author: SYKES, Circuit Judge.

text:
    Cortez JONES, Petitioner-Appellee, v. Victor CALLOWAY, Respondent-Appellant.
    No. 15-1174
    United States Court of Appeals, Seventh Circuit.
    Argued January 19, 2016
    Decided November 15, 2016

      Barry A. Spevack, Attorney, Monico & Spevack, Chicago, IL, for Petitioner-Ap-pellee.
    Gopi Kashyap, Erica Seyburn, Attorneys, Office of the Attorney General, Chicago, IL, for Respondent-Appellant.
    Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
   SYKES, Circuit Judge.

After a bench trial in Cook County Circuit Court, Cortez Jones was convicted of murder for the 1999 shooting death of Friday Gardner. In his federal habeas petition, see 28 U.S.C. § 2254, Jones alleged that his trial counsel was constitutionally ineffective in violation of the rule of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The factual basis for this claim was his attorney’s failure to present the testimony of Michael Stone, a codefendant who was tried separately. Stone confessed to the crime and has consistently maintained that he—and he alone—shot Gardner. Stone’s story matched the physical evidence and some (though not all) of the eyewitness testimony. Indeed, a jury convicted Stone of murdering Gardner before Jones’s bench trial began, and Stone was willing to testify for Jones had he been asked.

But Jones fumbled his Strickland claim in state court by failing to submit an affidavit from Stone, as Illinois law requires. The state appellate court found the claim procedurally defaulted but also rejected it on the merits based on the existing record, holding that the failure to call Stone was a matter of “trial tactics or strategy” and thus immune from constitutional scrutiny.

Ruling on Jones’s § 2254 petition, the district court excused the procedural default based on new evidence of Jones’s actual innocence—namely, Stone’s testimony. After an evidentiary hearing, the judge concluded that the state appellate court unreasonably applied Strickland and that trial counsel’s failure to present Stone’s testimony was constitutionally ineffective representation. The judge accordingly granted the petition and ordered Jones retried or released.

We affirm. The judge’s decision to excuse the procedural default was sound, as was his merits ruling. Trial counsel’s failure to call Stone cannot reasonably be classified as a mere matter of trial strategy within the range of objectively reasonable professional judgments. Omitting the available testimony of the man who admits to being the lone shooter was both constitutionally deficient performance and prejudicial.

I. Background

A. The Murder of Friday Gardner

Around midday on September 12, 1999, three men wearing masks broke into a second-floor apartment at 6102 South May Street on Chicago’s south side. Michael Stone shared the apartment with his cousins Latonya Cheeks, Felicia Anderson, and Michella Anderson. Corey Grant, Felicia’s fiancé, also lived there. Grant and-Michella were home when the break-in occurred, and one of the masked men beat Grant with a baseball bat. The intruders then stole some jewelry, a bag of marijuana, and $200 in cash before fleeing the apartment.

Stone and Felicia Anderson .arrived home soon after the assault and robbery. Stone called Michael • Carter, his half-brother, and told him what happened. Carter, whose nickname is “Junior,” was upset by the news. Driving in his car not far from the May Street apartment, Carter spotted his friend Cortez Jones, the petitioner, and told him about the robbery. Jones hopped into the car with Carter and the two men drove to the May Street apartment. .

Carter introduced -Jones to the others and the group discussed the identity of the assailants. Suspicion fell on Friday Gardner, a cousin and frequent houseguest of Rena Phillips, who lived in the apartment across the hall. It’s not clear who first suggested that Gardner was involved— Carter, Felicia, Michella, or Jones—but everyone assumed the perpetrators came from the neighborhood. And they all knew that Gardner kept a van parked on the street outside the May Street apartment.

Carter and Jones then left the- apartment, located Gardner’s van, broke into it, and stole the radio. This was apparently an effort to lure Gardner onto the street. Jones denies participating in this theft, but it’s undisputed that he and Carter then left the neighborhood together and did not return until around nine or ten o’clock that evening in response to a page from Stone.

At about ten o’clock, Gardner appeared on the Street outside the May Street apartment. Carter and Jones approached him and got into an argument so heated that Stone, who was still in the second-floor apartment, heard the commotion from the window. The argument also drew the attention of many neighbors.

Stone kept a .380-caliber pistol in the basement of the apartment building. As the situation on the street intensified, he retrieved the gun and went outside to watch the argument from the alley. Stone maintains that he saw Gardner draw and aim a handgun at Carter and Jones, so he approached from the alley and fired his .380 pistol at Gardner three times. He says he shot Gardner to protect Carter, his half-brother. Two shots hit their mark: Gardner died at the scene with two .380-caliber bullets in his abdomen. Three .380-caliber shell casings were found near the body. No gun was found on Gardner’s person, but trial testimony suggested'that someone may have removed one from his hand after the shooting.

Stone, Carter, and Jones fled the scene, Carter and Jones were arrested the next day, and Stone turned himself in to Chicago police the following day. Stone immediately confessed to shooting Gardner using his .380-caliber handgun. He said he did it in defense of his half-brother. The .380 pistol was never recovered; Stone said he threw it in some bushes as he fled the scene.

B. Trial and State Postconviction Proceedings

All three men were charged with first-degree murder. The charges against Stone and Carter were tried jointly to a jury. The prosecution’s theory was that both Stone and Carter fired shots at Gardner. As an' alternative theory against Carter, the prosecutor argued that if Stone alone shot Gardner, then Carter was responsible under an accountability theory because he planned the crime with Stone and helped lure Gardner onto the street. Stone testified in his own defense, telling the jury that he shot Gardner with his .380 handgun to prevent him from shooting Carter. The jury found both defendants guilty. They were sentenced to 30 years in prison. See Carter v. Duncan, 819 F.3d 931, 935-37 (7th Cir. 2016).

Jones’s case was tried separately, and he opted for a bench trial. The prosecution’s sole theory at his trial was that Jones was the shooter; accountability theory played no part. The prosecution’s case rested on testimony from several eyewitnesses, but their accounts diverged in significant respects.

As we’ve noted, Gardner’s cousin Rena Phillips lived in the apartment across the hall, from Stone and his cousins. Her son Antonio lived with her, and both Phillipses testified that they saw Jones shoot Gardner at very close range. Antonio said he watched the argument from his apartment window and saw Jones pull out a gun; he said Carter also had a gun. He testified that Jones was so close to Gardner that he had to take a step back in order to extend his arm and fire the first shot. He estimated-that Jones’s gun was only about an inch away from Gardner when he pulled the trigger. Antonio testified that after the first shot was fired, he ran down the stairs and heard two more shots as he ran. When he reached the street, he saw Carter and Jones running away from the scene.

Rena Phillips said she and her boyfriend Paul Cálmese had just pulled up outside the building when the confrontation started. Tommy Gaston, a friend of Gardner’s, was also on the street that night. Rena testified that she saw Jones shoot Gardner twice at close range. .She also said Carter had a gun and fired shots at Gardner.

Gaston’s version of events was quite different. He said he didn’t see a gun .in Jones’s hand but thought he might have had one in his coat pocket and may have fired a shot through his coat. Gaston’s testimony conflicted with the account he gave on the night of the shooting. Back then he told the police that he saw Stone emerge from the alley and shoot Gardner. When questioned about this discrepancy at trial, Gaston denied that he changed his story.

The only eyewitness with no connection to either the victim of the three defendants was Cedric Taylor, a Chicago police officer. Officer Taylor was on duty and standing with his partner in front of a police station about a block west of the shooting. The station was across from the alley where Stone watched the argument unfold and from which he said he emerged and fired three shots at Gardner. Officer Taylor testified that as he glanced toward the alley, he saw muzzle flashes and heard two gunshots, then heard three more shots much louder than the first two. He ran toward the gunfire and saw two men ducking down behind a Cadillac and two men running away from the scene. One of the fleeing men. carried a dark object that Officer Taylor said could have been a handgun. Officer Taylor and his partner gave chase but couldn’t catch up with the fleeing men..

The defense eyewitnesses gave still another—and quite different—account. Latonya Cheeks, Stone’s cousin and apartment-mate, said she heard Carter and Jones arguing with Gardner- and saw Gardner draw a gun. She testified that Stone came running from the alley and shot Gardner; she said she heard three shots. Her trial testimony conflicted with her grand-jury testimony in one respect: In the grand jury, Cheeks said that Gardner was unarmed. Michella Anderson, another Stone cousin and apartment-mate, told the court that she saw someone come from the alley and shoot Gardner and that Jones was not the shooter. She also testified that she saw Gardner with a gun. Neither Stone nor Carter testified.

The physical evidence introduced at trial was limited. Three ,380-caliber shell casings were found at the scene near Gardner’s body. No fingerprints were recovered from the casings. Gardner died from two gunshot wounds to the abdomen. Two ,380-caliber bullets were recovered from his body, and forensic ' analysis established that the bullets were fired from the same firearm. The forensic and autopsy evidence was inconsistent with a shooting at close range, contradicting the testimony of Rena and Antonio Phillips.

In closing argument Jones’s attorney told the court that the physical evidence and eyewitness accounts were too widely divergent to support a finding of guilt beyond a reasonable doubt. Counsel also noted the jury’s verdict in the Stone/Carter trial and pointed out that the prosecution had dramatically changed its theory of the case. The judge found Jones guilty and imposed a sentence of 30 years in prison.

The Illinois Appellate Court affirmed on direct appeal. Jones then pursued state postconviction relief alleging that the failure to call Stone as a defense witness at trial was constitutionally ineffective under Strickland. (He raised other arguments as well; none are relevant here.) The postcon-viction court summarily dismissed the petition because Jones had not included an affidavit from Stone, as Illinois law requires. See 725 III. Comp. Stat, 5/122-2. The Illinois Appellate Court held that this procedural violation was independently enough to affirm. People v. Jones, No. 1-05-1212, at 6, 368 Ill.App.3d 1218, 341 Ill.Dec. 758, 931 N.E.2d 366 (2006) (unpublished order) (holding that the procedural violation “alone justifies the summary dismissal of defendant’s petition”).

