O R D E R
Laci Lindsey, a federal prisoner convicted of distributing methamphetamine, directly appeals her sentence on the basis that her counsel was ineffective at sentencing. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Lindsey asserts that counsel failed adequately to argue two sentencing guidelines issues or present a mitigating defense. With the deferential standard of Strickland in mind, and a barren record before us on direct appeal, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
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I
From May 2021 through April 2022, Lindsey made six sales of methamphetamine to a confidential informant in Winamac, Indiana. Three sales took place across 36 days between May and June of 2021, with Lindsey inviting the informant to her family home and selling him 86 grams, 58 grams, and 61 grams of methamphetamine. Nine months passed without further sales. Then, across 35 days between March and April of 2022, Lindsey twice more sold the informant 86.7 grams and 4 grams of methamphetamine from her home. The sixth sale took place on April 28, 2022, where Lindsey and her supplier, Michael Snyder, met the informant at a local motorcycle shop and sold him 451 grams of methamphetamine. State police later searched Lindsey's home where they found a ledger, scales, and baggies, as well as 11 grams of methamphetamine. Based on the April 28 sale, Lindsey and Synder were indicted on one count of distributing methamphetamine. See 21 U.S.C. § 841(a)(1), (b)(1)(A). Lindsey pleaded guilty and waived her right to appeal on any ground other than ineffective assistance of counsel.
Ahead of sentencing, a probation officer drafted a presentence report. The PSR calculated a base offense level of 34 based on a total drug weight of 746.7 grams, which included the methamphetamine from each sale and the methamphetamine found in Lindsey's home. See U.S.S.G. § 2D1.1(a)(5), (c)(3). The PSR, concluding that Lindsey had maintained her home "for [a primary] purpose of … distributing a controlled substance," applied a premises enhancement that increased the offense level by two points. See id. § 2D1.1(b)(12) & cmt. n.17. After other adjustments not at issue, the PSR calculated a total offense level of 31 and a criminal history category of I.1Consequently, Lindsey faced a guidelines range of 108-135 months. See id. ch. 5, pt. A. Lindsey's counsel failed to timely file a sentencing memorandum, and the district court denied his belated motion for an extension. Counsel did, however, submit written objections to the drug-weight calculation and the premises enhancement. But the objections were perfunctory, stating merely that the base offense level should be 32 and that the premises enhancement was inapplicable.
1 The PSR also noted that Lindsey was eligible for the safety valve under
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At the sentencing hearing, Lindsey told the district court that she had not received the PSR for review. The court allowed Lindsey time to review it, and after a break, Lindsey confirmed under oath that she had sufficient time to review the PSR. Counsel then expanded on his written objections to the PSR. He argued that it was unfair to use the uncharged sales as a basis for either the drug-weight calculation or the premises enhancement because Lindsey had not pleaded guilty to them, and they were not used against Snyder.
The district court overruled the objections and adopted the PSR's guidelines calculation. For the drug weight, it explained that the PSR proved Lindsey's connection to the uncharged sales, and it was irrelevant what the government "could or couldn't prove" about Snyder's involvement in those sales. The court applied the premises enhancement because Lindsey kept tools of the drug trade in her home and made nearly all of the sales there.
Lindsey then argued for a sentence of less than 63 months. Counsel highlighted Lindsey's tragic background, lack of criminal history, post-arrest cooperation with law enforcement, and more limited role in the charged sale. Lindsey also spoke, apologizing to her family, the court, and her community. The district court imposed a below- guidelines sentence of 80 months' imprisonment. Lindsey did not appeal.
II
Lindsey, acting pro se, timely moved for relief under 28 U.S.C. § 2255. Relevant here, she alleged that counsel was ineffective for ignoring her express command to appeal her sentence. She also alleged that counsel was ineffective at sentencing for failing to develop objections to the drug weight calculation and premises enhancement, submit 15 letters that Lindsey had collected speaking to her character, and provide her with the PSR for review before sentencing.
The district court agreed that counsel was ineffective for not filing a notice of appeal but disagreed that counsel was ineffective in all other respects. The court granted Lindsey time to file a direct appeal and denied her sentencing-related claims of ineffective assistance of counsel. The court also denied a certificate of appealability. Lindsey then filed a notice of appeal listing only the criminal judgment—not the judgment on her § 2255 motion.
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III
On appeal, Lindsey asserts that counsel was ineffective for failing adequately to argue that her guidelines base offense level was calculated using an excessive drug weight, and that the offense level was improperly enhanced for selling drugs from her house.2She also argues that counsel did not properly present a mitigating case or submit relevant character letters.
