Sullivan v. United States of America

Filing 10

ORDER and OPINION entered by Chief Judge James E. Shadid on 11/2/15. Sullivan's Motion to Vacate, Set Aside, or Correct Sentence pursuant to § 2255 1 is DENIED. This matter is now terminated. SEE FULL WRITTEN ORDER. (FDT, ilcd)

E-FILED

Monday, 02 November, 2015 09:28:35 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS

MATTHEW G. SULLIVAN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 15-1280

ORDER
This matter is now before the Court on Petitioner, Matthew G. Sullivan’s (“Sullivan”),
Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set
forth below, Sullivan’s § 2255 Motion [1] is DENIED.
BACKGROUND
On August 22, 2012, Sullivan was indicted on a charge of conspiracy to manufacture,
distribute, and possess with the intent to distribute more than 280 grams of crack cocaine. In
February 2014, he was also charged in a superceding indictment with conspiracy to distribute and
possess with the intent to distribute at least 280 grams of crack cocaine. The Government notified
Sullivan of its intent to seek an enhanced sentence under 21 U.S.C. § 841(b)(1)(A), which would
have had him facing a mandatory life sentence due to his two prior felony drug convictions and the
drug weight involved in the conspiracy.
The Government then extended a proposed plea agreement to Sullivan’s counsel providing
for Sullivan to plead guilty to the conspiracy count, an agreed sentence of 26 years’ imprisonment,
and the Government’s reliance on only one of his prior felony drug convictions for purposes of
sentence enhancement. Sullivan accepted the plea offer, providing for a sentence of 26 years’

imprisonment pursuant to Fed.R.Crim.P. 11(c)(1)(C), on March 6, 2014, after a lengthy plea
colloquy. The document further provided the parties’ agreement that Sullivan was only eligible for
a two-level decrease for acceptance of responsibility, was responsible for at least 2.8 kilograms but
less than 8.4 kilograms of crack cocaine, and was eligible for a four-level increase for role in the
offense. That being said, there was no agreement as to Sullivan’s total offense level or criminal
history category. Despite an advisory guideline range of 360 months to life, Sullivan was sentenced
to 312 months’ imprisonment pursuant to the agreed term agreement.
Sullivan now brings this § 2255 motion in which he argues that his guilty plea was not
knowingly and voluntarily made due to counsel’s ignorance of relevant law . The Government has
filed its response, and this Order follows.
DISCUSSION
A petitioner may avail himself of § 2255 relief only if he can show that there are “flaws in
the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result
in a complete miscarriage of justice.” Boyer v. United States, 55 F.2d 296, 298 (7th Cir. 1995), cert.
denied, 116 S.Ct. 268 (1995). Section 2255 is limited to correcting errors that “vitiate the sentencing
court’s jurisdiction or are otherwise of constitutional magnitude.” Guinan v. United States, 6 F.3d
468, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993).
A § 2255 motion is not, however, a substitute for a direct appeal. Doe v. United States, 51
F.3d 693, 698 (7th Cir.), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States, 75 F.3d 1174,
1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to circumvent decisions
made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982);
Doe, 51 F.3d at 698. Accordingly, a petitioner bringing a § 2255 motion is barred from raising: (1)
issues raised on direct appeal, absent some showing of new evidence or changed circumstances; (2)