But the court went on to apply Strickland based on the existing record, holding that “counsel’s failure to call codefendant Stone' as a witness is a matter of trial tactics or strategy, which is purely a matter of professional judgment and cannot support a claim of ineffective representation.” Id. at 7. The court said that strategic decisions are immune from constitutional scrutiny unless counsel “entirely fails” to subject the prosecution’s case to adversarial testing. Id. at 7-8. The court also held that the failure to call Stone was not prejudicial for two reasons: (1) It was “highly likely” that Stone would have invoked his Fifth Amendment right not to testify; and (2) “several eyewitnesses” testified that Jones shot the victim, so “the outcome of the trial would not have been different had counsel attempted to present the testimony of codefendant Stone.” Id. at 8.

The decision was not unanimous. The dissenting judge concluded that Jones had “raised the gist of a meritorious claim of ineffective assistance” that warranted further development on remand. Id. at 9 (Wolfson, J., dissenting). The Illinois 'Supreme Court denied review.

C. Jones’s § 2254 Petition

Jones then moved his case to federal court. His § 2254 petition reprised the Strickland Claim stemming from his trial counsel’s failure to call Stone as a witness. The district judge found the claim procedurally defaulted but held an evidentiary hearing to give Jones an opportunity to satisfy the miscarriage-of-justice exception to procedural default. This required a showing of actual innocence. See generally Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

The judge heard testimony from several witnesses* who had not testified at Jones’s trial. Felicia Anderson testified that she saw Gardner draw a gun during the argument and thought it was Carter who shot him. She said she ran from the scene screaming, “Junior shot him.- Junior shot him.” (Recall that Carter’s nickname is Junior.) But she admitted that she only-heard the gunshots and did not actually see Carter fíre a gun. Paul Cálmese, Rena Phillips’s boyfriend, testified that he saw Stone approach from the alley but also saw Jones pull out a gun, though he did not see him, fire it. Carter testified that Stone was the only person to fire a gun and there was no plan to kill Gardner.

Most crucially, Stone testified that he— and he alone—shot Gardner. He explained that as the argument on the street escalated, he retrieved his .380 handgun from the basement and positioned himself in the alley to watch the confrontation. He said that he saw Gardner pull a gun from his front waistband, so he emerged from the alley and fired his .380 at Gardner three times to prevent him from shooting Carter, his half-brother. Stone confirmed that he turned himself in two days later and confessed in full to the police. He also testified that he and Jones weren’t friends, he didn’t plan the killing with Carter or Jones, and he never saw Jones with a gun that night.

The final important witness was Brian Dosch, Jones’s trial attorney. Dosch testified that he decided not to call Stone as a witness at Jones’s trial because the police report summarizing his confession wasn’t consistent about whether he actually saw Gardner draw a gun before he fired the three shots.

The judge credited Stone’s testimony, reviewed it against the entire record, and concluded that it satisfied the actual-innocence gateway to a merits review of the procedurally defaulted Strickland claim. Moving to the merits, the judge found Stone’s testimony entirely consistent with his prior testimony at his own trial. Stone’s testimony was also consistent with the physical evidence and the testimony of some of the eyewitnesses; in contrast, the testimony of the prosecution’s eyewitnesses was inconsistent with the physical and forensic evidence. The judge could conceive of no justification for omitting Stone’s testimony at trial.

Accordingly, proceeding first under the deferential standard of § 2254(d), the judge held that the Illinois Appellate Court unreasonably applied Strickland by treating counsel’s failure to call Stone as a mere strategic or tactical trial decision and declaring it immune from constitutional scrutiny. Next, reviewing the claim independently under § 2254(a), the judge concluded that counsel’s performance was both constitutionally deficient and prejudicial. The judge accordingly granted the habeas petition and ordered Illinois to retry its case against Jones or release him from custody.

Illinois asks us to reverse that decision.

II. Analysis

We review the district court’s factual findings in a habeas ruling for clear error; legal conclusions get independent review. Coleman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014).

A. Procedural Default and Actual Innocence

Section 2254(d) sets a high bar for state prisoners seeking federal habeas review. A federal court may not grant a state prisoner’s habeas petition unless the prisoner establishes that the state court’s adjudication of his claim was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” § 2254(d)(1). At issue here is the Sixth Amendment right of the criminal accused to the effective assistance of counsel as interpreted by the Supreme Court in Strickland.

To obtain a merits review of his claim, however, Jones had to clear an additional high hurdle: procedural default. As we’ve explained, the state postconviction court dismissed Jones’s Strickland claim because he failed to include a supporting affidavit from Stone or explain why an affidavit was unavailable. Illinois law imposes this procedural requirement, see 725 III. Comp. Stat. 5/122-2, and the Illinois Appellate Court affirmed the lower court’s reliance on it. The appellate court noted that Jones was required to, but did not, submit an affidavit from Stone .indicating that “he would have been willing to testify” and “what the substance of that testimony would have been.” This procedural violation alone, the court held, justified the summary dismissal of the Strickland claim.

Illinois courts regularly enforce the affidavit rule. See, e.g., Thompkins v. Pfister, 698 F.3d 976, 987 (7th Cir. 2012); see also People v. Collins, 202 Ill.2d 59, 270 Ill.Dec. 1, 782 N.E.2d 195, 198 (2002). So the Strickland claim is procedurally defaulted. See Thomas v. Williams, 822 F.3d 378, 384 (7th Cir. 2016) (explaining the two forms of procedural default, noncompliance with state procedural rules and failure to exhaust state remedies). And procedural default ordinarily precludes federal habeas review. Id.

A state prisoner can overcome a procedural default by establishing cause for the default and actual prejudice or by showing that the federal court’s failure to address his claim on the merits would work a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536-37, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); Schlup, 513 U.S. at 314-15, 115 S.Ct. 851. This case concerns the miscarriage-of-justice path to merits review.

The miscarriage-of-justice exception to procedural default requires the petitioner to make a convincing showing of actual innocence. McQuiggin v. Perkins, — U.S. —, 133 S.Ct. 1924, 1929, 185 L.Ed.2d 1019 (2013); Schlup, 513 U.S. at 314-15, 115 S.Ct. 851. To pass through the actual-innocence gateway to a merits review of a procedurally barred claim, the petitioner must have “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy'eyewitness accounts, or critical physical evidence—that was not presented at trial,” Schlup, 513 U.S. at 324, 115 S.Ct. 851, and must persuade the district court that it is “more likely than not that no reasonable juror would have convicted him in light of the new evidence,” id. at 327, 115 S.Ct. 851.

“New evidence” in this context does not mean “newly discovered evidence”; it just means evidence that was not presented at trial. Id. at 322, 324,115 S.Ct. 851. And because an actual-innocence claim “involves evidence the trial jury did not have before-it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record.” House, 547 U.S. at 538, 126 S.Ct. 2064. The inquiry considers “all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial.” Id. (internal citations and quotation marks omitted). The court must “make a probabilistic determination about what reasonable, properly instructed jurors would do.” Schlup, 513 U.S. at 329, 115 S.Ct. 851.

The actual-innocence standard isn’t deferential to the verdict, like the legal standard for evaluating challenges to the sufficiency of the evidence. Id. at 330, 115 S.Ct. 851 (“[T]he mere existence of sufficient evidence to convict [is not] determinative ... .”); see also Hayes v. Battaglia, 403 F.3d 935, 940 (7th Cir. 2005) (Flaum, J,, concurring) (“Unlike a review of the sufficiency of the evidence which focuses on whether "a rational juror could have convicted, a habeas court considering actual innocence ... determines] whether rational jurors would have convicted.”).

We have one last important doctrinal point: Procedural actual-innocence claims like, this one are evaluated differently than substantive claims of actual innocence. Schlup, 513 U.S. at 316-17, 115 S.Ct. 851. In a substantive actual-innocence claim, the petitioner’s new evidence must be strong enough to convince the court that his sentence is constitutionally intolerable “even if his conviction was the product of a fair trial.” Id. at 316,115 S.Ct. 851. In a procedural—or “gateway”—actual-innocence claim, the petitioner’s new evidence need only establish sufficient doubt about his guilt to justify a conclusion that his sentence is a miscarriage of justice “unless his conviction was the product of a fair trial.” Id. Put slightly differently, a petitioner satisfies the gateway standard if his new evidence raises “sufficient doubt about [his] guilt to undermine confidence in the result of the trial without the assurance that the trial was untainted by constitutional error.” Id. at 317, 115 S.Ct. 851.

The district judge credited Stone’s testimony and concluded, based on the entire record, that the gateway actual-innocence' standard was met. We defer to the judge’s credibility determination, see Coleman, 739 F.3d at 350, and agree that the new evidence of actual innocence warrants a merits review of Jones’s Strickland claim.

In brief, the decisive evidentiary points are these: Stone turned himself in two days after the crime and immediately confessed to shooting Gardner. From the beginning he has consistently maintained that he alone shot Gardner and that he did not plan the crime with either Carter or Jones. He says he used his .380 pistol and fired three times. That account matches the physical and forensic evidence; the accounts of. the prosecution’s eyewitnesses do not. His testimony is also corroborated at least in part by some of the eyewitnesses (e.g., Cheeks, Officer Taylor, and Cálmese). And Stone’s testimony in the district court was entirely consistent with his testimony at his own trial.

The eyewitness testimony, moreover, was all over the map. No two witnesses gave the same account of the shooting. Antonio and Rena Phillips gave roughly similar descriptions, but them version df events—that Jones shot Gardner at very close range—is directly contradicted by the physical evidence, which showed no signs of a close-range shooting. Gaston, a third prosecution eyewitness, said only that he thought Jones had a gun in his coat pocket and may have fired a shot through his coat. But he told the police on the night of the shooting that he saw Stone emerge from the alley and shoot Gardner, so his testimony is at best a wash. The remaining eyewitnesses at least partially corroborate Stone’s testimony.

In short, we agree with the district judge that the new evidence, considered in light of the entire record, raises sufficient doubt about Jones’s guilt to undermine confidence in the verdict without the. assurance that it was untainted by constitutional error. Stone’s testimony, together with the other new evidence presented at the hearing, raises reasonable doubt about Jones’s guilt. Had this evidence been presented, we think it’s more likely than not that Jones would have been acquitted.

