Cary v. United States of America
Filing
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ORDER & OPINION Entered by Judge Joe Billy McDade on 2/11/13 granting 1 Motion to Vacate, Set Aside or Correct Sentence (2255): FOR THE FOREGOING REASONS, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §2255 1 is GRANTED. The Court will schedule the case for resentencing. IT IS SO ORDERED. (cc: petitioner) (TK, ilcd)
E-FILED
Tuesday, 12 February, 2013 11:12:45 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JEREMY S. CARY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 12-cv-1469
ORDER & OPINION
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), filed on November 13, 2012.
Respondent filed a Response (Doc. 14) and Petitioner filed a Reply (Doc. 16). For the
reasons stated below, Petitioner’s Motion is granted.
PROCEDURAL HISTORY
Petitioner was convicted of failure to register as a sex offender in violation of
18 U.S.C. § 2250(a) after a guilty plea, without a plea bargain. (Doc. 1 at 1). The
presentence investigation report (PSR) stated that “the defendant was required to
register as a Tier III offender.” (11-cr-10054, Doc. 15 at 5). Under the sentencing
guideline for a failure to register offense, this corresponded with a base offense level
of 16. U.S. Sentencing Guidelines Manual § 2A3.5. The total offense level was
calculated as 13, incorporating a three level reduction for acceptance of
responsibility. (11-cr-10054, Doc. 15 at 6). Based on Petitioner’s criminal history,
the guidelines range for this offense level was calculated as thirty-three to forty-one
months’ imprisonment and supervised release for life. (11-cr-10054, Doc. 15 at 1819). Petitioner was sentenced to thirty-three months of incarceration, the lowest end
of the guidelines range for the calculated offense level. (Doc. 1 at 1). He was also
sentenced
to
twenty
years
of
supervised
release,
below
the
guidelines
recommendation. (Doc. 1 at 1). His supervised release included a condition that
Petitioner install filtering software on his computer at his cost and allow his
probation officer to monitor his computer use. (11-cr-10054, Doc. 18 at 4). Petitioner
did not appeal this sentence. (Doc. 1 at 2).
In Petitioner’s § 2255 Motion, he raises five grounds to challenge his
conviction and sentence. His first claim is that he received ineffective assistance of
counsel based on the failure to argue certain points Petitioner wanted raised during
his sentencing hearing. This claim is closely related to the other four arguments
raised in the Petition: that he should have received a downward departure based on
family responsibilities, that the Court abused its discretion in setting a supervised
release condition limiting Petitioner’s use of computers, that a twenty-year
supervised release term is “greater than necessary punishment,” and that his
calculated base offense level was “improper and unconstitutional.” (Doc. 1 at 4-14).
DISCUSSION
A sentence may be vacated, set aside, or corrected pursuant to § 2255 if the
sentence “was imposed in violation of the Constitution or laws of the United States.”
28 U.S.C. § 2255(a). “[R]elief under § 2255 is an extraordinary remedy because it
2
asks the district court essentially to reopen the criminal process to a person who
already has had an opportunity for full process.” Almonacid v. United States, 476
F.3d 518, 521 (7th Cir. 2007). Thus, § 2255 is limited to correcting errors of a
constitutional or jurisdictional magnitude or errors constituting a fundamental
defect that results in a complete miscarriage of justice. E.g., Belford v. United
States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos
v. United States, 26 F.3d 717 (7th Cir. 1994).
“A § 2255 motion is not a substitute for a direct appeal.” Coleman v. United
States, 318 F.3d 754, 760 (7th Cir. 2003). Where a petitioner failed to appeal his
sentence, his claims in a § 2255 motion may be procedurally barred. Constitutional
issues are barred unless the petitioner can show good cause for and prejudice from
the failure to appeal the issue, or if refusal to hear the issue would result in a
fundamental miscarriage of justice. See Prewitt v. United States, 83 F.3d 812, 816
(7th Cir. 1996). “[N]onconstitutional issues that could have been but were not raised
on direct appeal” cannot be raised in a § 2255 motion regardless of cause or
prejudice. Belford, 975 F.2d at 313; see also Lanier v. United States, 220 F.3d 833,
842 (7th Cir. 2000).1 However, to the extent such claims form the basis for
ineffective assistance of counsel claims, they may be considered in that context. See
Belford, 975 F.2d at 313 n.1. An ineffective assistance of counsel claim may be
A claim of actual innocence may also excuse procedural default, see, e.g., Bousley v.
