Tyrone NICHOLS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 94-2105
United States Court of Appeals, Seventh Circuit
Submitted Aug. 22, 1995. Decided Jan. 26, 1996.
75 F.3d 1137
We are further persuaded by the fact that the information required to determine the necessary accommodations was of the type that only Beck could provide. The missing information in this case regards Beck‘s medical condition, not the particular workings of the University. See
III.
Once an employer knows of an employee‘s disability and the employee has requested reasonable accommodations, the ADA and its implementing regulations require that the parties engage in an interactive process to determine what precise accommodations are necessary. In this case, the interactive process broke down. The employer was left to guess what actions it should take, and the employee was left frustrated that her disability was seemingly not accommodated. Liability for failure to provide reasonable accommodations ensues only where the employer bears responsibility for the breakdown. But where, as here, the employer does not obstruct the process, but instead makes reasonable efforts both to communicate with the employee and provide accommodations based on the information it possessed, ADA liability simply does not follow. Because the University was never able to obtain an adequate understanding of what action it should take, it cannot be held liable for failure to make “reasonable accommodations.” The judgment is therefore affirmed.
Tyrone Nichols (submitted), Milan, MI, pro se.
John E. Fryatt, Chris R. Larsen, Office of the United States Attorney, Milwaukee, WI, for Respondent-Appellee
Before CUMMINGS, COFFEY and ROVNER, Circuit Judges.
COFFEY, Circuit Judge.
Tyrone Nichols participated in a drug conspiracy engaged in transporting multi-kilogram quantities of cocaine between Chicago and Milwaukee. In 1989, he was convicted by a jury of conspiracy to possess cocaine with the intent to distribute, in violation of
I. Appellate Jurisdiction
The government argues that we have no jurisdiction to hear Nichols’ appeal be-
The next day (May 10), the district court entered an order dismissing the 1994 petition on the merits. Nichols failed to file a new notice of appeal. Subsequently, the parties and the court treated the appeal from the dismissal of the 1992 petition as if it were an appeal from the denial of the 1994 petition. An appearance form filed by the United States on May 13 lists the district court docket number as 94 C 383. Also on May 13, this court sent Nichols a Circuit Rule 3(b) statement concerning the payment of the docket fee, which states that the district court docket number is 94 C 383. On July 5, Nichols filed a request with the district court to allow him to proceed in forma pauperis on appeal.3 The request lists the lower court docket number as 94 C 383 and the appellate docket number as 94-2105 (this appeal). Nichols’ brief, filed on September 29, 1994, states the lower court docket number as 94 C 383. The government‘s brief, perhaps due to this confusion, fails to specify a district court docket number. The Seventh Circuit docket sheet lists the district court docket number as 94 C 383.
The government argues that because the original notice of appeal related to the 1992 petition, we are without jurisdiction to consider the merits of the 1994 petition in this appeal. The notice of appeal, filed on May 9, states an intent to appeal from the April 20, 1994 order dismissing the 1992 petition.
Technically, Nichols’ notice of appeal is defective as an appeal from the May 10 order. His subsequent filings, however, evidence an intent to appeal from the May 10 order, and this court treated the appeal as if it were an appeal from the May 10 order. In Smith, the Supreme Court held that an appellant‘s brief, filed within the time permitted
II. Ineffective Assistance of Counsel
Nichols argues that his attorney‘s failure to object to the amount of drugs attributed to him at sentencing constitutes ineffective assistance. Nichols was represented by the same attorney, Michael Chernin,4 at trial and on direct appeal; thus he is allowed to raise his ineffective assistance claim on collateral attack. See Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993). To prevail on his ineffective assistance claim, Nichols must demonstrate “(1) deficient performance and (2) prejudice.” Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). Nichols’ attorney performed deficiently if his representation “fell below an objective level of reasonableness.” Mason v. Godinez, 47 F.3d 852, 855 (7th Cir.), cert. denied, --- U.S. ---, 116 S.Ct. 125, 133 L.Ed.2d 74 (1995); see also Lockhart, 506 U.S. at 369-370, 113 S.Ct. at 842-43; Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To demonstrate prejudice, Nichols must establish that the result of his sentencing proceeding was rendered unfair or unreliable as a result of his attorney‘s error. Lockhart, 506 U.S. at 370, 113 S.Ct. at 843; Davis v. Greer, 13 F.3d 1134, 1139 (7th Cir.), cert. denied, --- U.S. ---, 115 S.Ct. 328, 130 L.Ed.2d 287 (1994). The district court denied Nichols’ petition without holding an evidentiary hearing.