-2-

nonconstitutional issues that could have been but were not raised on direct appeal; or (3)
constitutional issues that were not raised on direct appeal, absent a showing of cause for the default
and actual prejudice from the failure to appeal. 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, 710-20 (7th Cir.
1994).
Sullivan would appear to be barred from bringing this § 2255 motion by virtue of the fact that
his plea agreement contains a waiver of his right to bring a collateral attack on his sentence. So long
as the plea agreement stands, the waiver of the right to appeal or pursue collateral relief must
generally be enforced. Id., citing United States v. Wagner, 103 F.3d 551 (7th Cir. 1996); Jones v.
United States, 167 F.3d 1142, 1144-45 (7th Cir. 1999) (finding that the right to appeal can survive
a waiver where the agreement itself is involuntary, the trial court relied on a constitutionally
impermissible factor, or the sentence exceeded the statutory maximum). The validity of the appeal
waiver depends on whether the waiver was “express and unambiguous” and whether the record
clearly shows that the waiver was made “knowingly and voluntarily.” United States v. Woolley, 123
F.3d 627, 632 (7th Cir. 1997)
Sullivan attempts to void the plea agreement and waivers contained therein by claiming that
he received ineffective assistance of counsel. The seminal case on ineffective assistance of counsel
is Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for
a prisoner to demonstrate that counsel's performance fell below the constitutional standard, the
petitioner would have to show that "counsel's representation fell below an objective standard of
reasonableness." Strickland, 466 U.S. at 687-88. A prisoner must also prove that he has been
prejudiced by his counsel's representation by showing "a reasonable probability that but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id. at 694. The

-3-

courts, however, must "indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Id. at 690.
To satisfy Strickland’s prejudice prong in this case, Petitioner must demonstrate through
objective evidence a reasonable probability that, but for counsel’s purportedly erroneous advice, he
would not have entered the guilty plea and would have insisted upon going to trial. Woolley, 123
F.3d at 635. “It is far from obvious how a petitioner is expected to make such a showing, but it is
clear that ‘merely making such an allegation is insufficient.’” United States v. Ryan, 986 F.Supp.
509, 513 (N.D.Ill. 1997), citing Key, 806 F.2d at 139; see also McCleese v. United States, 75 F.3d
1174, 1179 (7th Cir. 1996) (requiring that the petitioner establish through objective evidence that he
would not have accepted the plea).
Here, Sullivan argues that his plea (which included waivers of the right to bring a direct
appeal and collateral attack) was not knowingly and voluntarily entered into as a result of ineffective
assistance of counsel. Specifically, he claims that he repeatedly requested a requirement that his
prison term be within a defined range or follow from a shared assessment that a particular range
applied as provided by Freeman v. United States, 131 S.Ct. 2685, 2697 (2011), and insurance that
he would be able to benefit from any amendment to the Guidelines that would reduce his offense
level. But for counsel’s advice that Freeman did not apply to him because he was a career offender,
Sullivan claims that he would not have accepted the plea offer and caused himself to forfeit the
opportunity to benefit from a reduction under Amendment 782.
Sullivan’s counsel, Rob Alvarado, has filed an Affidavit in this matter. In the Affidavit,
Attorney Alvarado states that there was no discussion about the inclusion of a guideline range when
Sullivan rejected the first plea agreement; rather, following a lengthy discussion, Sullivan rejected
the agreement because of the amount of prison time (288 months) and for personal family reasons.

-4-

Attorney Alvarado’s Affidavit indicates that Sullivan’s main objective was to achieve a lower term
of imprisonment, which he unsuccessfully attempted to do. The Government had already agreed to
lower the agreed sentence from 324 months to 288 months and drop a 2-level gun enhancement,
which would potentially allow Sullivan to obtain a one-year sentence reduction for successfully
completing the RDAP program. At no time did Sullivan state that he would accept the plea
agreement if it would include a guideline range.
While Attorney Alvarado was preparing for trial, including going over the evidence with his
client and discussing possible defenses, Sullivan asked if the plea agreement was still available and
instructed Alvarado to tell the Government that he was interested in pleading guilty. The
Government indicated that the agreement was still available but would not be considered timely and
would require a 312-month term of imprisonment. The Affidavit states that Attorney Alvarado and
Sullivan had another lengthy discussion about the proposal, and Sullivan accepted it. Again, he
asserts that Sullivan’s main objective was the amount of prison time, given that the alternative was
life imprisonment if convicted of the most serious charges.
Sullivan did raise the issue of Freeman’s applicability to his case sometime after rejecting
the initial plea offer. Attorney Alvarado explained to him that as a career offender, § 3582 relief
would not be available to him because no retroactive amendment to the guidelines would affect that
status; he also advised Sullivan that the plea agreement being offered was non-negotiable. While
neither plea agreement stated that Sullivan would be a career offender, both agreements noted the
possibility that the Court could determine that he was a career offender, and the offers were both
within the range that he would have faced as a career offender.
A review of the transcript of the plea hearing reveals that Sullivan had completed several
years of college education. After a detailed discussion of the maximum sentence he could face,

