Lawyers Can Be Wrong But Still Be Good, 7th Says – Update for October 2, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WRONG DOESN’T MEAN INEFFECTIVE, 7^TH CIRCUIT SAYS

Otis Elion pleaded guilty to distributing meth in 2017. The district court held that he qualified as a Guidelines Chapter 4B “career offender.” Otis’s attorney did not object, because after researching whether his prior convictions qualified as predicate offenses for career offender, she concluded that challenging that sentencing enhancement would fail.

In his 28 USC § 2255 petition, Otis argued his lawyer provided ineffective assistance under Strickland v. Washington by not challenging his “career offender” status. The district court agreed that he was prejudiced because he really didn’t qualify as a “career offender,” but that his lawyer – although wrong – was not ineffective.

With several prior drug convictions, Otis may have been a “career offender” under USSG § 4B1.1(a). The drug convictions might have been considered to be “controlled substance offenses, “defined as federal or state offenses that “prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance)” or possession with intent to engage in those actions, punishable by imprisonment for a term exceeding one year.”

One of Otis’s priors was a 2006 federal conviction for distribution of crack cocaine. Before that was a 2000 conviction for delivery of a look-alike substance. The oldest was a 1999 conviction for delivery of a look-alike substance within 1,000 feet of public housing property. The Presentence Report concluded that those convictions qualified Otis for career offender.

His attorney reached the same conclusion, so she did not object to the application of the enhancement at Otis’s sentencing. Instead, she argued Otis ‘s health and life circumstances justified a mitigated sentence. The district court sentenced Otis as a “career offender” to 167 months.

To Otis, neither his 1999 nor his 2000 state convictions was controlled substance offense because look-alike substances made the Illinois statute broader than the Guidelines, and his lawyer’s failure to make that argument violated his 6^thAmendment right to effective assistance of counsel. Using the modified categorical approach, the court agreed the Illinois use of “look-alike” substance made it different from the Guideline’s use of counterfeit substance.

Otis’s attorney had wrongly concluded that “counterfeit” and “look-alike” were a categorical match. But the 7^th Circuit said last week that a defense attorney does not need to forecast changes in the law. “Failure to object to an issue that is not settled law within the circuit is not unreasonable by defense counsel… A defense attorney’s choice not to make a potentially meritorious argument is not automatically deficient performance, even if it stems solely from a legal error.” 

Strickland holds that the “proper measure of attorney performance remains simply reasonableness under prevailing professional norms,” the 7^th said. Strickland necessarily permits mistakes that are reasonable. Only when the defense attorney’s error is so appalling that he can no longer be considered “counsel” for his client is his performance deemed deficient… The giving of legal advice that later is proven to be incorrect, therefore, does not necessarily fall below the objective standard of reasonableness.

If an attorney declines to make an argument that no court has accepted and no other attorney has made, yet which later succeeds, it is doubtful the attorney’s omission was unreasonable under prevailing norms of practice. Otis’s lawyer did the necessary work, the 7^th observed. “She researched the categorical approach arguments, found the applicable caselaw, and analogized that precedent to Otis’s case. When the caselaw provided no answer, she used statutory interpretation and relied on her extensive experience. She just reached a different conclusion than the Circuit did —a  conclusion on which reasonable minds could disagree.”

Elion v. United States, Case No. 24-3014, 2025 U.S. App. LEXIS 24770 (7th Cir. September 24, 2025)

~ Thomas L. Root