Lance Foster v. United States
735 F.3d 561
7th Cir.2013Background
- Foster was indicted on a conspiracy charge (21 U.S.C. §846) and a distribution charge (21 U.S.C. §841); both initially carried a 10-year mandatory minimum. Appointed counsel Visvaldis Kupsis advised pleading given strong government evidence, but Foster repeatedly refused and chose to go to trial.
- Two plea agreements were proposed: the first required pleading to conspiracy with responsibility for 1.5 kg crack and a weapons enhancement; the second allowed pleading to distribution but still required the same quantity and weapons enhancement and capped sentence near 235–240 months. Foster rejected both because he would not stipulate to quantity/weapons and said he would face trial even if it risked life imprisonment.
- Ten days before trial the government filed a 21 U.S.C. §851 information alleging a prior felony drug conviction, raising the mandatory minimum on both counts from 10 to 20 years. Kupsis had not warned Foster that §851 might be filed.
- At trial Foster was acquitted of conspiracy but convicted of distribution. The presentence report attributed only 127.3 grams of crack and no weapons enhancement, resulting in lower guideline offense level, but the §851 information compelled a 20‑year (240‑month) mandatory sentence.
- Foster filed a §2255 motion claiming ineffective assistance because Kupsis failed to advise him about the possibility of a §851 filing; the district court held an evidentiary hearing, credited Kupsis’s testimony (including Foster’s remark “20 years is life”), found Foster not credible, and denied relief for lack of prejudice. Foster appealed.
Issues
| Issue | Foster's Argument | Kupsis/Government's Argument | Held |
|---|---|---|---|
| Whether counsel’s failure to warn Foster that a §851 information might be filed constituted ineffective assistance of counsel that prejudiced Foster’s decision to reject plea offers | Had counsel warned him about §851, Foster would have accepted a plea and avoided the 20‑year mandatory sentence | Foster was told of both plea offers, refused to stipulate to quantity/weapons, and repeatedly rejected any plea that would yield ~20 years ("20 years is life") | Court assumed possible deficiency but held Foster failed to prove prejudice; affirmed denial of §2255 relief |
| Whether the district court’s credibility findings were clearly erroneous | Foster argued his testimony that he would have pled was credible | District court credited counsel’s testimony over Foster’s self‑serving statement | Appellate court gave deference to district court credibility determination and found no clear error |
| What evidentiary standard proves prejudice where defendant claims he would have accepted a plea but for counsel’s error | Foster relied on his own sworn statement at an evidentiary hearing | Government relied on objective record showing Foster consistently refused plea terms near 20 years | Court applied Lafler/Strickland reasonable‑probability standard and required more than Foster’s uncorroborated, non‑credible statement to show prejudice |
| Applicability of precedents requiring objective evidence beyond a defendant’s self‑serving statement | Foster argued his testimony sufficed | Government invoked circuit authority holding lone self‑serving statements are insufficient | Court noted Toro rule’s shaky footing but affirmed outcome based on credibility and record; did not rely solely on Toro rule |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes prejudice and deficient performance standard for ineffective assistance)
- Lafler v. Cooper, 132 S. Ct. 1376 (2012) (ineffective-assistance framework applied to rejected plea offers)
- Sorich v. United States, 709 F.3d 670 (7th Cir. 2013) (standard of review: factual findings for clear error, legal conclusions de novo)
- Gant v. United States, 627 F.3d 677 (7th Cir. 2010) (district court credibility findings entitled to exceptional deference)
- Toro v. Fairman, 940 F.2d 1065 (7th Cir. 1991) (held that lone self‑serving statement may be insufficient to show prejudice)
- Julian v. Bartley, 495 F.3d 487 (7th Cir. 2007) (discusses need for corroborating evidence of plea‑acceptance claim)
- Paters v. United States, 159 F.3d 1043 (7th Cir. 1998) (distinguishing Toro where other evidence of prejudice existed)
- Johnson v. Duckworth, 793 F.2d 898 (7th Cir. 1986) (discusses insufficiency of uncorroborated declarations in ineffective-assistance context)