-5-

Sullivan received a lengthy explanation of the waiver provision and its consequences during the plea
colloquy.

As set forth below, this explanation was more than sufficient to remedy any

misinformation (or lack of information) that may have been provided by his counsel with respect to
the waiver or penalty provisions, and hence, he has failed to demonstrate actual prejudice under
Strickland. This same dialogue also demonstrates the knowing and voluntary nature of Sullivan’s
waiver and guilty plea, as well as his competency.
When the Court accepted Sullivan’s guilty plea, it held a lengthy change of plea hearing
pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Rule 11 “provides protection for
those who voluntarily choose to waive their constitutional right to a trial by pleading guilty while
ensuring an adequate record to insulate the plea from appellate and collateral attacks.” Key v. United
States, 806 F.2d 133, 136 (7th Cir. 1986). Rule 11 also provides for a colloquy that “exposes the
defendant’s state of mind in the record through personal interrogation.” Id., citing United States v.
Fountain, 777 F.2d 351, 356 (7th Cir. 1985). This aspect of the Rule 11 hearing is especially
important with respect to subsequent collateral proceedings, because the representations made by
the defendant during a plea colloquy, as well as any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent collateral proceeding. Id., citing Thompson v.
Wainwright, 787 F.2d 1447 (11th Cir. 1986); Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 1629
(1977). Furthermore, “[s]olemn declarations in open court carry a strong presumption of verity.”
Blackledge, 97 S.Ct. at 1629.
After a careful review of the transcript of Petitioner’s Rule 11 hearing, the Court finds that
he has failed to overcome the strong presumption of verity which attached to the statements of
voluntariness and understanding that he made during that hearing. The pertinent portion of the
record reveals the following colloquy between Sullivan and the Court after he was placed under oath:

-6-

THE COURT:
. . . Mr. Alvarado, have you had
a chance to go over the superseding indictment with
Mr. Sullivan?
MR. ALVARADO:

I have, Judge.

THE COURT:
And do you believe any further
reading or explanation is required?
MR. ALVARADO:

No. We will waive that.

THE COURT:
And are you ready then to
proceed to the plea through the plea agreement as it
pertains to the superseding indictment?
MR. ALVARADO: We are, Judge, and the plea is
to Count 1 of the superseding indictment.
THE COURT:
Okay. Which is conspiracy to
manufacture, distribute, and possess with intent to
distribute cocaine base?
MR. ALVARADO:

Yes, Judge.

THE COURT:
The plea also is -- okay, and
Mr. Sullivan, is that your understanding?
THE DEFENDANT: Yes, Your Honor.
THE COURT:
forward, sir?

Okay. Are you prepared to go

THE DEFENDANT: Yes, Your Honor.
THE COURT:
Okay. Would you stand and
raise your right hand please?
(The defendant was sworn.)
BY THE COURT:
Q.
All right. Very good. Okay. Mr. Sullivan,
you're now under oath. I'm going to ask you a number
of questions about the plea agreement. We will go
over it. If you have any questions or you do not hear
me, please ask me to repeat it. If you answer my
-7-

questions, I can only assume that you heard it and/or
understood it; fair enough?
A.

Fair enough.

Q.
Have you received a copy of the superseding indictment
against you and have you had a chance to discuss your case
fully with Mr. Alvarado?
A.

Yes, Your Honor.

