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USA v. Spence, 05-1848.  Spence appeals his criminal contempt conviction alledging ineffective assistance of counsel on direct appeal.  The 7th Circuit does not like inneffective assistance on direct appeal.

In short, Spence was convicted for failing to comply with a court order requiring Spence’s hand writing and fingerprints.  Spence’s attorney initially told him not to comply with the court’s order because the order was issued post indictment.  Spence’s attorney later corrected that advice based on legal research. 

Spence refused to comply with the court’s order despite the change in his lawyer’s advice. Using Strickland analysis, the court finds that Spence’s attorney was not ineffective.  In effect, the 7th Circuit stated that Spence’s decision to disregard the court’s order after his attorney’s change in legal advice was Spence’s error and not his attorneys.

USA v. Marty, 05-3297.  Marty contests the district court’s drug quantity finding.  Drug quantity calculations by the district court are reviewed for clear error by the 7th Circuit.  The 7th Circuit states that the Marty’s alternative drug quantity calculation is not enough to show clear error.  In fact, the alternative drug quantity calculation shows a clear error doe not exist. 

Interestingly, the government agreed with Marty’s drug quantity calculation.  However, this agreement is not binding on the district court.  The plea agreement clearly stated that the district court was not bound by the agreement between the government and Marty. 

USA v. Miller, 05-2978.  Miller appeals the district court’s finding on a motion to suppress statements.  Essentially, Miller was given an opportunity to be released and cooperate, or to be detained and remain silent.  Marty was released, and than Marty refused to cooperate.  The 7th Circuit finds that Marty can’t complain that his voluntary choice to remain free rendered the statement involuntary. 

Further, the district court reduced Marty’s sentence under 3553 because the district court did not like the statutory and guidelines 100-1 crack to cocaine ratio.  The 7th Circuit stated in dicta that this is not a basis for a sentence reduction under 3553.  The 100-1 ratio is binding on the district court and if the government cross appealed, Marty’s sentence would be higher.

For more about attorney Michael J. Petro, visit