                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 03-3398
ERIC WILSON,
                                           Petitioner-Appellant,
                               v.

UNITED STATES OF AMERICA,
                                          Respondent-Appellee.
                         ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
           No. 03 C 1434—Paul E. Plunkett, Judge.
                         ____________
       ARGUED JULY 5, 2005—DECIDED JULY 18, 2005
                      ____________




 Before BAUER, POSNER, and EASTERBROOK, Circuit
Judges.
  EASTERBROOK, Circuit Judge. Eric Wilson is serving a life
sentence for being a leader of the Gangster Disciples, a
continuing criminal enterprise. 21 U.S.C. §848. See United
States v. Smith, 223 F.3d 554 (7th Cir. 2000), which affirms
the convictions and sentences of Wilson and other defen-
dants. Wilson contends in this proceeding under 28 U.S.C.
§2255 that his trial lawyer furnished ineffective assistance
by not reminding the jury that he is accountable for other
gang members’ crimes under the theory of Pinkerton v.
2                                               No. 03-3398

United States, 328 U.S. 640 (1946), only to the extent that
they occurred after he joined the conspiracy himself. The
instructions framed the Pinkerton issue correctly for the
jury. Wilson’s current lawyers say that his former counsel
should have harped on these instructions and argued in the
alternative for acquittal (contending that the evidence did
not show that he ever joined or became a leader of the
Gangster Disciples) and, if the jury thought otherwise, that
he is not responsible for crimes that had occurred earlier.
   Counsel devoted his closing argument to contending that
Wilson should be acquitted outright—and for good reason.
If the jury found that he joined and became a leader of the
Gangster Disciples, then he was going to be convicted of the
CCE count, and a life sentence seemed almost inevitable
given the size of the organization. Section 848(b) makes life
imprisonment mandatory for leaders of criminal organ-
izations that distribute more than 1.5 kilograms of crack
cocaine or have gross receipts exceeding $10 million in any
12-month period. The Gangster Disciples were well over
both thresholds. So the main goal of the defense had to be
to persuade the jury that Wilson never joined or led this
criminal organization. Persuading the jury that Wilson did
not join until late 1994 would have done him no good. True,
it might have reduced the number of his substantive
convictions. But these did not affect his sentence. He had to
win acquittal of the CCE charge, or all hope was lost.
   This means that counsel’s strategy did not cause Wilson
any prejudice. Had trial counsel done exactly what his cur-
rent lawyers prefer, he would still be serving a sentence of
life without possibility of parole. It also means that his
lawyer lived up to professional requirements. See generally
Strickland v. Washington, 466 U.S. 668 (1984); Bell v. Cone,
535 U.S. 685 (2002); Rompilla v. Beard, 125 S. Ct. 2456
(2005). Trial counsel pursued the theme that stood to do his
client the most good.
No. 03-3398                                               3

  There would be a better argument for ineffective assis-
tance had counsel adopted the strategy that his current
legal team prefers. Suppose trial counsel had made an argu-
ment along the lines of: “Wilson did not join the Gangster
Disciples at all; but, if he did, he did not join until late
1994, and you should not deem him culpable for other gang
members’ crimes that preceded that date.” A lawyer might
reconcile these positions by reminding himself that the
prosecutor bears the burden of persuasion and may fail to
carry that burden in whole or in part. But lay jurors may
well hear the argument as inconsistent and as conceding
that Wilson did join by late 1994. If any of the jurors came
away with that impression, Wilson would be worse off—not
only because the probability of conviction would rise but
also because the events of 1995, when Wilson was a “Gover-
nor” of the Gangster Disciples, are what led to the life
sentence.
  Defendants are entitled to present inconsistent argu-
ments in criminal cases. See Mathews v. United States, 485
U.S. 58 (1988). But entitlement does not imply obligation.
As several of the opinions in Mathews recognized, a defen-
dant who advances an inconsistent argument may shoot
himself in the foot by implicitly conceding part of the
prosecution’s case, or by making the defense seem unprinci-
pled.
  Many courts have concluded that a decision not to present
inconsistent defenses cannot be condemned as ineffective.
See, e.g., Heaton v. Nix, 924 F.2d 130, 133 (8th Cir. 1991);
Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998);
Harich v. Dugger, 844 F.2d 1464, 1470-71 (11th Cir. 1988)
(en banc); Hubbard v. Harley, 317 F.3d 1245, 1260-61 (11th
Cir. 2003). There is only one arguably contrary decision,
which rests on a belief that the particular pair of defenses
could not have increased the chance of conviction. See
Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999). We have
our doubts, but it is unnecessary to pursue them. A rule
4                                                No. 03-3398

that counsel should argue all available defenses as a matter
of course would make many clients worse off. The Supreme
Court has abjured bright-line rules under the sixth amend-
ment, so we cannot declare that counsel never have a
constitutional obligation to present inconsistent defenses to
criminal charges, but we are confident that Wilson’s lawyer
did not have such a duty.
  Although the certificate of appealability was limited to
the ineffective-assistance issue, Wilson asks us to expand it
so that he may seek the benefit of United States v. Booker,
125 S. Ct. 738 (2005), and its precursors back to Apprendi
v. New Jersey, 530 U.S. 466 (2000). We deny that request
for two reasons. First, decisions in the Apprendi sequence
do not apply retroactively on collateral review. See Schriro
v. Summerlin, 542 U.S. 348 (2004); McReynolds v.
United States, 397 F.3d 479 (7th Cir. 2005); Curtis v. United
States, 294 F.3d 841 (7th Cir. 2002). Second, Wilson could
not gain even if Booker and its forbears were to be applied
retroactively, for his life sentence is a statutory floor, and
Harris v. United States, 536 U.S. 545 (2002), holds that the
sixth amendment permits judges to find facts that establish
mandatory minimum sentences. See also United States v.
Duncan, No. 04-1916 (7th Cir. July 1, 2005), slip op. 5-7.
                                                   AFFIRMED

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-18-05