Q.
Have you had a chance to read and discuss this plea
agreement with Mr. Alvarado before you signed it?
A.

Yes, Your Honor.

Q.
Do you think that you understand the terms of the plea
agreement?
A.

I fully understand them, Your Honor.

Q.
Does the plea agreement represent the entire
understanding that you have with the government?
A.

Yes, Your Honor.

Q.
Has anyone made any promises or assurances to you
that are not in the plea agreement in order to get you to plead
guilty?
A.

No, Your Honor.

Q.
Has anyone threatened you in any way to get you to
accept this plea agreement?
A.

No, Your Honor.

Q.
The offense you are pleading guilty to is a felony
offense. And if your plea is accepted, you will be adjudged
guilty of that offense and that adjudication may deprive you of
valuable civil rights such as the right to vote, the right to hold
public office, the right to serve on a jury and the right to possess
any kind of a firearm. Do you understand that?
A.

Yes, I do, Your Honor.

-8-

Q.
Page two then, paragraph five says that you're going to
plead guilty to Count 1. Paragraph 7 are the elements of the
charges against you which the government would have to prove
beyond a reasonable doubt. First, the conspiracy in Count 1
existed. And second that you knowingly became a member of
the conspiracy with an intention to further the conspiracy, and
that is, as charged, the conspiracy to manufacture, distribute,
and possess with the intent to distribute cocaine base. Do you
understand the elements of the charges against you?
A.

Yes, Your Honor.

Q.
And that the government would have to prove those
beyond a reasonable doubt before you could be convicted?
A.

Yes, Your Honor.

Q.
There is, further in paragraph seven, to establish the
mandatory minimum sentence of 20 years and to increase the
statutory maximum term of imprisonment to life, the United
States would have to prove beyond a reasonable doubt that the
conspiracy involved at least 280 grams of cocaine base and that
the amount of cocaine base attributable to you through your
conduct and the conduct of your co-conspirators was reasonably
foreseeable to be 280 grams. Do you understand that, sir?
A.

Yes, Your Honor.

Q.
All right. Paragraph 8, it indicates that only one prior
felony drug conviction will be relied upon for the purpose of
enhancing your sentence. That would mean that the crime
you're pleading guilty to carries at least 20 years in prison and
up to life in prison, a fine of up to $20 million, at least ten years
and up to a lifetime of supervised release, a $100 special
assessment, and the forfeiture of items that are going to be listed
in the forfeiture which we will address those in a little bit. Do
you understand that?
A.

Yes, I do, Your Honor.

Q.
Supervised release term has its own terms and
conditions. Any violation of those terms and conditions could
result in your supervised release period being revoked and you
being imprisoned for all or part of the supervised release period
without credit for time previously served.
Do you have any
questions about that?
-9-

A.

No, Your Honor.

Q.
Restitution, I don't know if that's at issue or not. If it is
at issue, it is something that will be determined at a sentencing
hearing, that is, if there are any victims or costs that are
associated under the Restitution Act that I should impose. I will
be made aware of those. Both sides will have
a
n
opportunity to be heard. I will make that determination at the
sentencing. Do you understand that?
A.

Yes, Your Honor.

Q.
Paragraphs 11 and 12 talk about appeal rights and your
waiver of those rights and rights to collateral attack and the
waiver of those rights. Federal law affords you a right to appeal
the final decision of the district court including the conviction
and/or the sentence imposed. Paragraph 11 goes on to tell me
that you understand these rights of appeal; that you have
thoroughly discussed these with Mr. Alvarado; that you
knowingly and voluntarily waive your right to appeal any and
all issues relating to this plea agreement to the conviction and
to the sentence so long as this sentence of imprisonment is 312
months and the amount of any fine or restitution and term of
supervised release are served within the maximum provided in
the statutes of conviction. Do you understand that?
A.

Yes, Your Honor.

Q.
And that you're doing this in order to enter into this
agreement with the government. Do you understand that?
A.

Yes, Your Honor.

