Foster v. United States, No. 12-1961 (7th Cir. 2013)
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Foster was charged with distributing crack cocaine and a separate conspiracy-to-distribute charge. Against the advice of appointed counsel, Kupsis, Foster rejected two proposed plea agreements, each of which would have resulted in a sentence of about 20 years imprisonment. Foster faced a possibility of a life sentence, if convicted of the conspiracy charge. The government filed an information, pursuant to 21 U.S.C 851, 10 days before trial, stating that Foster had a prior felony drug conviction, which increased the mandatory minimum penalty on each count from 10 to 20 years. Kupsis had not anticipated the information and had not advised Foster that it was a possibility. After receiving notice of the information, Kupsis suggested to Foster that they attempt to revive one of the earlier proposed plea agreements. Foster refused. Kupsis successfully defended Foster against the conspiracy charge, but he was convicted on the distribution count and sentenced to 20 years imprisonment. Foster filed a Section 2255 motion, arguing ineffective assistance of counsel. The district court held that Foster could not establish that he was prejudiced by Kupsis’ representation. The Seventh Circuit affirmed.
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