■ Illinois resists this- eoficlusion by analogizing this case to Coleman, but the analogy is superficial at best. In Coleman, as here, an Illinois prisoner serving a sentence for murder tried to pass through the actual-innocence gateway to a merits review of his procedurally defaulted Strickland claim. 739 F.3d at 347-49. That’s where the similarities end.. The new evidence in Coleman consisted largely of the testimony of the codefendant; the district court rejected the claim because the code-fendant had serious credibility problems. Id. at 350.We affirmed, noting that the codefendant had demonstrated an “inability to present a consistent account of his whereabouts on the day of the murder,” told several versions of his involvement in the murder, and; attested to, facts that did not match- the physical evidence at the scene. Id. The codefendant was also the petitioner’s friend, which undercut the credibility of his testimony. Id.

This casé is not comparable. Here, the district judge explicitly credited Stone’s testimony, finding it consistent over 15 years and multiple-tellings, and consistent with the physical and forensic evidence. As we remarked in Coleman, “[w]e almost never disturb this type of finding by the district court.” Id. “[Djeterminations of witness credibility can virtually never be clear error.” United States v. Stewart, 536 F.3d 714, 720 (7th Cir. 2008) (quotation marks omitted).

Illinois also argues that even if the new evidence casts serious doubt on its theory that Jones was the shooter, his actual-innocence claim must be rejected because he is guilty under an accountability theory. This argument is new in federal court; the prosecutor’s narrative at trial was that Jones shot Gardner twice at close range. Criminal liability on an accountability theory requires proof of shared criminal intént or participation in a common criminal design. See People v. Redmond, 341 Ill.App.3d 498, 275 Ill.Dec. 973, 793 N.E.2d 744, 755 (2003). To convict Jones of Stone’s act would have required evidence that they shared a criminal intent or participated in a common criminal design, and that’s lacking here. At most, the evidence places all three codefendants at the scene and suggests that they all suspected Gardner was involved in the robbery and beating at Stone’s apartment and were upset about it. But the record does not support Illinois’s new theory that Jones and Stone schemed to kill Gardner.

To the contrary, Stone has consistently maintained that he acted alone and there was no plan to kill Gardner. The judge found his testimony credible, consistent over 15 years of retelling, and corroborated by the physical and forensic evidence and the testimony of at least some of the eyewitnesses. Carter likewise testified that there was no plan to kill Gardner. The judge rejected Illinois’s new accountability theory as unconvincing, and we see no reason to disturb that ruling.

B. Strickland, § 2254(d), and § 2254(a)

Moving now to the merits of the Strickland claim, our first question is whether Jones has satisfied the demanding requirements of § 2254(d). That requires us to decide whether the Illinois Appellate Court’s decision was “contrary to” or “an unreasonable application of’ clearly established federal law—here the Sixth Amendment right of the accused to effective counsel as interpreted in Strickland. The district judge held that Jones met the requirements of § 2254(d), and again we agree.

The familiar Strickland formula - requires the petitioner to establish that his attorney’s performance was deficient—that is, objectively unreasonable—and the deficient performance was prejudicial. 466 U.S. at 687-88, 104 S.Ct. 2052. The first step in this framework asks “whether, in light of all the circumstances, the identified acts or.omissions were outside the wide range of professionally competent assistance.” Id, at 690, 104 S.Ct. 2052. The prejudice inquiry asks whether “there is a reasónable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,104 S.Ct. 2052.

At Strickland’s first step, the petitioner will often need to overcome a “strong presumption” that “the challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (internal quotation marks omitted). In Jones’s case the state appellate court classified the defense attorney’s decision not to call Stone as a mere choice of trial strategy and held that decisions of this sort are “generally immune” from scrutiny unless counsel “entirely fail[ed]” to subject the prosecution’s case to “meaningful. adversarial testing.” That was an unreasonable application of Strickland for several reasons.

First, the Strickland presumption protects actual strategic trial judgments. “To avoid the inevitable temptation to evaluate a lawyer’s performance through the distorting lens of hindsight, Stñckland establishes ' a deferential presumption that strategic judgments made by defense counsel are reasonable.” Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012). “But the presumption applies only if the lawyer actually exercised judgment.” Id. A court adjudicating a Strickland ciaim can’t just label a decision “strategic” and thereby immunize it from constitutional scrutiny. In Jones’s case the state appellate court had no basis in the record to classify counsel’s failure to call Stone as a strategic trial choice. Id. (“[0]n the limited record before the state courts, it was unreasonable to find summarily that trial counsel chose not to call Jones and Taylor as a matter of strategy.”). Because there was no postconviction hearing in state court, Dosch’s actual reason for omitting Stone was then unknown.

As a general matter, a defense attorney’s failure to present a material exculpatory witness of which he was aware qualifies as deficient performance. See id. at 848-49; Toliver v. Pollard, 688 F.3d 853, 862 (7th Cir. 2012); Goodman v. Bertrand, 467 F.3d 1022, 1029 (7th Cir. 2006); Washington v. Smith, 219 F.3d 620, 628-29 (7th Cir. 2000). There’s no doubt that Stone’s testimony was exculpatory and highly material. Without an explanation from Dosch about his reason for not calling Stone, there was no factual foundation for the state appellate court’s determination that he omitted Stone as a matter of trial strategy.

Second, a defense attorney’s decisions “are not immune from examination simply because they are deemed tactical.” U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, 249 (7th Cir. 2003). The state appellate court treated the Strickland presumption as essentially unrebuttable, That too was clearly contrary to Strickland.

The state court’s evaluation of the prejudice question was likewise unreasonable. The court declared that Jones had the burden to show that “but for counsel’s shortcomings, the outcome of the proceeding would have been different.” People v. Jones, No. 1-05-1212, at 6-7. The court then gave two reasons why Jones hadn’t met this standard: First, it was “highly likely” that Stone would have invoked his Fifth Amendment privilege not to testify; second, “several eyewitnesses” testified that Jones shot Gardner. For these reasons, the court held, “the outcome of the trial would not have been different had counsel attempted to present the testimony of codefendant Stone.” Id. at 8.

This reasoning reflects a patent misunderstanding of Strickland’s prejudice standard. The state court asked too much of Jones. He did not need to show that the result of the trial would have been different but for counsel’s error; he only needed to show á “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (emphasis added). As we’ve noted before, “[t]his is not a mere detail or a quibble over word-smithing.” Mosley, 689 F.3d at 850. It’s a substantive point, and one that both the Supreme Court and we have made before. See Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Mosley, 689 F.3d at 850. In Mosley, for example, the Illinois Appellate Court took the same approach to the prejudice question as it did here; we held there that the error easily satisfied § 2254(d)’s steep standard of review. 689 F.3d at 850. Indeed, we held in Mosley that an Illinois appellate decision applying an identically phrased prejudice formulation was clearly contrary to Strickland. Id. (citing Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. 1495). The same conclusion follows here.

Finally, the state court’s reasons for its no-prejudice finding were so flawed as to fall outside the bounds of reasonable judicial disagreement. First, the court surmised that Stone probably would have refused to testify. Perhaps, but the court’s supposition was speculative; at that time there was no basis in the record to know one way or the other. And as the dissenting judge noted, if Stone had refused, he would have been an unavailable witness and his testimony from his own trial would have been admissible. People v. Jones, No. 1-05-1212, at 9-10 (Wolfson, J., dissenting) (citing People v. Johnson, 118 Ill.2d 501, 115 Ill.Dec. 384, 517 N.E.2d 1070, 1074 (1987); Michael H. GRaham, CleaRY & Graham’s Handbook op Illinois Evidence § 804.2 (7th ed. 1999)). Second, the court noted that “several eyewitnesses” testified that Jones shot Gardner, “which would have diminished the effectiveness of Stone’s prior testimony had it been admissible.” Id. at 8. Indeed, two eyewitnesses— Antonio and Rena Phillips—testified that Jones shot Gardner at close range, but the physical evidence contradicted their story. A third witness—Gaston—said only that he thought Jones had a gun in his coat pocket and may have fired through his coat. But he also told the police on the night of the shooting that he saw Stone emerge from the . alley and shoot Gardner. Against these very weak prosecution witnesses, Stone’s confession would have been powerful.

For all these reasons, Jones has satisfied the requirements of § 2254(d). When a habeas petitioner successfully discharges his burden under § 2254(d), it will often be the case that his entitlement to relief naturally follows; but not “always and automatically.” Mosley, 689 F.3d at 853. “Whether the petitioner is actually entitled to relief—whether under § 2254(a) he is in custody in violation of the Constitution and or laws or treaties of the United States—is a separate question.” Id. In this case the two inquiries overlap so significantly that Jones’s entitlement to relief flows easily from our § 2254(d) conclusion. Still, we think it best to address the § 2254(a) question separately, though we can be brief.

At the evidentiary hearing, Brian Dosch, Jones’s trial counsel, offered no objectively sound reason for his decision not to present Stone as a witness at Jones’s trial. He conceded that Jones asked him to call Stone. When he' was asked whether Stone’s testimony “would’ve been very helpful to Cortez Jones,” he replied, ‘Tes” and “Oh yes” and ‘Tes.” He acknowledged that he was fully aware of the content of Stone’s testimony because he had watched the Stone/Carter trial.- He could offer only one -reason for omitting Stone as a witness: The police report describing Stone’s confession contains some contradictory statements about whether he actually saw Gardner with a gun. According to the report, at one point during his confession, Stone admitted that he might not actually have seen a gun in Gardner’s hand. But the report also clearly states that Stone told the interrogating officers that Gardner drew a gun during the argument and aimed it at Carter.

As the district judge noted, this discrepancy in the police report may have been important to Stone’s defense, but it had little significance to Jones. Stone testified that he shot Gardner to protect Carter, his half-brother, so whether he saw Gardner with a gun was crucial to his defense. But Stone’s reason for firing the shots was unimportant to Jones; the key was his consistent testimony that he—and he alone—shot Gardner. The why of his actions was largely irrelevant, but his confession to being the sole shooter mattered a great deal. The ambiguity in the police report about whether he actually saw Gardner with a gun was not an objectively reasonable basis to omit his testimony.

On the prejudice question, we don’t need to say much more than we’ve already said. Because the evidence—new and old—satisfies the actual-innocence standard, it necessarily also satisfies the Strickland test for prejudice. There is a reasonable probability that Jones would have been acquitted had his counsel presented Stone’s testimony.

