Sanford v. USA

Filing 10

ORDER AND OPINION entered by Chief Judge James E. Shadid on 2/8/2018. For the reasons set forth above, Petitioners Motion (Doc. 1 ) is DENIED and the Court declines to issue a Certificate of Appealability. SEE FULL WRITTEN ORDER. (JS, ilcd)

E-FILED

Thursday, 08 February, 2018 03:17:44 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
GREGORY SANFORD,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 17-1003

ORDER AND OPINION
Now before the Court is Petitioner Sanford’s Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255. Doc. 1. For the reasons set forth below, Petitioner’s Motion
(Doc. 1) is DENIED and the Court declines to issue a Certificate of Appealability.
BACKGROUND 1
On March 26, 2014, a grand jury in the Central District of Illinois charged Gregory
Sanford in a fourth superseding indictment with seven counts: conspiracy to distribute and
possession with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846
and 841(b)(1)(A) (Count One); possession of cocaine base with intent to distribute, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts Two, Six); possession of cocaine with the intent
to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1) (Counts Five, Seven); possession
of a firearm by a felon, in violation of 18 U.S.C. § 922(g) (Count Three); and possession of a
firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count
Four). R. 102.

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Citations to documents filed in this case are styled as “Doc. __.” Citations to the record in the underlying criminal
case, United States v. Sanford, No. 12-10069 (C.D. Ill.), are styled as “R.__.”

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Prior to trial, the Government filed a notice (later amended) under 21 U.S.C. § 851
informing Sanford that it intended to use three of his prior felony drug convictions to enhance his
sentence. R. 26, 111. Sanford proceeded to trial pro se. On the day of trial, the Court made the
following remarks to Sanford:
Before we begin jury selection for—okay. Mr. Sanford, before we begin the jury
selection, I want to go over a few things with you. You’re facing a number of
counts in the fourth superseding indictment. We will start with Count 1; that
alleges the conspiracy—that alleges more than 5000 grams of a mixture and
substance containing a detectable amount of cocaine and more than 280 grams of
a mixture and substance containing a detectable amount of cocaine base. You are
charged under Title 21, United States Code Section 841(b)(1)(A). I know that
these have been gone over with you before. I just want to make sure you are
aware of—I want to go over it again to assure myself that you completely
understand what the risks are here. I’m not interfering at all. I’m not—I don’t
want my remarks to be interpreted in any way telling you what to do. But I do
want to make sure that you understand what it is you are doing.
If you had a lawyer, I would leave this alone unless asked to do so. But I
understand from you being in court last week that you and the government have
been in some discussion about resolving the matter. I don’t know the details of
that discussion. If you wish for me to know, then that’s fine. That will be up to
you. But in the meantime, I just want you to know that if you are convicted of
Count 1, and if you have a prior conviction, drug conviction, then the sentence
would have to be a minimum of 20 years in prison. And if you are convicted of
Count 1, and you have two or more prior drug convictions, then the sentence
would have to be a mandatory term of life in prison. I would have no discretion
under those scenarios to impose a sentence other than that.
So, I don’t know—I know what you have said when you have been in pretrials. I
know that you’ve mentioned numbers that you want. I know what the codefendant got because I sentenced Mr. Jackson. I just—if you and the government
have had negotiations and you can still come to some resolution, I will still accept
it. If you can’t, then we will go forward. I just want you to be aware of the risk
that you’re taking. And again, I don’t want this to be interpreted in any way for
me to tell you what to do. If you are not guilty of these charges, you should just
go right on through with your trial, if that’s what you want to do. But if you
believe there is a chance that you could be found guilty, then I will give you—and
[if] you want to have a moment with your family or with Mr. Chambers and Mr.
Murphy if they are willing, we will do that, because once we start jury selection,
generally the case will go to trial and they will decide. And once they decide, I
may have no discretion but to impose a sentence that is really, really significant.

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And you are not—I mean you’re still a young person. So I just want you to make
an informed choice here.
Change of Plea Transcript, R. 147, at 2–4 (emphasis added). Sanford took the opportunity and
met with the Assistant U.S. Attorney. When the proceedings resumed, the Government stated the
following:
Your Honor, we have had a chance to talk, government counsel and the defendant,
and I think we have reached an agreement—I’ll let Mr. Sanford confirm this. He
will plead to the original charge in this case, that’s now Count 5, that’s the car
stop on February 28th with the kilo and a half of powder cocaine. He will plead
guilty to that charge in return for two things. One—that’s a [21 U.S.C. § 841]
(b)(1)(B) charge, which means that his criminal history, prior felony drug
conviction, he would be facing at least ten to life but the parties would agree to an
agreed-to sentence of 15 years if the Court accepted it. And that he could reserve
his right to appeal the Court’s denial of his motion to suppress. Those are the only
two terms of the plea agreement: 15 years firm, and he can reserve his right to
appeal the Court’s denial of his motion to suppress filed, I think, by Mr. O’Day, at
least argued by Mr. O’Day.
Id. at 5–6 (emphasis added). The Court proceeded with the usual plea colloquy to ensure that
Sanford was making an informed and voluntary decision to plead guilty, and again informed him
of the potential penalties under § 841(b)(1)(B) with and without prior felony drug convictions.
Id. at 15. Following the examination by the Court, Sanford pleaded guilty. Id. at 19.
The probation officer prepared a presentence report (“PSR”) prior to sentencing. The PSR
designated Sanford as a career offender based on his two prior felony convictions for unlawful
delivery of a controlled substance in Peoria County, Illinois, Case Nos. 00-CF-971 and 00-CF972. PSR, R. 130, at ¶ 43. Sanford’s guideline range was 262 to 327 months of imprisonment, id.
at ¶ 86, but because Sanford pleaded guilty under Federal Rule of Criminal Procedure
11(c)(1)(C), the Court sentenced him to a term of 180 months of imprisonment and 8 years of
supervised release. Sanford then appealed the denial of his prior motion to suppress as he was
permitted to do as part of his conditional plea agreement, see Fed. R. Crim. P. 11(a)(2), and the