Nichols argues that an evidentiary hearing is necessary to determine whether Chernin‘s failure to object to the amount of the drugs was reasonable. At sentencing, the court adopted the recommendation in the presentence report that 50 kilograms of cocaine were attributable to Nichols. The presentence report contains no supporting data explaining how it arrived at the 50-kilogram amount. In spite of this lack of detailed information, the district court never questioned the recommendation in the presentence report nor made any factual findings regarding the amount of drugs attributable to Nichols.5
Under the sentencing guidelines, Nichols is responsible not only for the drugs with which he was directly involved but also for any drugs reasonably foreseeable in connection with the criminal conduct that he agreed to undertake. See
A. Cocaine Directly Attributable to Nichols
The conspirators began trafficking in cocaine in late 1986 or early 1987, and Nichols became involved during the latter part (probably early November) of 1988.7 According to the investigation report, between September and November 1988, Nichols was one of several members of the conspiracy who was entrusted with the responsibility of transporting cash from Milwaukee to Chicago as well as transporting cocaine to Milwaukee on his return trips. Rodney Smith, one of the organizers of the conspiracy, testified that Nichols made “about five or six” trips between Milwaukee and Chicago to transport cash and cocaine.8 Smith testified that he would have his drivers bring back between four and ten kilograms of cocaine on each trip. Smith also stated that he paid Nichols approximately $200 for each trip. The record is devoid of any other information concerning these “five or six” trips in which Nichols allegedly participated.
The record contains details about only one of the instances when Nichols attempted to transport drugs between Milwaukee and Chicago. On December 1, 1988, Nichols drove from Milwaukee to Calumet City, Illinois with Ricky Shields (another co-conspirator) to purchase ten kilograms of cocaine from a
Nichols argues that the evidence is insufficient to establish that he made any trips other than the December 1 trip to Calumet City. Thus, he argues, he should have been held responsible for only 10 kilograms (plus the one ounce) of cocaine, and therefore his attorney provided ineffective assistance by neither objecting to much less questioning the 50-kilogram amount that the court adopted at sentencing. In denying Nichols’ petition, the district court merely stated that “the sentencing transcript suggests that any objection would have been futile.” District Court Order (May 10, 1994) at 4. We have examined the sentencing transcript, and we are forced to disagree, for no evidence concerning the amount of cocaine attributable to Nichols was presented at the sentencing hearing. In addition, the district court‘s statement does not contain any reasoning much less adequate analysis to assist us in understanding how the court came to the conclusion that Chernin‘s decision not to object was reasonable.
After reviewing the record, we believe that there is more than passing doubt concerning how much cocaine should have been directly attributed to Nichols. Although the December 1 trip (for 10 kilograms) is firmly established, Smith‘s testimony alone links Nichols to the other drug courier activities. If the sentencing court found Smith‘s testimony credible (no findings were ever entered in the record on this point), Nichols could conceivably be held responsible for 50 kilograms.10 However, neither the investigation report, the presentence report, nor the trial testimony reveal the specific quantities of cocaine that Nichols transported much less the specific dates or circumstances concerning the dates when the other trips supposedly occurred. Although holding Nichols directly responsible for 50 kilograms is not implausible, any attempt to do so based on the current record requires us to speculate concerning how many trips were taken and how much cocaine each trip involved. In the absence of specific factual findings on this point by the trial court, we do not find it appropriate to engage in such speculation.