United States, 523 U.S. 614, 622 (1998), but that exception is inapplicable here, as
Petitioner does not and would have no ground to allege that he is actually innocent
of failing to register as a sex offender.
1
3
raised in a § 2255 motion regardless of whether it could have been raised on appeal.
Massaro v. United States, 538 U.S. 500, 504 (2003).
I. Failure to Award Downward Departure
Among Petitioner’s claims is an argument that he was entitled to a
downward departure from the sentencing guidelines range because of his family
responsibilities. (Doc. 1 at 10). Petitioner also claims his counsel was ineffective for
failure to ask the Court for this downward departure. (See Doc. 1 at 10). Neither of
these arguments entitles Petitioner to relief.
First, as a stand-alone claim, this nonconstitutional claim for failure to award
the departure is procedurally barred for failure to appeal the issue. Though neither
Petitioner nor his counsel specifically asked for a downward departure pursuant to
U.S. Sentencing Guidelines Manual § 5H1.6, both made it known to the Court that
Petitioner’s girlfriend had recently given birth to a child.2 (See 11-cr-10054, Docs.
14-1, 23). Petitioner could have appealed the Court’s decision not to reduce his
sentence on this basis, but did not. Thus, the claim is procedurally barred as
defaulted.
The Court also finds Petitioner’s claim that his counsel was ineffective for
failing to ask for a downward departure under § 5H1.6 to be without merit. To
succeed on an ineffective assistance of counsel claim, Petitioner must show both
that his counsel’s performance was deficient, and that he was prejudiced by the
deficiency such that the result would have been different without the error.
To the extent Petitioner raises changes in his family situation since that time,
they are irrelevant to whether the Court should have granted, or his counsel should
have argued for, a downward departure at the time of sentencing.
2
4
Strickland v. Washington, 466 U.S. 688, 687-91 (1984). Here, Petitioner is unable to
show deficient performance or prejudice with respect to this claim.
Petitioner’s counsel was not deficient for failure to ask the Court specifically
for a family ties and responsibility downward departure or for any advice that
Petitioner not do so himself. First, as stated directly in § 5H1.6, “family ties and
responsibilities are not ordinarily relevant to determining whether a departure may
be warranted.” U.S. Sentencing Guidelines Manual § 5H1.6. Second, Petitioner’s
counsel did point to Petitioner’s claim that he had to care for his newborn son at the
sentencing hearing. (11-cr-10054, Doc. 23 at 21). Simply because he did not ask for
the downward departure by name was not deficient performance. Also, Petitioner
did ask the Court for a downward departure on this basis. (11-cr-10054, Doc. 14-1 at
5). The Court, aware of the possible grounds for departures, found the fact that
Petitioner had a new baby did not entitle him to a lesser sentence. Thus, there is
also no prejudice from any failure to argue this ground at sentencing.
II. Supervised Release Claims
Petitioner argues that the Court abused its discretion in ordering Petitioner’s
computer use monitored as a condition of his supervised release. (Doc. 1 at 9). He
also argues that twenty years of supervised release is too long. (Doc. 1 at 14).3
Petitioner asserts the condition and length of his supervised release are “greater
than necessary” punishment. (Doc. 1 at 14).
To the extent Petitioner’s ineffective assistance of counsel claim includes an
argument that his counsel improperly advised him not to argue against the
computer condition or length of supervised release, it is clearly without merit. Such
advice was not unreasonable, there is no showing that the Court would have
changed the supervised release had such arguments been raised.
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5
As with the downward departure claim, these nonconstitutional claims were
procedurally defaulted by Petitioner’s failure to appeal his sentence. See Belford,
975 F.2d at 313. Both the length of supervised release and the computer monitoring
condition were clearly laid out in the Court’s judgment. Petitioner had a full
opportunity to appeal his supervised release sentence but did not. Thus, these
claims are procedurally barred and will not be addressed on the merits.