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conditions of his supervised release. The Seventh Circuit affirmed the denial of his motion to
suppress, but remanded for resentencing regarding the terms of supervised release. United States
v. Sanford, 806 F.3d 954 (7th Cir. 2015). On February 25, 2016, the Court resentenced Sanford to
the same term of imprisonment. R. 166.
On January 5, 2017, Sanford filed the instant Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255. Doc. 1. Therein, Sanford argues that (1) the Court should not
have adopted the findings in the PSR that held him accountable for an additional 236 grams of
crack cocaine; (2) the Court incorrectly advised him that he faced a mandatory minimum
sentence of life imprisonment; (3) the Court incorrectly designated him to be a career offender;
and (4) the Government should not have filed a notice of prior convictions under § 851 based on
a memorandum from the Attorney General to U.S. Attorneys. The Government responded and
objected to Sanford’s motion, arguing that (1) he procedurally defaulted his claims; (2) the
alleged calculation error is not correctable on collateral review; (3) his guidelines calculation is
irrelevant in light of his agreed-upon sentence, and (4) his claims lack merit. Doc. 5. This Order
follows.
LEGAL STANDARD
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 a substitute for a direct appeal. Doe v. United States, 51 F.3d

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693, 698 (7th Cir. 1995), 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)
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).
DISCUSSION
Sanford’s first, third, and fourth arguments can be discarded rather quickly. Sanford’s first
argument is that the Court should not have adopted the findings in the PSR that held him
accountable for an additional 236 grams of crack cocaine. That argument fails because he
procedurally defaulted the claim when he failed to raise it at sentencing or on direct appeal, and
the default may not be excused because he has not shown cause for the default or actual
prejudice from the failure to appeal. Barker v. United States, 7 F.3d 629, 632 (7th Cir. 1993). The
same holds true for Sanford’s third argument, challenging his career offender designation, and
fourth argument, challenging the Government’s decision to file a notice under § 851. Moreover,
an erroneous career offender designation is not correctable on collateral review. See Hawkins v.
United States, 706 F.3d 820, 823–24 (7th Cir. 2013), supp. on denial of reh’g, 724 F.3d 915 (7th
Cir. 2013). Finally, Sanford’s first, third, and fourth arguments are irrelevant because he pleaded

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guilty to an agreed-upon sentence; even if he were correct, none of the alleged errors would
affect the validity of his plea or the length of his sentence.
Sanford’s second argument—that the Court incorrectly advised him that he faced a
mandatory minimum sentence of life imprisonment—fares no better. As the excerpts from the
change of plea hearing show, the Court did not error in advising him of the potential statutory
penalties. Rather, the Court advised Sanford that if he were found guilty of Count 1, which
charged him with an offense under 21 U.S.C. § 841(b)(1)(A), and if he were to have a prior drug
conviction, he would face a statutory mandatory minimum of 20 years in prison. With two or
more prior drug convictions, he would face a mandatory minimum term of life imprisonment. R.
147, at 2–4. The Government’s § 851 notice identified three prior convictions (R. 111) that
“prohibit[] or restrict[] conduct relating to narcotic drugs ….” 21 U.S.C. § 802(44). Therefore,
the Court correctly advised Sanford of the potential penalties he faced if convicted of Count 1.
By agreeing to plead guilty to Count 5, which charged him with an offense under § 841(b)(1)(B),
Sanford avoided a mandatory life sentence. Moreover, the Court correctly advised him of the
potential statutory penalties for Count 5 before Sanford pleaded guilty. R. 147, at 15. For these
reasons, Sanford’s § 2255 motion must be denied.
CERTIFICATE OF APPEALABILITY
To obtain a Certificate of Appealability under § 2253(c), “a habeas prisoner must make a
substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473,
483–84 (2000). This means that the prisoner must show “that reasonable jurists could debate
whether … the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Id. at 484. Here,
Sanford’s arguments were either procedurally barred, foreclosed from review in a collateral

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proceeding, or factually without merit. Because reasonable jurists could not debate these
findings, the Court declines to issue a Certificate of Appealability.
CONCLUSION
For the reasons set forth above, Petitioner’s Motion (Doc. 1) is DENIED and the Court
declines to issue a Certificate of Appealability.

This matter is now terminated.
Signed on this 8th day of February, 2018.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge

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