Q.
Paragraph 12 discusses a different type of postconviction attack. You have the right to attack the conviction
and/or the sentence imposed collaterally on the grounds that it
was imposed in violation of the Constitution or laws of the
United States, or that you received ineffective assistance from
your attorney, or that the Court was without proper jurisdiction,
or that the conviction and/or the sentence was otherwise subject
to collateral attack. This paragraph again goes on to tell me that
you fully understand this right that you have, that you have
discussed this thoroughly with Mr. Alvarado, that you
knowingly and voluntarily waive this right to collateral attack
the conviction and/or the sentence with one exception, and that
- 10 -

is you may raise on collateral attack the claims which relate
directly to the negotiation of the waiver. Do you understand
that?
A.

Yes, Your Honor.

Q.
Other than that you waive this right in order to enter
into this agreement with the government; is that correct?
A.

Yes, Your Honor.

Q.
Okay. Now I understand that this is an agreement to
312 months; is that your understanding?
A.

Yes, Your Honor.

Q.
If I don't accept this agreement, you will have a right
to withdraw your guilty plea. Do you understand that?
A.

I do, Your Honor.

Q.
Nonetheless though, a presentence report is going to be
ordered and there is going to be a calculation of the advisory
sentencing guidelines as we are required to do. Okay? And those
advisory sentencing guidelines will set forth what I'd ultimately
determine the sentence would be other than this if it were not for this
plea agreement. Do you understand that?
A.

I understand that.

Q.
So I'm pretty sure that you and Mr. Alvarado have had a
chance to discuss how the Sentencing Guidelines might apply, I
would assume, in negotiating this deal here; is that correct?
A.

Yes, Your Honor.

THE COURT:
Mr. Alvarado, when you had these
discussions, can you tell me where you thought the ballpark might
be?
MR. ALVARADO: Certainly. Your Honor, if my client was not
facing mandatory life in prison, he would be considered a career
offender under the Sentencing Guidelines. Therefore his guideline
range would be 262 to 327 months.

- 11 -

BY THE COURT:
Q.
All right. Mr. Sullivan, in spite of the agreement, the
guidelines have to be correctly calculated and so a probation report is
going to be completed. You, Mr. Alvarado, and Mr. Walters would
you have an opportunity to review that report and challenge any
reported facts as reported by the Probation Office. So, if there had
been no agreement as to what the sentence would be then any
estimate Mr. Alvarado gave you might be different from the sentence
I might impose. Do you understand that?
A.

I fully understand that.

Q.
With that in mind then there are also, under different
circumstances, opportunities for departures, not opportunities, but the
law allows me to depart upward or downward from that range as it is
determined depending on certain factors. So the imposition of a
sentence could be greater or lesser than any guideline range sentence.
Do you understand that?
A.

I do understand that.

THE COURT:
With that in mind, is there
anything else the parties need to be addressed before
I ask Mr. Sullivan how he pleads?
MR. WALTERS:

Not from the United States, Your Honor.

MR. ALVARADO:

Nothing else, Your Honor.

THE COURT:
Okay. In that regard then, Mr. Sullivan, how
do you plead to conspiracy to manufacture, distribute, and possess
with the intent to distribute cocaine base?
THE DEFENDANT: Guilty.
THE COURT:
I find that you are fully competent and capable
of entering an informed plea; that you are aware of the nature of the
charges and the consequences of the plea; that the plea of guilty is a
knowing and voluntary plea supported by an independent basis in fact
containing each of the essential elements of the offense.
Gentlemen, given that this case has gone on for some time, and I'm
very familiar with the amount of discovery and the amount of time
that you have both put into this, and, Mr. Alvarado, you
specifically with Mr. Sullivan, I have options to defer accepting this
- 12 -