B. Cocaine Reasonably Foreseeable to Nichols
Even if it is unclear whether 50 kilograms were directly attributable to Nichols, Chernin had no duty to object if he reasonably believed that 50 kilograms of cocaine were reasonably foreseeable to Nichols, but based upon the state of the record, we are not convinced that 50 kilograms were reasonably foreseeable to Nichols. The conspiracy was involved in cocaine trafficking for nearly two years (beginning in late 1986 or early 1987), but Nichols apparently participated for only one month (November 1988) before he was arrested. For the purposes of determining relevant conduct under the guidelines, Nichols is not responsible for any drug dealing
Although we are left with doubts regarding whether 50 kilograms should have been attributed to Nichols, we recognize the possibility that Chernin‘s decision not to object may, if “viewed from counsel‘s perspective at the time . . . be considered sound trial strategy.” Kubat v. Thieret, 867 F.2d 351, 360 (7th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989). Perhaps Chernin was in possession of facts not present in the record that motivated his decision not to object; for example, he may have known that the government could have proven that 50 kilograms were reasonably foreseeable to Nichols. See United States v. Livingston, 936 F.2d 333, 337 (7th Cir.1991) (failure to object to amount of drugs not ineffective assistance where additional factfinding would likely have been detrimental to the defendant), cert. denied, 502 U.S. 1036, 112 S.Ct. 884, 116 L.Ed.2d 787 (1992). But the record is devoid of evidence concerning what Chernin knew at the time.14 We agree with Nichols that further factfinding is necessary to determine whether Chernin‘s decision was reasonable. We require a complete record in order to conduct a proper appellate review concerning whether Chernin acted reasonably. United States v. Salvador, 18 F.3d 1380, 1383 (7th Cir.1994).
If the facts, once elucidated and examined in more detail, undermine the court‘s confidence in the 50-kilogram amount, Nichols was prejudiced. Nichols could have received a significantly lower sentence were he held accountable for a lesser amount of cocaine.15 Because the evidence does not conclusively demonstrate that Nichols is not entitled to relief, an evidentiary hearing is necessary. Daniels v. United States, 54 F.3d 290, 293 (7th Cir.1995). Thus, we remand Nichols’ ineffective assistance claim to the district court for an evidentiary hearing.
Finally, Nichols argues that his due process rights were violated because the district court determined that he was a minor participant16 in the conspiracy but sentenced him for the amount of drugs attributable to the entire conspiracy.17 A participant in a conspiracy—even a minor participant—is responsible for any drugs that are reasonably foreseeable to him. Under the sentencing guidelines, if a defendant who performed a minor function in a drug conspiracy “foresees the broader network of production and distribution, then he can be sentenced for the amount of drugs attributable to the broader network.” United States v. Wesson, 33 F.3d 788, 798 (7th Cir.1994), cert. denied, --- U.S. ---, 115 S.Ct. 773, 130 L.Ed.2d 668 (1995); cf.
In addition, Nichols may not, in his post-conviction motion, ask us to revisit the sentencing court‘s calculation of the amount of the drugs simply by framing it as a due process argument. Even if the sentencing court made an error in calculating his guideline range (e.g., attributed more drugs to Nichols than were reasonably foreseeable), this by itself does not constitute a violation of federal law or the Constitution that is cognizable under
IV. Conclusion
An evidentiary hearing is necessary to determine whether the failure of Nichols’ attorney to object to the amount of the drugs constituted ineffective assistance. The record presented to us is insufficient to allow us
REVERSED AND REMANDED.
ROVNER, Circuit Judge, concurring in the judgment.
I agree that a remand is required in this case. I do not join the court‘s opinion, however, because my colleagues imply that it was improper for the district court to grant Nichols a minor-participant reduction under section 3B1.2 of the Sentencing Guidelines when that issue was neither raised nor briefed in this appeal. (See ante at 1141-1142.) Indeed, the court‘s discussion of the issue is entirely gratuitous, as it affects no issue raised in this post-conviction proceeding. Moreover, I fear that the court‘s discussion will serve only to muddy this circuit‘s law concerning when members of large drug conspiracies should be considered minor participants. Although I fully agree that a drug courier is not necessarily a minor participant by virtue of his status as a courier, I cannot agree that drug couriers can never be minor participants. (See id.) Here, for example, the district court did not consider Nichols a minor participant because he was a courier; it granted the reduction because Nichols was relatively new to the narcotics operation and was less culpable than its other members. The government has never suggested that the court‘s finding was in error, but my colleagues necessarily imply that it was. On the limited record before us, I do not see how the court‘s finding was the least bit erroneous, let alone clearly so. We should have refrained from any comment on the issue.
Second, I wish to clarify one point about Nichols’ due process claim. As far as I can tell from the record, this claim was never raised on direct appeal, and it would therefore be defaulted unless Nichols could establish cause for the earlier omission. United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982). Of course, the fact that Nichols’ trial and appellate counsel may have been ineffective could provide cause for the default, but Nichols has never offered such an explanation. To this point, however, the government has bailed him out, as it has yet to argue that the due process claim was defaulted when Nichols failed to raise it on direct appeal. I therefore agree that the claim should go forward.