As we have previously observed, ineffective assistance of counsel claims typically are poorly suited for direct appeal. When arguing that counsel was ineffective, it is nearly always necessary to expand the record with information about why counsel did or did not make a particular decision. See Massaro v. United States, 538 U.S. 500, 504- 05 (2003). Without that information, a defendant asserting ineffective assistance of counsel has but a "trifling prospect of success." United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014).
Nonetheless, Lindsey is permitted to raise such claims on direct appeal. See Massaro, 538 U.S. at 508. And, consistent with the criminal judgment named in her notice of appeal, counsel affirmed at oral argument that this is Linsdey's intent.3As a result, we are limited to the direct appeal record. See Massaro, 538 U.S. at 504-05. But even if we were to consider the § 2255 proceeding, it would not change the outcome here because her allegations mirror the arguments that she now presses on direct appeal, and she developed no evidence to support them.
IV
To show that counsel was ineffective at sentencing, Lindsey must present evidence that counsel performed deficiently and that she was prejudiced by that deficiency. Strickland, 466 U.S. at 694. The performance prong requires Lindsey to prove that counsel not only failed to make a "potentially meritorious argument" but that the
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failure to do so was "egregious" or "appalling." See Elion v. United States, 155 F.4th 889, 900 (7th Cir. 2025). And the prejudice prong requires Lindsey to show that there was a
"substantial, not just conceivable" likelihood of a different sentence if her preferred argument had been made. See Harrington v. Richter, 562 U.S. 86, 112 (2011).
A. Premises Enhancement
Lindsey argues that counsel was deficient in his objection to the premises enhancement for invoking general notions of fairness rather than arguing factors specifically relevant to its application. We disagree. Lindsey's preferred arguments are not so strong that counsel's failure to raise them was egregious or appalling enough to be constitutionally deficient. See Elion, 155 F.4th at 900.
The premises enhancement applies where distributing substances was a
"primary or principal" use of the premises. U.S.S.G. § 2D1.1(b)(12) & cmt. n.17. In making that determination, a sentencing court should consider "both the frequency and significance of the illicit activities, including factors such as quantities dealt, customer interactions, keeping 'tools of the trade' and business records, and accepting payment."
United States v. Contreras, 874 F.3d 280, 284 (7th Cir. 2017) (quoting United States v. Flores-Olague, 717 F.3d 526, 533 (7th Cir. 2013)).
Lindsey first avers that counsel should have argued that the premises enhancement did not apply because her family home was primarily used as a residence, and her sales were merely incidental to that lawful purpose. But the "amount of lawful activity in a [residential] home is all but certain to exceed the amount of illegal activity"; therefore, a court should not limit its inquiry to simply weighing "the amount of legal activity against the illegal activity" but also consider the above-listed factors. Contreras,
874 F.3d at 284. Lindsey also maintains that counsel could have succeeded with an argument that the gap between the 2021 and 2022 sales weighed against application of the enhancement. She points out that the two sets of sales, each taking place over a month- long period, were separated by nine months without sales.
This argument is not so obviously a winner that counsel was deficient for not raising it. To be sure, only a few months of sales can weigh against application of the enhancement. See, e.g., United States v. Ford, 22 F.4th 687, 695 (7th Cir. 2022) (describing four months of sales, with the specific number of sales unknown, as "closer to the outer limits" of what the premises enhancement encompasses). And here, there was also a
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substantial gap between sales. But the other factors weigh strongly against Lindsey. She conducted nearly all of her sales at the home, see Contreras, 874 F.3d at 284; stored drugs there, see id.; sold large quantities out of the home, see id.; and kept tools of the drug trade there (notably scales and a sales ledger), see United States v. Zamudio, 18 F.4th 557, 563 (7th Cir. 2021). And on similar facts, where a defendant merely stored drugs in the home for two or three months but had large quantities of drugs, a scale, and a gun, we have affirmed application of the enhancement. See id.
B. Drug Weight
Lindsey next argues that counsel should have more aggressively contested the drug weight calculation, again faulting counsel for generally objecting on fairness grounds instead of drawing on factors our caselaw has identified as relevant. In Lindsey's view, the uncharged sales at her home were not relevant conduct to the charged sale at the motorcycle shop, whether as "part of the same course of conduct" or part of a "common scheme or plan." See U.S.S.G. § 1B1.3(a)(2). So, Lindsey argues, she should be held accountable only for the 441 grams sold during the charged encounter, and her base offense level should have been 32 instead of 34. See id. § 2D1.1(a)(5), (c)(4). But, here too, Lindsey does not overcome the substantial hurdle of Strickland. Whether the sales were part of the "same course of conduct" or part of a
"common scheme or plan" are "closely related" but not identical inquiries. See U.S.S.G. § 1B1.3(a)(2) cmt. n.5(B). Offenses are part of a "common scheme or plan" if they share at least one common factor, such as "common victims, common accomplices, common purpose, or similar modus operandi," and they are part of the same "course of conduct" if they are "part of a single episode, spree, or ongoing series of offenses." United States v. Zehm, 217 F.3d 506, 511 (7th Cir. 2000) (citations omitted). For drug cases, this means that "where the uncharged conduct involved the same principal, the same location, and the same drug as the offense of conviction, those comparisons render it similar enough to be relevant—even if the charged and uncharged offenses involved different participants and different amounts." United States v. Brasher, 105 F.4th 1002, 1007-08 (7th Cir. 2024) (citation modified).