plea until after a Presentence Report is done, but I can also accept it
today as well. Is there -- does anybody wish to be heard on me
deferring? Otherwise, I'm willing to accept this.
MR. WALTERS:
Your Honor, we would ask that you accept it.
I'm certain his guideline range is going to be come in within the range
that we've agreed to. I don't think that there will be a basis for the
Court to reject, but I leave it to your discretion, but we have no
objection your accepting.
MR. ALVARADO: Your Honor, we would ask that you accept the
plea agreement today because we know for a fact that the advisory
range would be 262 to 327.
THE COURT:
Okay. Then I will accept the plea. I will accept
the plea. And you are now adjudged guilty of that offense.
During the presentence investigation, the probation officer determined that Sullivan
would be a career offender as a result of his prior felony convictions. Sullivan objected to the
proposed findings regarding the drug quantity, possession of a firearm during the offense, a
pattern of criminal conduct as a livelihood, and role in the offense. He also argued that he was
entitled to a two-level reduction pursuant to Amendment 782. The Government objected to this
request, asserting that because this was an agreed term plea, “any amendment to the advisory
guidelines that affects the base offense level will not have an impact on the agreed sentence of
imprisonment.” Sullivan then withdrew his request for the two-level reduction and objection to
the role in the offense enhancement. After resolving the objections, the applicable guideline
range was 360 months to life, well above the 312 months provided in the plea agreement, and
Sullivan was sentenced to 312 months’ imprisonment.
Even assuming that counsel’s performance was deficient, Sullivan fails to demonstrate
prejudice by showing that but for the alleged errors, the result of the proceeding would have been
different. This is because the inclusion of either of the exceptions set forth in Freeman would not
change the outcome in his case.
- 13 -

Although a final sentence may be modified when a defendant has been sentenced based
on a sentencing range that was subsequently lowered by the Sentencing Commission, a reduction
can only be made where the sentence was based on the subsequently lowered range and the
reduction would not contravene the policy statements of the Sentencing Commission. United
States v. Stevenson, 749 F.3d 667, 669 (7th Cir. 2014). In determining whether a sentence should
be reduced, Sentencing Commission policy statements indicate that the court should substitute
only the amended Guidelines, “leaving all other guidelines decisions made during the initial
sentence unaffected.” Id., at 670.
The Seventh Circuit has held that where, as here:
[A] defendant’s conduct-based offense level exceeds the career
offender guideline . . . and the defendant is sentenced based on the
higher offense level, his sentence cannot be later reduced below the
career offender level, provided the original sentencing court found
that he was a career offender.
Id. In this case, Sullivan’s career offender guidelines would have been 292 to 365 months,
whereas his offense based guidelines were 360 to life imprisonment, and the Court clearly found
him to be a career offender. Under Stevenson, a further reduction would reduce his term below
the career offender guidelines and therefore be inconsistent with the Sentencing Commission’s
policy statements. See also, United States v. Williams, 694 F.3d 917, 919 (7th Cir. 2012)
(holding that a reduction would not be available to career offender where career offender offense
level exceeded offense level as reduced under U.S.S.G. § 2D1.1.) As such, Sullivan would not
be entitled to any further reduction even if his agreed term plea agreement had contained a
Freeman exception, and he has failed to demonstrate prejudice from counsel’s representation. He
is therefore not entitled to the relief requested.

- 14 -

CERTIFICATE OF APPEALABILITY
To obtain a certificate of appealability, a petitioner must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C § 2253(c)(2). The petitioner must also show that
“jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present
and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.” Id.
Here, no reasonable jurist could conclude that Sullivan’s claim was not flatly contradicted
by the law of this Circuit. Accordingly, this Court will not issue him a certificate of
appealability.
CONCLUSION
For the reasons set forth herein, Sullivan’s Motion to Vacate, Set Aside, or Correct
Sentence pursuant to § 2255 [1] is DENIED. This matter is now terminated.
ENTERED this 2nd day of November, 2015.

s/ James E. Shadid
James E. Shadid
United States District Judge

- 15 -