Illinois argues that the jury in the Stone/Carter trial must have found Stone unpersuasive, so it follows that he would not have been a persuasive witness for Jones. But the two trials were different in important ways. First, as we’ve already noted, the jury’s rejection of Stone’s “defense of brother” defense has no bearing on the ■ case against Jones. To repeat, what’s important in Jones’s case is not Stone’s reason for .shooting Gardner but his consistent admission that he alone shot Gardner.

The jury convicted Carter-too, of course, but that isn’t conclusive on the prejudice question in -Jones’s case. The case against Carter was submitted to the jury on a theory of accountability; that is, the jury could convict Carter even if it rejected the prosecution’s theory that both he and Stone were armed and fired shots at Gardner. True, Carter’s conviction means that the jury at least accepted that Carter and Stone shared a common plan to kill Gardner and to that extent must have found Stone unpersuasive. But the case against Jones wasn’t tried on an accountability theory, which in any event would have been weaker against Jones than it was against Carter.

The prosecution maintained in both trials that Gardner was murdered in retaliation for the robbery and beating at the May Street apartment. The evidence against the two men, however, was not identical for purposes of an accountability theory of guilt. Unlike Carter, Jones had no connection to Stone, Grant, or any other residents of the apartment. Indeed, Jones met Stone and the others for the first time on the day of these events. Moreover, Stone paged Carter to summon him back to the scene after 9 p.m., and it is entirely plausible to infer that Carter would know that his brother owned a gun and would be armed. No evidence suggests that Jones- would have known this. With no direct evidence of a plan (and the prosecution had none), Jones would have been in a stronger position to argue that he was unaware that Stone would be armed and intended to shoot Gardner.

A final point before we move on: For unknown reasons the judge in the Stone/Carter trial excluded Stone’s statement to police, which was consistent with his trial testimony and thus would have bolstered his credibility. Though not necessarily decisive, prior consistent statements usually bear favorably on a witness’s credibility. Indeed, Stone’s consistency was an important factor in the district judge’s actual-innocence determination. We can safely assume that Stone’s prior consistent statement would have been an important factor in Jones’s trial too.

Second, the case against Jones was tried to the court, and bench trials proceed on a subtly different calculus. At the evidentia-ry hearing, Dosch told the district judge that he watched Stone testify at his trial and thought he was “nothing special” on the witness stand and “wasn’t a great witness.” But he immediately baekpedaled on this point, saying, “I suppose he was adequate.” It’s not clear what Dosch meant by this testimony; he did not elaborate. But whatever Stone’s shortcomings as a witness, it’s reasonable to think that the judge presiding at Jones’s trial could dispassionately account for any communication difficulties or rough edges in evaluating the substance of his testimony. We note again that the district judge credited Stone’s testimony in the § 2254 proceeding. In the end, the cost of calling Stone at the bench trial was so small—and the benefit of having his testimony was so great— that Dosch’s decision not to call him was plainly prejudicial.

Jones has established that he is in custody in violation of his Sixth Amendment right to the effective assistance of counsel and is therefore entitled to relief under § 2254(a). The district judge was right to grant the petition for a writ of habeas corpus.


source: Caselaw Access Project

author: KANNE, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lisa A. LEWIS, Defendant-Appellant.
    No. 16-1401
    United States Court of Appeals, Seventh Circuit.
    Argued September 8, 2016
    Decided November 16, 2016

      William J, Roach, Attorney, Office of the United States Attorney, Green Bay, WI, for Plaintiff-Appellee.
    William R. Jones, Attorney, Jones Law Firm, Madison, WI, for Defendant-Appellant.
    Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.
   KANNE, Circuit Judge.

Over a seven-year period, Lisa A. Lewis embezzled more than $2 million from twelve people who were 75 to' 92 years old. Pursuant to a plea agreement, she pled guilty to one count of wire fraud in violation of 18 U.S.C. § 1343, and the government agreed to a specific sentencing guidelines calculation. The government also agreed to recommend no more than ten years’ imprisonment at her sentencing hearing.

At the first sentencing hearing, the district court sentenced Lewis to fifteen years’ imprisonment. Shortly thereafter, we decided United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). Lewis appealed raising only the issue of her supervised-release conditions. In light of Thompson, we remanded for resentencing. Before the resentencing hearing, Lewis filed a motion arguing for the first time that the government had breached the plea agreement. The district court denied the motion and held that Lewis had waived this argument by failing to raise it at the first sentencing or on the first appeal. The district court then sentenced Lewis to the same fifteen-year term.

On appeal, Lewis now argues that she did not waive her argument that the government breached the plea agreement. She reasserts that argument now. Lewis also argues that the district court erred at sentencing by (1) applying a sentencing enhancement based on the vulnerability of her victims and (2) imposing a substantively unreasonable sentence.

We hold that the district court did not err by refusing to hear Lewis’s argument, but it did err by not affirmatively acknowledging that it had the authority to do so. But because the district court alternatively rejected that argument, and because we believe that the argument is meritless, we hold that the district court’s error is harmless. Finally, we hold that the district court did not err at sentencing because the vulnerable-victim enhancement was properly applied and the district court’s sentence was substantively reasonable.

I. Background

From 2006 until 2013, Lewis fraudulent ly held herself out as an account representative with Fidelity Investments to at least a dozen “investors” whose ages ranged from 75 to 92. Although she had been a registered broker with the Financial Industry Regulatory Authority from 1990 until 2006, she was neither a registered broker nor affiliated with Fidelity Investments during this fraudulent scheme. Under the scheme, Lewis convinced her investors to set up investment accounts at Fidelity. Unbeknownst to her investors, however, Lewis opened the accounts as joint accounts, including her name on each account. This allowed Lewis to transfer funds from the accounts to her own personal account without her investors’ consent or knowledge. Lewis applied for and received debit cards associated with some of these accounts. She also forged some of her investors’ signatures on checks drawn on their accounts. She used the debit cards and fraudulent checks to withdraw additional funds from the accounts. Over the course of this seven-year .scheme, Lewis embezzled more, than $2 million.from her victims.

A grand jury indicted Lewis on five counts of .wire fraud in violation of 18 U.S.C. § 1343. On March 14, 2014, she pled guilty to one of those counts pursuant to a plea agreement. In exchange for Lewis’s guilty plea, the government made several promises. First, the government promised “to recommend no more than 10 years imprisonment and the maximum period of supervised release.” (R. 17 at ¶ 24.) Second, the government agreed to the following sentencing guidelines calculation:

1. A base offense level of 7 under U.S.S.G. § 2Bl.l(a)(l);
2. Specific offense level increases of 16 levels for the amount of the loss under U.S.S.G. § 2Bl.l(b)(l)(I), 2 levels for an offense involving 10 or more victims under U.S.S.G. §' 2Bl.l(b)(2)(A), and 2 levels for an offense involving sophisticated means under U.S.S.G. § 2Bl.l(b)(10);
3. Á 2-level increase for the abuse of a position of trust under U.S.S.G. § 3B1.3;
4. A 4-level increase for an offense involving a large number of vulnerable victims under U.S.S.G. § 3A1.1; and
5. A 3-level decrease for acceptance of responsibility under . U.S.S.G. §§ 3El.l(a) and 3El.l(b).

This agreed-upon calculation resulted in a total offense level of 30. Based on this offense level and Lewis’s criminal history category of I, Lewis’s guideline range under the plea agreement was 97 to 121 months.

The plea agreement also included several important reservations. First, the agreement provided that “[b]oth parties reserve the right to provide the district court and ■the probation office with any and all information which might be pertinent to the sentencing process — ” (R. 17 at ¶ 22.) Second, the agreement provided that “[b]oth parties reserve the right to make any recommendation regarding any and all factors pertinent to the determination of the sentencing guideline range.... ” (R. 17 at ¶23.) Finally, the agreement acknowledged that the district court was not bound by the agreement or by the sentencing guidelines. (R. 17 at ¶ 25.)

The probation office then completed a Presentence Investigation Report (“PSR”). The probation office’s guideline calculation included two additional enhancements: (1) a 2-level increase for the use of a means of identification under U.S.S.G. § 2Bl.l(b)(ll)(C)(i) and (2) a 2-level increase for obstruction of justice under U.S.S.G. § 3C1.1. The calculation in the PSR also included only a 2-level vulnerable-victim enhancement under U.S.S.G. § 3Al.l(b)(l), rather than the 4-level enhancement contemplated in the plea agreement. The probation office then presented the PSR to Lewis and to the government for comment. Lewis objected to the additional enhancements. The government did not object to any of these recommendations.

The probation office then asked the government to comment on Lewis’s objections to the additional enhancements. The government responded in an email to the PSR preparer. Regarding the means-of-identification enhancement, the government stated that the “facts outlined in the PSR are accurately relayed and seem to fit within the parameters of the guideline enhancement.” (R. 59-1.) Regarding the obstruction-of-justice enhancement, the government stated that “the PSR accurately relays the facts that arguably fall within the umbrage of the guideline enhancement.” (R. 59-1.) The final PSR included the additional enhancements. It also included several victim impact statements. Based on a calculated total offense level of 32, Lewis’s guideline range under the PSR was 121 to-151 months.

The government and Lewis both filed sentencing memorandums. Lewis asked for an eight-year prison term, arguing that this sentence would have the same deterrent effect as a ten-year sentence. The government’s response did not address the guidelines; instead, it emphasized the seriousness of the offense and recommended a ten-year sentence.

At sentencing, the district court once again asked the government to comment on Lewis’s objections to the additional enhancements in the PSR. Mindful of the plea agreement, the government first expressed that it was not advocating for the additional enhancements. It then repeated the recommendations that it had given to the probation office. The district court followed the PSR and concluded that Lewis’s total offense level was 32. The government then argued that a 4-level vulnerable-victim enhancement—as contemplated in the plea agreement—rather than the 2-level vulnerable-victim enhancement included in the PSR should apply. The district court rejected that argument. The court then sentenced Lewis to fifteen years’ imprisonment, a sentence five years higher than was contemplated in the plea agreement and twenty-nine months higher than the top end of the guideline range for an offense level of 32.

On January 5, 2015, Lewis appealed only her conditions of supervised release. In light of our decision in Thompson, 777 F.3d 368, the government and Lewis submitted a joint motion to vacate the sentence and to remand for resentencing to correct the supervised release conditions contained in the original sentencing order. We granted that motion and remanded for resentencing on March 12, 2015.