III. Improper Guidelines Calculation
Finally, Petitioner also argues that his base offense level under the
sentencing guidelines was improperly calculated and his counsel was ineffective for
failing to notice or argue this point. (Doc. 1 at 5-7). The Seventh Circuit has held
that a petitioner cannot raise a claim of misapplication of the sentencing guidelines
in a § 2255 motion. See Scott v. United States, 997 F.2d 340, 342-43 (7th Cir. 1993).
However, Petitioner’s ineffective assistance of counsel claim, based on the failure to
object to the sentence calculation, is cognizable. See Massaro, 538 U.S. at 504.
Petitioner was convicted of failure to register as a sex offender, in violation of
18 U.S.C. § 2250. (Doc. 1 at 1). Under the sentencing guidelines, the base offense
level is determined by calculating which “tier” the offender falls under based on the
underlying sex offense. U.S. Sentencing Guidelines Manual § 2A3.5. The base
offense level for a Tier III offender is 16, for Tier II offenders it is 14, and for Tier I
offenders it is 12. The tiers are defined in 42 U.S.C. § 16911.
The PSR stated that Petitioner’s underlying sex offense made him a Tier III
offender, which corresponds with a base offense level of 16. (11-cr-10054, Doc. 15 at
6
5). Petitioner argues that he should have been a Tier II or even possibly a Tier I
offender, which would have resulted in a lower base offense level. (Doc. 1 at 5-7).
Petitioner was required to register as a sex offender because of a conviction for
Aggravated Criminal Sexual Abuse, in violation of 720 Ill. Comp. Stat. 5/12-16(d)
(current version at 720 Ill. Comp. Stat. 5/11-1.60). Petitioner argues that his offense
would make him a Tier II offender at most, because Tier III offenses only involve
force, threat of force, or victims under the age of thirteen. (Doc. 1 at 6-7).
Under 42 U.S.C. § 16911, an offense must be “comparable to or more severe
than” the listed crimes to fall under that tier. To be a Tier III offender, the offense
must be punishable by more than a year of prison and be comparable to or more
severe than the specified examples: “aggravated sexual abuse or sexual abuse (as
described in sections 2241 and 2242 of Title 18)” or “abusive sexual contact . . .
against a minor who has not attained the age of 13 years.” 42 U.S.C. § 16911(4)(A).4
A Tier II offender is an offender whose offense is punishable by imprisonment for
more than a year and is comparable to or more severe than the enumerated
examples. Id. at § 16911(3). Finally, a Tier I offender is a sex offender who does not
come within the other two tiers. Id. at § 16911(2).
In determining under which tier an offender falls, if the applicable criminal
statute proscribes different types of conduct that would place an offender in
different tiers, the Court may consider additional materials, including the charging
instrument. See United States v. Taylor, 644 F.3d 573, 576-77 (7th Cir. 2011), cert
Tier III offenses also include those involving kidnapping or committed after the
offender becomes a Tier II offender, but neither of those are relevant to this case.
4
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denied, 132 S. Ct. 1049 (2012). This is called the modified categorical approach.
Here, the Illinois statute for Aggravated Criminal Sexual Abuse proscribes a wide
range of conduct, including sexual abuse involving use or threat to use a weapon
and sexual abuse of a physically handicapped person. 720 Ill. Comp. Stat. 5/12-16.
Some of the proscribed conduct may qualify the offender as a Tier III offender under
42 U.S.C. § 16911, but not all of it. Thus, the modified categorical approach requires
looking beyond the title of the statute and determining which specific offense was
committed.
It is undisputed that Petitioner was convicted under subsection (d) of the
Illinois Aggravated Criminal Sexual Abuse statute, which prohibits “an act of
sexual penetration or sexual conduct with a victim who is at least 13 years of age
but under 17 years of age and the person is at least 5 years older than the victim.”
720 Ill. Comp. Stat. 5/12-16(d). It appears no court has decided under which tier
Petitioner’s specific sex offense falls. However, it seems clear that Petitioner’s prior
sex offense was not of a nature that would qualify him as a Tier III offender.
Respondent concedes as much in its brief. (Doc. 14 at 20).5 Thus, Petitioner’s
counsel’s failure to object to the base offense calculation in the PSR was an error.