Lindsey first presses that her home and the motorcycle shop were in different locations, separated by one mile, and that this should weigh against viewing the home sales as relevant conduct. But we have interpreted "same location" to include a broader geographic area, such the same city, United States v. Singleton, 548 F.3d 589, 593 (7th Cir. 2008), or even towns located twenty minutes from one another, Brasher, 105 F.4th at 1008.
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Lindsey also argues that the motorcycle-shop sale was different in kind from the sales at her home. In the charged sale, she brought in Snyder as an accomplice, her role changed from seller to middle-woman, and the sale involved a larger quantity of methamphetamine than previous sales. See United States v. Ortiz, 431 F.3d 1035, 1042 (7th Cir. 2005) (finding similar differences relevant). And she also argues that the nine- month gap between the 2021 and 2022 sales cuts against finding the earlier sales relevant conduct. See United States v. McGowan, 478 F.3d 800, 802 (7th Cir. 2007) (explaining eight-month gap between sales was "long enough to cast doubt on the relevance of the earlier [sales]").
But the sales at the motorcycle shop and Lindsey's home share enough in common that Lindsey cannot show counsel was constitutionally deficient for not raising her preferred argument. The government can overcome a lack of temporal proximity by making a "stronger showing" on the other factors. Id. (quoting Ortiz, 431 F.3d at 1041). And that strong showing is arguably present here: the sales all involved the same purchaser (the confidential informant), the same location (Winamac, Indiana), and the same drug (methamphetamine). See Singleton, 548 F.3d at 592 (concluding sales were part of same course of conduct where they involved the "same principal, the same [city], and the same drug"); United States v. Baines, 777 F.3d 959, 964 (7th Cir. 2015) (same for common scheme). Accordingly, counsel's failure to raise Lindsey's preferred argument was not constitutionally deficient.
C. Mitigating Case
Lindsey also argues that counsel was ineffective for failing to provide her with a copy of the PSR before sentencing and failing to present a mitigating case. But Lindsey cannot show that she was prejudiced by counsel's failure to provide her with a copy of the PSR before sentencing. The court gave Lindsey time at the sentencing hearing to review the PSR, and she swore under oath that she had sufficient time to review it. We have previously relied on such assertions to reject a claim that counsel was ineffective for failing to fully review the PSR with a defendant. See United States v. Trussel, 961 F.2d 685, 692 (7th Cir. 1992). Moreover, to establish that she was prejudiced by counsel's failure to provide her earlier with the PSR, Lindsey would need to show that the probability of a different sentence is "substantial, not just conceivable."
See Richter, 562 U.S. at 112. But Lindsey does not allege what she would have done with more time, so she has not established that she was prejudiced by counsel's action.
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Further, Lindsey's counsel did present a case in mitigation, and Lindsey cannot show that she was prejudiced by that presentation. Counsel argued that Lindsey should receive a below-guidelines sentence, pointing out Lindsey's tragic background and productive life until her arrest. Lindsey's allusion to a superior mitigation defense, without specifics of what counsel or Lindsey herself would have said, is too nebulous and conclusory to show a substantial likelihood of a different sentence. See id.
D. Sentencing Materials
Finally, Lindsey argues that counsel was ineffective for failing to submit a sentencing memorandum and file character letters.
But again, Lindsey cannot show that she was prejudiced by counsel's failure to submit a written memorandum. Counsel argued at the sentencing hearing for a below- guidelines sentence, highlighting mitigating factors. Lindsey does not explain why a written memorandum would have resulted in a substantially different sentence. See id. Similarly, Lindsey cannot show prejudice from counsel's failure to submit character letters. The record does not contain any information about the letters' contents, and Lindsey's bare assertion that the letters were "relevant" to her sentencing is insufficient to show a reasonable probability that the outcome would have been different but for counsel's failure to present them. See Wiggins v. Smith, 539 U.S. 510, 534-35 (2003).
AFFIRMED
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