conduct.
guideline enhancement, by its terms, applies to
“attempted” obstruction, which suggests that it
is applicable in cases like this in which the defendant does
not successfully thwart the investigation or prosecution.
True, the enhancement does not apply to minor conduct
designed to avoid liability, such as fleeing from arrest or
unsworn lying to law enforcement officers. See
Application Note 5. This is the type of conduct at issue in
the cases cited by Knowles, United States v.
Hanhardt, 361 F.3d 382 (7th Cir. 2004), cert.
granted, judgment vacated sub nom. Altobello v. United
States, 543 U.S. 1097 (2005); United States v.
Griffin, 310 F.3d 1017 (7th Cir. 2002); United
States v. Wells, 154 F.3d 412 (7th Cir. 1998). But
Knowles's conduct went well beyond dishonest denials of
criminal activity. Knowles's attempt to get JG to lie is
an example of covered conduct specifically set out in
Application Note 4(B). And she impersonated a DEA agent
several times in calls to pharmacists, and making statements
to the pharmacists to encourage them not to make further
contact with actual DEA agents. Dkt. 27, ¶ 36.
plea agreement, the government and Knowles agreed to
recommend against the obstruction enhancement, so the
government could not argue in support of this enhancement of
sentencing. But the court was not bound to accept that
recommendation. Knowles actively attempted to impede the
investigation of her crimes in multiple ways, and the
application of the enhancement was proper. And even if not,
her trial counsel was not ineffective for failing to persuade
the court on the point.
Enhancement under USSG § 3B1.1 for organizer/leader
also contends that the court erred in applying the
enhancement under USSG § 3B1.1 for her organizer/leader
role in the offense. Knowles acknowledges that trial counsel
objected to the court's application of this enhancement
through written objections, Dkt. 7, at 10, and yet she
contends that trial counsel was ineffective for failing to
object to the enhancement and by failing to apprise the court
of the proper standards, id. at 16-17. Knowles cites
no authority for the notion that counsel's performance is
objectively unreasonable if he fails to reiterate an
objection that is already in the record. Knowles has failed
to develop an argument that trial counsel was ineffective on
this issue, and she waived her right to take a direct appeal
of the court's application of the enhancement.
case, Knowles argument again misconstrues the record.
Although court found that Knowles was not the leader of a
typical unified conspiracy in which all the participants
conspired with each other, the court found that Knowles was
the hub of a criminal activity with the other participants.
Dkt. 36, at 6. The PSI adequately established that there were