On February 1, 2016, Lewis filed a motion with the district court seeking to reassign her case to a new sentencing judge, to strike the PSR’s guideline calculation, to strike the government’s sentencing memorandum, and to seal the sentencing transcript. In that motion, Lewis claimed for the first time that the government had breached the plea agreement. The district court denied Lewis’s motion, holding that she had waived any argument regarding a breach of the plea agreement by not presenting it at the first sentencing hearing or on the first appeal. The district court also concluded that, even absent a waiver, Lewis was “not entitled to relief because the government did not breach the plea agreement.” (R. 61 at 5.)

Before the resentencing hearing, Lewis again filed objections to enhancements in the PSR. During resentencing, she specifically objected to the means-of-identification 2-level enhancement and the vulnerable-victim enhancement. The district court rejected Lewis’s argument regarding the vulnerable-victim enhancement and applied the 2-level increase contemplated in the PSR. The district court accepted Lewis’s argument regarding the means-of-identification enhancement and dropped that 2-level increase. The district court then recalculated Lewis’s guideline range and found that her total offense level was 30, which, based on her criminal history category of I, resulted in a guideline range of 97 to 121 months. The district court then resentenced Lewis to the same sentence of fifteen years’ imprisonment despite the lower offense level and guideline range.

Lewis now appeals the district court’s denial of her February 1 motion and the district court’s sentence. Because the government did not breach the plea agreement and because the sentence was proper, we agree with the district court.

II. Analysis

On appeal, Lewis makes four arguments: (1) the district court erred when it concluded that Lewis waived her right to assert that the government had breached the plea agreement- by failing to raise this argument at the original sentencing or on the original appeal; (2) the district court erred when it concluded that the government did not breach the plea agreement; (3) the district court erred when it applied the two-level vulnerable-victim enhancement; and (4) the district court’s sentence of fifteen years’ imprisonment was substantively unreasonable. We first address her arguments regarding the plea agreement. We then turn to her arguments regarding the district court’s sentence.

A. Breach of the Plea Agreement

Lewis’s first two arguments on appeal center on the government’s alleged breach of the plea agreement. The district court held that Lewis waived any argument regarding the government’s alleged breach by not raising it at- the original sentencing in the district court or on the original appeal in this court. Thus, the district court held that this argument was outside the scope of the remand. “We review a district court’s determination of the scope of remand de novo.” United States v. Mobley, 833 F.3d 797, 803 (7th Cir. 2016).

The scope of a remand is determined by our opinion granting that remand. United States v. Avila, 634 F.3d 958, 961 (7th Cir. 2011). If our opinion “identifies a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error.” United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996). On the other hand, if the case is generally remanded for resentencing, “the district court may entertain new arguments as necessary to effectuate its sentencing intent, but it is not obligated to consider any new evidence or arguments beyond that relevant to the issues raised on appeal.” United States v. Barnes, 660 F.3d 1000, 1007 (7th Cir. 2011) (emphasis added). Thus, when a case is generally remanded, a district court has some discretion as to which—if any—new arguments it will hear. Id. at 1007-08.

A remand in light of Thompson vacates the entire sentence, allowing the district court to alter any aspect of that sentence at resentencing. Thompson, 777 F.3d at 382; see also Mobley, 833 F.3d at 801. As such, a Thompson remand is a “full” or general remand unless our opinion or the formal mandate granting the remand includes an explicit limitation. Mobley, 833 F.3d at 801. Following the rationale of Barnes, on a Thompson remand, a district court may entertain new arguments if it so chooses. Barnes, 660 F.3d at 1007. “The defendant need not have raised these arguments on appeal; once the case is remanded for a complete resentencing, the defendant may assert any argument she wishes.” Mobley, 833 F.3d at 802. The district court then “may choose to exercise its discretion in a manner that does not consider any new evidence or new arguments ..., and it may choose to impose the exact same sentence as was imposed at the original sentencing hearing.” Id.

Here, Lewis could have raised all of her arguments regarding the government’s alleged breach of the plea agreement at the first sentencing and then on her first appeal. But she chose not to raise them. Because we generally remanded this case in light of Thompson, the district court at resentencing could have chosen to hear Lewis’s arguments regarding the breached plea agreement, but it was not obligated to do so. Id. at 801-02. Therefore, the district court did not err in refusing to hear Lewis’s newly raised arguments. What the court had to do, however, was “acknowledge that it ha[d] the authority to hear new arguments, so that we ... know on appeal that it exercised its discretion in either accepting or rejecting new material.” Id. at 802. Here, the district court did not acknowledge its authority, and its failure to do so constitutes a mistake of law. Id. at 803. But because the district court also considered and rejected Lewis’s breach of the plea agreement argument, and because we agree that the government did not breach the plea agreement, any error is harmless. See Barnes, 660 F.3d at 1008.

“An error is harmless if it does not affect a party’s substantial rights.” Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1079 (7th Cir. 2016). Substantial rights are those “that affect the outcome of the case.” United States v. Turner, 836 F.3d 849, 867 (7th Cir. 2016). Therefore, a district court’s failure to acknowledge that it had the authority to hear a new argument—raised for the first time after a Thompson remand—is harmless if that new argument is meritless and could not have affected the outcome of the case.

Here, the district court alternatively considered Lewis’s argument regarding the plea agreement and concluded that no breach occurred. When, as here, there is no dispute as to the relevant facts, we interpret the plea agreement and review whether there was a breach de novo. United States v. Malone, 815 F.3d 367, 370 (7th Cir. 2016). “We interpret a plea agreement using ordinary principles of contract law, ‘though with an eye to the special public-interest concerns that arise in this context.’” Id. (quoting United States v. Munoz, 718 F.3d 726, 729 (7th Cir. 2013)). Accordingly, we give unambiguous terms in the plea agreement their plain meaning and look to “the parties’ reasonable expectations and construe ambiguities against the government as the drafter” only when the language is ambiguous. Id. Relief for a prosecutor’s breach of a plea agreement is only actionable if the breach is substantial. Campbell v. Smith, 770 F.3d 540, 546 (7th Cir. 2014).

Lewis argues that the government breached the plea agreement in three major ways: (1) by advocating for additional enhancements in its email to the PSR preparer and its comments to the district court regarding the recommendations of the PSR; (2) by failing to advocate in good faith for a maximum sentence of ten years; and (3) by advocating for the 4-level vulnerable-victim enhancement rather than the 2-level enhancement contemplated in the PSR. Because none of these actions constitutes a breach of the plea agreement, we reject Lewis’s argument.

First, the government did not breach the plea agreement by emailing the PSR preparer or commenting on the PSR’s recommendations at sentencing. In fact, the government explicitly reserved the right to do so in the plea agreement. In the agreement, the government “reserved] the right to provide the district court and the probation office with any and all information which might be pertinent to the sentencing process.... ” (R. 17 at ¶ 22) (emphasis added). The government also “reserved] the right to make any recommendation regarding any and all factors pertinent to the determination of the sentencing guideline range ... and any other matters not specifically addressed by this agreement.” (R. 17 at ¶ 23.)

By offering its recommendations on the additional enhancements provided in the PSR, the government was not advocating for those enhancements. Instead, it was merely following the plea agreement’s terms by providing the district court and the probation office with pertinent information that was not addressed in the agreement. Moreover, the government, explicitly disclaimed advocacy for those additional enhancements at the sentencing hearing. When the district .court asked the government- for a recommendation about the additional enhancements in the PSR, the government first responded that it was not advocating for those enhancements. Only then did the government provide its recommendations.

Second, the government did not fail to advocate in good faith for a maximum sentence of ten years. The plea agreement bound the government to “recommend ho more than 10 years[’] imprisonment, ...” (R. 17 at ¶ 24.) Lewis argues that once the district court accepted the higher sentencing range calculated in the PSR—121 to 151 months—the government had a duty to advocate for a below guidelines sentence. For Lewis, by continuing to describe her crime as “horrific,” “egregious,” , “aggravated,” “significant,” “dramatic,” and “tragic,” the government failed to make such a good faith effort. We disagree.

As previously mentioned, the plea agreement required the government to argue for no more than ten years’ imprisonment. That is precisely what the government did throughout the sentencing process. The government repeated its ten-year recommendation at the plea hearing, in its sentencing memorandum, and throughout the sentencing hearing. Strong advocacy in favor of the maximum sentence contemplated by a plea agreement does not constitute a breach, especially when the government reiterates its recommendation and the terms of the plea agreement throughout the sentencing process. See United States v. Salazar, 453 F.3d 911, 913-15 (7th Cir. 2006) (holding that the government did not breach the plea agreement when it described the defendant as a “cold-blooded killer” because the government “did not request a higher sentence” and “consistently commented that the low-end Guidelines sentence was appropriate”).

Finally, the government did' not breach the.plea agreement by advocating for the 4-level vulnerable-victim enhancement at sentencing. First, the plea agreement, by its terms, permitted the government to argue for that increase. Moreover, the government made clear at sentencing that it was advocating for the 4-level enhancement “just to make the record complete.” (R. 42 at 23.) The government did not breach the plea agreement by reminding the court of the agreement’s terms and arguing in favor of those terms.

We agree with the district court’s alternative conclusion that the government did not breach the plea agreement. Because this argument is meritless and could not have affected the outcome of Lewis’s case, the district court’s failure to acknowledge that it could have considered this argument is harmless.

B. Sentencing Arguments

Lewis’s final two arguments involve her sentence. We review a district court’s sentence in two steps. First, we review the district court’s application of the sentencing guidelines for procedural error. United States v. Mbaye, 827 F.3d 617, 622 (7th Cir. 2016). “If the decision below is procedurally sound, then we ask whether the resulting sentence is substantively reasonable.” Id. (quoting United States v. Warner, 792 F.3d 847, 855 (7th Cir. 2015)). Lewis makes one procedural challenge to her sentence: that the district court improperly applied the vulnerable-victim enhancement under U.S.S.G. § 3Al.l(b)(l). We begin with this decision and then turn to the issue of the substantive reasonableness of the sentence.