To satisfy the performance prong for an ineffective assistance of counsel
claim, however, counsel’s performance must fall below an “objective standard of
reasonableness under prevailing professional norms.” Shell v. United States, 448
F.3d 951, 954 (7th Cir. 2006). There is a strong presumption that counsel is
The government argues that Petitioner’s offense “would certainly fit into Tier II.”
(Doc. 14 at 20). However, that is not entirely clear, and is best resolved through
resentencing.
5
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effective. E.g., Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000). Though
the entire course of representation may be taken into consideration, the right to
effective counsel can be violated by “even an isolated error of counsel if that error is
sufficiently egregious and prejudicial.” Murray v. Carrier, 477 U.S. 478, 496 (1986).
For example, deficient performance has been found where counsel failed to make an
argument based on case law from other circuits that certain offenses should be
grouped for sentencing purposes. United States v. Glover, 149 F. Supp. 2d 371, 38081 (N.D. Ill. 2001).
Here, though Petitioner’s counsel performed adequately in most respects, his
failure to challenge the base offense level based on a Tier III offender determination
was deficient performance, far below an objective standard of reasonableness. A
defense attorney has an obligation to review the PSR and ensure its accuracy. The
guidelines range calculation is especially important, as it is the starting point from
which the sentence is determined. Though perhaps not as obvious as many
sentencing guidelines, an attorney should be able to calculate the proper tier under
sentencing guideline § 2A3.5 and 42 U.S.C. § 16911. There may be close cases in
which the failure to discover and raise the issue of an improper tier under guideline
§ 2A3.5it would not be deficient. This is not one of those cases. Petitioner’s offense
clearly did not involve force or threat of force or a victim under the age of 13, so
certainly did not qualify him as a Tier III offender. Additionally, this could not have
been a strategic decision on counsel’s part. This error was egregious and important
enough to constitute ineffective assistance.
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Respondent gestures to an indictment for Predatory Criminal Sexual Assault
of a Child, which was the first charge filed against Petitioner in the state case that
led to his sex offense conviction, and was included in the discovery materials from
the criminal case. Respondent seems to hint that perhaps counsel mistakenly
thought Petitioner was convicted of this crime, which involves a child under twelve
and would be a Tier III offense. However, this charge was dropped, and the record
clearly shows that Petitioner was convicted of Aggravated Criminal Sexual Abuse
based on sexual conduct with a victim between thirteen and seventeen. If counsel
did make this mistake, it would certainly not support an argument that his
performance was within the standard of reasonableness.
Petitioner also must show prejudice by his counsel’s deficient performance.
For a claim that counsel failed to raise an argument at sentencing, the Petitioner
must show “a reasonable probability that his underlying argument would have been
accepted at the sentencing hearing.” Welch v. United States, 604 F.3d 408, 425 (7th
Cir. 2010). As Respondent begrudgingly admits, any increase in the length of
incarceration due to guidelines miscalculation constitutes prejudice. Glover v.
United States, 531 U.S. 198, 204 (2001). Though Glover was decided before the
guidelines were held to be advisory, the principle has been reaffirmed since. See,
e.g., United States v. Jones, 635 F.3d 909, 916 (7th Cir. 2011) (“In the sentencing
context, an attorney's unreasonable failure to identify and bring to a court's
attention an error in the court's Guidelines calculations that results in a longer
sentence may constitute ineffective assistance entitling the defendant to relief.”).
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Even if, as Respondent argues, Petitioner’s guideline range should be calculated as
thirty to thirty-seven months, (Doc. 14 at 19), such that his current sentence still
falls within the range, Petitioner has been prejudiced. This Court sentenced
Petitioner to the bottom of the guidelines range, stating “I have been thinking of a
basis to sentence you below the advisory guideline range, and I can’t find one.” (11cr-10054, Doc. 23 at 28). Had Petitioner’s counsel alerted the Court to the
improperly calculated offense level and guidelines range, there is a reasonable
probability Petitioner would have received a lower sentence. Thus, he was
prejudiced by his counsel’s deficient performance and is entitled to relief.
CONCLUSION
For the foregoing reasons, Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is GRANTED. The Court will
schedule the case for resentencing. IT IS SO ORDERED.
Entered this 11th day of February, 2013.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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