1. Vulnerable-Victim Enhancement

Lewis disputes the district court’s application of the 2-level sentencing enhancement under U.S.S.G. § 3Al.l(b)(l) based on the vulnerability of her victims. “We review the district court’s application of the sentencing guidelines de novo and its factual findings for clear error.” United States v. Guidry, 817 F.3d 997, 1007-08 (7th Cir. 2016).

Under U.S.S.G. § 3Al.l(b)(l), a district court can increase a defendant’s offense level by two levels “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim.” The commentary for this section defines a “vulnerable victim” as a person “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1 cmt. n.2.

Lewis argues that age alone is insufficient to justify application of the enhancement under § 3Al.l(b)(l). In support of her argument, Lewis quotes United States v. Anderson, 349 F.3d 568 (8th Cir. 2003). There, the Eighth Circuit held that “it would be clear error to impose a § 3Al.l(b)(l) increase simply because some of the victims of a widespread investment scam were elderly.” Id. at 572. For Lewis, because “the PSR preparer and the judge relied entirely upon age, uncoupled with any vulnerability that per se accompanies old age, to apply the enhancer,” the enhancement was procedurally improper. (Appellant’s Br. at 29).

As we have held, “Elderly victims satisfy the requirements of § 3Al.l(b)(l), especially when their financial investments and financial security are at issue. The elderly are a frequent target of scammers and frequently qualify as vulnerable victims.” United States v. Iriri, 825 F.3d 351, 352 (7th Cir. 2016) (internal citation and quotation marks omitted). But that doesn’t mean that the enhancement must always be applied when the victim is elderly. Instead, like the Eighth Circuit, we have held that “[t]here still must be some link between the vulnerability and the characteristic in question, here age.” United States v. Williams, 258 F.3d 669, 673 (7th Cir. 2001). Thus, Lewis is correct that age alone can be insufficient to justify the application of the vulnerable-victim enhancement. But because the district court did not base the application of the enhancement solely on the victims’ ages, Lewis’s argument ultimately fails.

Although the district court did base the application of the vulnerable-victim enhancement at least in part on the victims’ ages, the court also looked to several other vulnerabilities that Lewis exploited during the course of her scheme. As the district court noted and the victim impact statements reflect, Lewis had established long-term working relationships with at least some of her victims before commencing her fraudulent scheme. As one victim’s family member stated, Lewis “[p]os[ed] as a friend and advisor” and methodically did “things to develop trust over many years.” (R. 21 at 47.) Lewis “waited until [her victim]’s advanced age, illness and memory losses after chemotherapy, along with [her victim’s husbandj’s progressive forgetfulness and weakness gave her the opportunity to steal their life savings—trying to get every penny of it.” (R. 21 at 47.)

Other victims and their family members emphasized Lewis’s knowledge that her victims lacked basic computer skills. Finally, as the district court noted at resentenc-ing, at least one of Lewis’s victims “was in the hospital with colon cancer when much of the money was taken away.” (R. 77 at 21.) Lewis, who became acutely familiar with her victims by posing as a friend and advisor for years before and during her scheme, intentionally chose these people, not merely because of their ages but also because of their various other vulnerabilities she could readily exploit.

Lewis further argues that the district court conflated the vulnerable-victim enhancement with the abuse-of-trust enhancement and double counted the same conduct for purposes of sentencing. This argument, however, is easily dismissed. We have specifically held that this so-called “double counting,” “in the sense that the same conduct is used more than once to increase a defendant’s guideline range, is generally permissible unless the text of the guidelines prohibits it.” United States v. Burnett, 805 F.3d 787, 794 (7th Cir. 2015). In Burnett, we specifically rejected the exact argument Lewis raises here— that the same conduct cannot be used to justify imposition of both the vulnerable-victim enhancement under § 3A1.1 and the abuse-of-trust enhancement under § 3B1.3. Id. The district court properly applied the vulnerable-victim enhancement.

2. Substantive Reasonableness of Lewis’s Sentence

Lewis finally argues that her fifteen-year sentence, which is five years longer than the agreed-upon maximum sentence in her plea agreement and nearly five years longer than the upper end of her sentencing guidelines range, is substantively unreasonable. We review the substantive reasonableness of a district court’s sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Fogle, 825 F.3d 354, 358 (7th Cir. 2016).

There is no presumption that an above-guidelines sentence is unreasonable. United States v. Gill, 824 F.3d 653, 665 (7th Cir. 2016). We will uphold an above-guidelines sentence “so long as the district court offered an adequate statement of its reasons, consistent with 18 U.S.C. § 3553(a), for imposing such a sentence.” Id. (quoting United States v. Abebe, 651 F.3d 653, 657 (7th Cir. 2011)). When reviewing the district court’s reasoning, “we must determine whether the district court offered justification ‘sufficiently compelling to support the degree of variance.” United States v. Bradley, 675 F.3d 1021, 1025 (7th Cir. 2012) (quoting United States v. Miller, 601 F.3d 734, 739 (7th Cir. 2010)). In making this determination, we take into account that the “sentencing judge is in a superior position to find facts and judge their import under section 3553(a) in the individual case.” United States v. Carter, 538 F.3d 784, 791 (7th Cir. 2008) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586).

Here, the district court provided an adequate statement, consistent with 18 U.S.C. § 3553(a), explaining its reasons for imposing an above-guidelines sentence. Before announcing its sentence, the district court reiterated the importance of the guidelines. It then considered the nature and circumstances of Lewis’s offense. The district court concluded that Lewis’s crime was “one of the most serious white collar crimes” it had ever seen. As such, the court rejected the “abstract mathematical calculation” of the guidelines because the guidelines didn’t reflect the magnitude of Lewis’s offense. (R. 77 at 45.)

Moreover, the district court considered the impact Lewis’s crime had on her victims and the need to provide restitution to them. The court further considered “the need for just punishment” and determined that “deterrence played a huge role here because white collar crimes, unlike so many, ... are not impulsive.” (R. 77 at 47-48.) To send a message that this type of .crime would not be tolerated, the district court chose to impose an above-guidelines sentence. Finally, in deciding on an appropriate sentence, the district court considered the need to protect the public.

Lewis argues that the district court failed to adequately consider certain mitigating factors including that she had a criminal history category of only I, that she was a nonviolent offender, and that she expressed genuine remorse at the sentencing hearing for her actions. A district court can consider all of these factors when conducting its § 3553 sentencing analysis; however, the district court has “discretion over how much weight to give a particular factor.” United States v. Boroczk, 705 F.3d 616, 624 (7th Cir. 2013), The district court’s weighing of the § 3553 factors must fall “within the bounds of reason,” but “those bounds are wide.” Id. (internal quotation marks omitted). Here, the district court considered these mitigating factors but decided that the magnitude of her offense outweighed any mitigation and justified an above-guidelines sentence.

We agree with the district court that Lewis’s crime was especially damaging to her victims and that the sheer magnitude of her offense coupled with the other § 3553 factors discussed by the district court justified an above-guidelines sentence. As such, the district court did not abuse its discretion.

III. Conclusion

For the foregoing reasons, we AFFIRM.

      . We recognize that the plea agreement still binds the government at resentencing. Thus, had Lewis alleged that the government breached the plea agreement in a new or different way at resentencing, the district court would have had to have addressed that argument. That is because Lewis would not have been able to raise this new or different argument at tire first sentencing. But because all of the alleged breaches she complains about occurred at or before the first sentencing, and because she could have raised these arguments at that first sentencing and then on her first appeal, the district court was not obligated to hear these arguments on remand.

      . We also recognize that the district court decided this case before our decision in Mobley, 833 F.3d 797, and thus could not have been aware of the specific acknowledgement requirement we announced in that case. Nonetheless, we find that this was an error.


author: WILLIAMS, Circuit Judge.

text:
    Kerry ADOLPHSON, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 15-2242
    United States Court of Appeals, Seventh Circuit.
    Argued April 27, 2016
    Decided November 18, 2016

      Lowell H. Becraft, Jr., Attorney, Huntsville, AL, for Petitioner-Appellant.
    Randolph L. Hutter, Bruce R. Ellisen, Attorneys, Department of Justice, Tax Division, Appellate Section, Washington, DC, Respondenb-Appellee.
    Before FLAUM, MANION, and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge.

This is a difficult tax case made more so by the refusal of the Commissioner of Internal Revenue -to engage the taxpayer’s arguments or the tax court’s decision. Kerry Adolphson, who has failed to file a tax return since at least 2002, challenges levies used by the IRS to collect his unpaid taxes. The tax court dismissed his petition for lack of subject-matter jurisdiction because Adolphson had not challenged the levies administratively, see 26 U.S.C. § 6330(d), and, therefore, lacked the requisite notice of determination from the IRS Office of Appeals.

Adolphson contends that because the IRS prevented him from obtaining a notice of determination by failing to properly notify him of its intent to levy, the tax court should have declared the levies invalid. To support his argument, Adolphson relies on a line of cases where the tax court accepted this argument and invalidated levies despite the fact that absent a notice of determination, the tax court lacks the statutory authority to hear a taxpayer’s claim. While we agree with Adolphson that his case is indistinguishable from this line of tax court precedent,, we affirm the judgment dismissing Adolphson’s petition because we find that those decisions are unsound and reflect an improper extension of the tax court’s jurisdiction.

I. BACKGROUND

The IRS’s authority to levy a taxpayer’s property is governed by 26 U.S.C. § 6330, which states that “[n]o levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of their right to a hearing under this section before such levy is made.” Id. § 6330(a)(1). This “Final Notice of Intent to Levy” may be given in person, left at the taxpayer’s home or place of business, or sent by certified mail to the person’s last known address. Id. § 6330(a)(2). After issuance, the taxpayer has 30 days to request a “collection due process hearing” (“CDP hearing”) with the Office of Appeals, at which the person may challenge both the levy activities and the underlying tax debt, if there has not previously been an opportunity to do so. Id. § 6330(b),(c). After the hearing, the Office of Appeals issues a notice of its determination, which authorizes a dissatisfied taxpayer to petition the tax court for review within 30 days. Id. § 6330(d). We have held that the tax court lacks subject-matter jurisdiction to review IRS collection activities unless the aggrieved taxpayer has obtained a notice of determination. See Gray v. Comm’r, 723 F.3d 790, 792-93 (7th Cir. 2013); Cleveland v. Comm’r, 600 F.3d 739, 741 (7th Cir. 2010).

In 2014, the IRS set out to collect $244,464 in unpaid taxes and penalties assessed against Adolphson for tax years 2002 and 2006 through 2010. According to Adolphson, he was unaware of the IRS’s collection efforts until May 2014, when the agency levied on his funds held by third parties. Rather than challenge the levies directly with the IRS, Adolphson filed a pro se petition in September 2014, asking the tax court to enjoin collection efforts by the IRS and refund amounts already collected through the levies. Adolphson argued that the levies are invalid because the IRS had not mailed him a Final Notice of Intent to Levy as required, and so he was deprived of the right to challenge the liability in a CDP hearing before the IRS Office of Appeals. He relied on several tax court decisions, including Buffano v. Commissioner, 93 T.C.M. (CCH) 901 (2007), in which the tax court asserted that it lacked subject-matter jurisdiction without a notice of determination, yet nevertheless invalidated levies after finding that the taxpayer was prevented from requesting a CDP hearing by the IRS’s failure to mail a Final Notice of Intent to Levy to the proper address.

The Commissioner initially responded by asserting that the statutorily required notices had been “mailed” but said that further investigation was needed to ascertain where those notices were sent. The Commissioner never provided an answer to that question, however, and instead moved to dismiss Adolphson’s petition. The Commissioner argued that the tax court lacked subject-matter jurisdiction under 26 U.S.C. § 6330(d), because Adolphson had not requested a CDP hearing. Absent a CDP hearing, Adolphson could not have received a notice of determination from the IRS Office of Appeals. The Commissioner maintained that without a notice of determination, the tax court had no power to review the levies or to determine whether the IRS had issued them properly. In his motion, the Commissioner did not acknowledge Buffano or the other decisions in which the tax court had invalidated levies—notwithstanding the absence of a notice of determination—based on the same argument Adolphson advanced. Despite contending that the tax court lacked jurisdiction, however, the Commissioner responded to Adolphson’s challenge on the merits. The Commissioner noted that Final Notices of Intent had been issued on March 11, 2010 and January 16, 2014. While IRS records indicated that Adolphson’s address had been updated in 2006, and then again in 2014, the Commissioner was unable to say “with certainty” whether the Final Notices of Intent were sent to the proper addresses. Although the Commissioner conceded that the Notices of Intent to Levy were invalid if mailed to the improper address, which would mean that the levies must be reversed, the Commissioner once more reiterated that absent a CDP letter, the Court lacked jurisdiction over the collection matter pursuant to Section 6330(d)(1).

The only supporting documents that the Commissioner provided were unauthenticated copies of Adolphson’s transcripts of account for the years at issue and an unauthenticated computer printout listing dates on which his address of record had been changed in the IRS system. These exhibits corroborate the Commissioner’s account of when the Final Notices of Intent to Levy were issued but, as acknowledged by the Commissioner, the documents do not show where any of the notices were mailed. Indeed, these computerized records are not even adequate to establish a use of the mail, since they only state that the Final Notices of Intent to Levy were “issued” (one in 2010, pertaining to tax year 2002, and a second in 2014, for tax years 2006 through 2010). A post office box in Iowa is given as Adolphson’s address on each transcript of account (all of which were generated by the IRS from its database after Adolphson had petitioned the tax court in September 2014). The 2002 transcript also shows that the Final Notice of Intent to Levy for that year, issued in 2010, was returned as “undeliverable.”

While Adolphson conceded that he lacked a notice of determination, he urged the tax court to apply Buffano and invalidate the levies because the IRS had prevented him from requesting a CDP hearing by failing to send him a Final Notice of Intent to Levy for any of the relevant tax years. He further argued that although the Commissioner’s exhibits listed an Iowa address, his “address for the last 5 years has and always has been” in Illinois.

At that point the Commissioner conceded that the IRS could not establish through its records where the agency had sent either of the Final Notices of Intent to Levy. The Commissioner speculated, though, that the Iowa address on the transcripts of account is “the most likely address to which these notices were sent.” As before, the Commissioner did not acknowledge—much less try to distinguish—the tax court decisions relied upon by Adolph-son, instead faulting him for the agency’s floundering while continuing to insist that the tax court lacked subject-matter jurisdiction to invalidate the levies. Nor did the Commissioner submit additional evidence, instead relying upon the assertion that IRS “records reflect that Notice was mailed,” which misrepresents the strength of the agency’s evidence, since (with the possible exception of the 2010 notice that was returned “undeliverable”) those records reflect nothing more than dates of issuance.

Adolphson then produced a letter he “ha[d] recently come across,” which the IRS sent in November 2012 to the Illinois address where he claimed to have resided for more than five years. This letter, he argued, proves that the IRS was aware of his Illinois address for more than a year before issuing (and apparently mailing to Iowa) the Final Notice of Intent to Levy for tax years 2006 through 2010. Adolph-son pointed out explicitly that the Commissioner still had not acknowledged Buffano and other decisions in which the tax court had invalidated levies where the IRS could not prove proper mailing.

The tax court granted the Commissioner’s motion to dismiss, reasoning that it lacked the authority to grant relief under § 6330(d) without a notice of determination. The tax court acknowledged the IRS’s inability to show where it had mailed the Final Notices of Intent to Levy, but distinguished Buffano with the explanation that Adolphson—the taxpayer—had failed to establish where the notices should have been mailed.

II. ANALYSIS

We review de novo the tax court’s dismissal of a petition for a lack of jurisdiction. Estate of Kunze v. C.I.R., 233 F.3d 948, 950 (7th Cir. 2000). Although we find that this case is indistinguishable from the Buffano line of cases, because we find that those cases were decided in error, we will affirm the tax court’s dismissal of Adolph-son’s petition for lack of jurisdiction.

A. The Improperly Authenticated Transcripts of Account Do Not Affect the Outcome of Adolph-son’s Appeal

In this court, Adolphson principally argues that the transcripts of account attached to the Commissioner’s motion to dismiss were not admissible or, at the very least, not properly authenticated. Adolph-son is correct that the Federal Rules of Evidence' apply in the tax court, see 26 U.S.C. § 7453, and though transcripts of account are admissible if properly authenticated, these were not. See United States v. Ryan, 969 F.2d 238, 239 (7th Cir. 1992). That said, Adolphson’s argument is a distraction; he treated the transcripts as valid before the tax court and, more importantly, the tax court’s decision does not turn on their content.

B. Under the Reasoning of Buffano, the Tax Court Should Have Invalidated the Levies

The significant issue in this appeal is the one that Adolphson has been pressing since the beginning: the tax court should have invalidated the IRS’s levies under Buffano. We agree that this case is indistinguishable from Buffano.

In Buffano, the IRS mailed a Final Notice of Intent to Levy to the address listed on the taxpayer’s most recently filed tax return (an address where the taxpayer no longer lived). On the same day, though, the IRS also mailed two unrelated letters to the taxpayer’s current address, which the agency had obtained through a Postal Service database. The IRS’s letters did not mention collection activity, and when the taxpayer learned later that the agency had levied on his wages, he promptly requested a CDP hearing. The IRS refused to conduct a CDP hearing because the agency had received the taxpayer’s request more than 30 days after issuance of the Final Notice of Intent to Levy. The taxpayer nevertheless petitioned the tax court for review, and the Commissioner moved to dismiss for lack of subject-matter jurisdiction, citing the absence of a notice of determination. Buffano, 93 T.C.M. (CCH) 901, at *2-3. The tax court denied the Commissioner’s motion to dismiss, yet still entered an order dismissing for lack of jurisdiction^—but only after invalidating the levies based on a finding that the IRS had mailed the final notice to the wrong address. The tax court reasoned that the taxpayer’s current address, which the IRS had obtained from the Postal Service database and used in the two letters sent to him, had superseded, for purposes of his “last known address,” the one listed on his most recently filed tax return. Id. at *4-5.

This analysis—dismissing the taxpayer’s petition for lack of jurisdiction while still granting the very relief he seeks—is illogical, but Buffano is not an outlier. That 2007 decision has been relied upon to invalidate levies in situations analogous to Adolphson’s at least seven times in published decisions (and we cannot be sure that there are not even more, unpublished instances). See Minemeyer v. Comm’r, 104 T.C.M. (CCH) 616, at *4 (2012); Roberts v. Comm’r, T.C. Summ. Op. No. 7222-09S, at *3 (2010); Space v. Comm’r, 98 T.C.M. (CCH) 328, at *2-A (2009); Kennedy v. Comm’r, 95 T.C.M. (CCH) 1121, at *3 (2008); Graham v. Comm’r, 95 T.C.M. (CCH) 1504, at *5 (2008); Downing v. Comm’r, 94 T.C.M. (CCH) 319, at *8 (2007); Schwengel v. Comm’r, No. 13979-06L (T.C. Nov. 20, 2007).

In other decisions, the tax court has relied on Buffano but sided with the Commissioner, dismissing petitions for lack of jurisdiction because the required notices had been properly mailed and the petitions were, therefore, untimely. See, e.g., Anson v. Comm’r, 99 T.C.M. (CCH) 1504, at *4 (2010). To further complicate matters, the tax court has been inconsistent; for example, in Walthers v. Commissioner, 97 T.C.M. (CCH) 1793, at *2-3 (2009), it cited Buffano in concluding that the IRS had failed to properly mail notice to the taxpayer, but still refused to enjoin collection of the (invalid) levies, citing the absence of a notice of détermination.

C. Buffano Improperly Expanded the Scope of the Tax Court’s Jurisdiction in the Absence of a Notice of Determination

The outcome of this case, therefore, turns on the validity of the Buffano line of cases. If the tax court has the power under § 6330 to evaluate the sufficiency of the IRS’s collection activities and invalidate levies where the agency fails to properly mail notice, then Adolphson should have prevailed. Direct evidence is required when the IRS must prove that it properly mailed notice, and a computer printout listing a mailing date but without an address will not suffice. Walthers, 97 T.C.M. (CCH) 1793, at *2. Here, the Commissioner cannot even say with certainty to what address Adolphson’s notice was mailed, much less prove that it was sent by certified mail to his “last known address.” And the tax court’s ground for distinguishing Buffano'is untenable; the court rejected the petition due to “the paucity of information,” Adolphson’s failure to state what address was shown on his last tax return, and because, the court reasoned, the address shown on the 2012 letter is “hardly determinative as to his ‘last known address’ for purposes of section. 6330.” This reasoning improperly shifts the burden to Adolphson to prove that the IRS met its own statutory duty to notify him before levying his assets. It strikes us as nonsensical to fault the taxpayer for not establishing where the IRS should have mailed notice if the agency concedes, as it did here, that it cannot say if notice was mailed to New York or Los Angeles or somewhere in between.

Moreover, this question of burden-shifting aside, Adolphson’s contention that the IRS should have used his Illinois address has merit. In the tax court, the agency asserted that twice it had updated Adolph-son’s address using the Postal Service database—presumably to his Illinois address, where the 2012 letter was mailed—yet the agency conceded that it “most likely” sent the Final Notices of Intent to Levy to Iowa. See Gyorgy v. Comm’r, 779 F.3d 466, 475-76 (7th Cir. 2015) (noting that treasury regulations treat an updated address in the Postal Service database as “clear and concise notification” of taxpayer’s address); McPartlin v. Comm’r, 653 F.2d 1185, 1191 (7th Cir. 1981) (explaining that notice sent by certified mail will be deemed insufficient if Commissioner cannot produce return receipt); Pyo v. Comm’r, 83 T.C. 626, 636-37 (1984) (concluding that taxpayers were reasonably entitled to assume, after receiving correspondence from IRS at new address, that future mailings would be sent to same address). In other words, had the tax court followed Buffano and required the Commissioner to prove proper mailing, the “paucity of information” should have led to a win for Adolphson.

Hearing the Commissioner’s views on Buffano would have been enlightening, but, unfortunately, the Commissioner’s response brief is particularly unhelpful. Indeed, when asked at oral argument if we should invalidate the Buffano line of cases, the Commissioner specifically disclaimed any request for us to do so. This reticence is surprising given that it would seem that the IRS has a strong interest in asking us to overturn these decisions. Meanwhile the Commissioner makes no attempt to justify the IRS’s collection activities in this case and fails even to acknowledge the agency’s inability to prove that it sent notice to Adolphson. Instead, the Commissioner insists that Adolphson is relegated either to an administrative claim before the IRS or a refund suit in district court, while maintaining that “whether the IRS mailed a Notice of Intent to Levy to taxpayer’s last known address is not relevant in this case.” The Commissioner also makes no attempt to defend the tax court’s ground for distinguishing Buffano, stating only that Adolphson’s argument is “misconceived.”

But instead of explaining why Adolph-son’s reliance on Buffano is “misconceived,” the Commissioner simply changes the subject and asserts that Adolphson, proceeding pro se, erred by asking the tax court to enjoin further collection efforts and refund money already collected, rather than asking the court to invalidate the levies. Because the tax court had no jurisdiction to issue injunctions or order refunds, the Commissioner argues, the court lacked jurisdiction to grant the specific relief requested. This is not helpful; the issue is whether the tax court had the power to determine the sufficiency of the IRS’s mailings, not whether Adolphson knew to specifically ask for invalidation as opposed to an injunction. The Commissioner continues to pretend that Buffano and its progeny do not exist, while simultaneously arguing that the tax court lacks jurisdiction absent a notice of determination.

Notwithstanding this unwillingness to confront the salient issue, the Commissioner is correct that, absent a notice of determination, the tax court lacks jurisdiction under 26 U.S.C. § 6330(d). See 14 Mer-tens, Law of Federal Income Taxation, § 50:22 (Jane C. Bergner ed., 2016) (explaining that a notice of determination is a taxpayer’s “ticket” to tax court and that court lacks jurisdiction over claim by taxpayer who fails to timely request, and receive, a CDP hearing); Hauptman v. Comm’r, 831 F.3d 950 (8th Cir. 2016) (recognizing that a notice of determination is a prerequisite to tax court jurisdiction under § 6330). A decision invalidating administrative action for not following statutory procedures is a quintessential merits analysis, not a jurisdictional ruling. The Buffano line of cases therefore represents an improper extension of the tax court’s statutorily defined jurisdiction.

This practice of invalidating collection activity where the tax court lacks statutory authority to proceed also violates the Tax Anti-Injunction Act, 26 U.S.C. § 7421(a), which (with exceptions inapplicable here) provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” This statute deprives courts of jurisdiction to enter pre-collection injunctions and “protects the Government’s ability to collect a consistent stream of revenue” by ensuring that “taxes can ordinarily be challenged only after they are paid, by suing for a refund” under 28 U.S.C. § 1346(a)(1). Nat'l Fed’n of Indep. Bus. v. Sebelius, — U.S. -, 132 S.Ct. 2566, 2582, 183 L.Ed.2d 450 (2012); Korte v. Sebelius, 735 F.3d 654, 669 (7th Cir. 2013). By invalidating levies despite the absence of a notice of determination under § 6330—a taxpayer’s jurisdictional hook to enter tax court—decisions such as Buffano stand in direct opposition to the Act.

We note that, as far as we can tell, this framework for invalidating levies through a jurisdictional dismissal appears to have originated in a related but distinct context. The tax court in Buffano extended (without discussion) a much older and less problematic practice related to a different area of the tax court’s jurisdiction. When the IRS determines that a taxpayer (who, presumably, has filed tax returns) underpaid for a particular year, it issues a notice of deficiency (not to be confused with the notice of determination at issue here). The taxpayer may then immediately petition the tax court for redetermination of the alleged deficiency under 26 U.S.C. § 6213(a). In other words, no agency appeal is required—a taxpayer may go straight to the tax court as long as the petition is filed within 90 days of the deficiency notice.

But when the taxpayer does not learn of the deficiency and petition for redetermi-nation until more than 90 days after assessment, the IRS typically moves to dismiss the petition for lack of jurisdiction on timeliness grounds. The tax court then analyzes the IRS’s proof of mailing to determine whether the deficiency notice met statutory requirements. If notice was properly mailed, the case will be dismissed for lack of jurisdiction as untimely. See Lee v. Comm’r, 101 T.C.M. (CCH) 1634, at *2-3 (2011). But if the IRS cannot produce records or the tax court finds that the address used is not the taxpayer’s legal “last known address,” the court will side with the taxpayers and deem the notice insufficient (preventing further collection activity until the IRS complies with procedural requirements). See King v. Comm’r, 857 F.2d 676, 681 (9th Cir. 1988); Crum v. Comm’r, 635 F.2d 895, 900-01 (D.C. Cir. 1980) (reversing tax court’s dismissal for lack of jurisdiction to give taxpayer “the opportunity, as provided by statute, to seek in the Tax Court a redetermination of the 1969 deficiency prior to payment upon the filing of a timely petition”). This makes sense because the Congressional intent of providing taxpayers a forum to resolve a disputed deficiency is met, and because the jurisdictional requirement—a deficiency assessed by the IRS—must exist for the IRS to pursue any collection efforts, whether or not the taxpayer physically possesses the notice.

Over time, this morphed into a practice by which taxpayers who wish to argue that the IRS never properly served notice of a deficiency will file a petition, then immediately move for dismissal of their own petition for lack of jurisdiction on the ground that a deficiency was not properly sent. See, e.g., Pyo v. Comm’r, 83 T.C. 626, 631-32 (1984); Mulder v. Comm’r, 855 F.2d 208, 210-12 (5th Cir. 1988). Although calling this ground for dismissal “jurisdictional” is a misnomer, the logical underpinning is the same: The tax court is determining whether the IRS has met statutory requirements to proceed with collection, but there isn’t a question of whether or not the jurisdictional hook exists (were there no deficiency, there would be nothing to collect).

Buffano applied the analysis long used 'for cases in which a taxpayer challenges a notice of deficiency, but applied it to a case where the IRS had never issued a determination notice, without analyzing the significant differences between the two grants of jurisdiction. Buffano, 93 T.C.M. (CCH) 901, at *3-5. The tax court improperly transferred this longstanding practice to a new context without considering that under § 6330, absent a notice of determination concerning levy activities, the tax court has nothing to review.

No circuit court has directly addressed the practice of invalidating a levy through a jurisdictional dismissal, although the D.C. Circuit recently remanded to the tax court for it to consider, among other arguments, whether it has jurisdiction over a claim identical to that in Buffano, Edwards v. Comm'r, 791 F.3d 1, 7-8 (D.C. Cir. 2015). The absence of relevant case law perhaps is not surprising, however, since the Commissioner chose not to appeal any adverse, decision resting on Buffa-no. Instead, the IRS’s Chief Counsel has advised the agency to maintain better mailing records than applicable regulations require because, “if [a] taxpayer alleges that he never received a CDP notice and the Service cannot prove that it mailed the notice by certified or registered mail, the [tax] court will dismiss the case for lack of jurisdiction on the basis that the CDP notice was invalid.” IRS Chief Counsel Advice 200842042, 2008 WL 4610126.

The framework used in Buffano to scrutinize the IRS’s compliance with its statutory obligations does have equitable appeal; a taxpayer to whom the IRS fails to mail a Final Notice of Intent to Levy and, through no fault of her own, misses the 30-day window to request a CDP hearing might otherwise be left without an opportunity to petition the tax court prior to seizure of her assets. This is the system devised by Congress, however, and at least one circuit decision has rejected an argument that the tax court must have jurisdiction to address this apparent' problem. In Boyd v. Commissioner, 451 F.3d 8, 10 (1st Cir. 2006), taxpayers argued that the IRS “negate[d] Congress’s grant of jurisdiction by withholding the very process [a CDP hearing] that is designed to give taxpayers fair opportunity to challenge the agency’s decision-making.” In rejecting the argument that the tax court has equitable power to hear such- claims despite the absence of a notice of determination, the court noted that an aggrieved taxpayer unable to access the tax court has an alternate remedy: a refund suit in district court. Id. at 11. Troubling though this “remedy” may be, given the expense and potential delays inherent in such a suit, there is no lawful basis for expanding the tax court’s jurisdiction to resolve the perceived problem. Absent a notice of determination, the tax court simply has no lawful authority to hear a taxpayer’s claim under § 6330(d).

III. CONCLUSION

We AFFIRM the decision of the tax court dismissing Adolphson’s, petition for lack of jurisdiction.