Gunn v. United States of America
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 6/21/2018. Tequila J. Gunn's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody (Doc. 1 ) is DENIED. Case terminated. SEE FULL WRITTEN ORDER & OPINION.(JS, ilcd)
E-FILED
Thursday, 21 June, 2018 02:21:21 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
TEQUILA J. GUNN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 18-cv-1114
Honorable Joe B. McDade
ORDER & OPINION
Before the Court is a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence By A Person In Federal Custody (Doc. 1) filed by Tequila J. Gunn.
Ms. Gunn filed a memorandum of law in support of her motion and the Government
has responded. Ms. Gunn has failed to file a reply brief in the time allotted by the
Court. The Court sees no reason for further delay and rules on the motion forthwith.
For the reasons stated below, the motion is denied.
LEGAL STANDARDS
Section 2255 of Title 28 of the United States Code provides that a sentence
may be vacated, set aside, or corrected when such sentence was imposed in violation
of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack. “Relief under
§ 2255 is an extraordinary remedy because it 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). Section 2255
relief is limited to correcting errors of constitutional or jurisdictional magnitude or
errors constituting fundamental defects that result in complete miscarriages of
justice. E.g., Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994), overruled on
other grounds by United States v. Ceballos, 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) (citing Doe v. United States, 51 F.3d 693, 698 (7th Cir. 1995)).
BACKGROUND
On January 9, 2017, Ms. Gunn entered into a plea agreement with the
Government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A) and (C),
agreeing that this Court should sentence her to thirty-six months imprisonment for
one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C.
§ 841 and to a consecutive sentence of sixty months imprisonment for one count of
possession of a firearm in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c). Thus, her total term of imprisonment contemplated by the plea
agreement was ninety-six months (eight years). (Plea Agreement and Judgment,
United States v. Gunn, No. 16-cr-10024 (C.D. Ill. 2017), Docs. 21 and 27). She was
sentenced in accordance with the plea agreement on April 19, 2017. (Judgment,
United States v. Gunn, No. 16-cr-10024 (C.D. Ill. 2017), Doc. 27).
Relevant portions of Ms. Gunn’s plea agreement follow:
The parties agree that, pursuant to Federal Rule of Criminal Procedure
11(c)(l)(C), the Court shall sentence the defendant to 36 months’ (3
years’) imprisonment on count one and to a consecutive sentence of 60
months’ (5 years’) imprisonment on count two for a total term of
imprisonment of 96 months (8 years).
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***
The defendant is pleading guilty to count one in violation of 21 U.S.C.
§§ 841(a)(l) and 841(b)(l)(C) and count two of the indictment in violation
of 18 U.S.C. § 924(c).
***
The defendant will plead guilty to count one and count two of the
indictment because the defendant is in fact guilty of those charges. In
pleading guilty to count one and count two, the defendant stipulates to
and admits to the allegations set forth in count one and count two and
to the following facts:
On March 11, 2016, detectives of the Bloomington Police Department
obtained a state search warrant for GUNN’s residence at 409 E. Market
Street, Bloomington, Illinois. The search warrant was based two
controlled purchases of crack cocaine (0.9 g and 1.8 g) from GUNN that
had previously taken place in GUNN’s bedroom. During execution of the
warrant, agents seized a total of approximately 52 grams of crack
cocaine and 15 grams of powder cocaine. Of the total amount seized,
agents located a clear plastic bag containing 48.6 grams of crack inside
a shoe next to the dresser in GUNN’s bedroom. Fifteen (15) individually
wrapped baggies containing 3.7 g of crack cocaine were located in a
nightstand in the same room. One clear plastic bag containing 14.2
grams of powder cocaine was located inside a shoe next to the dresser in
GUNN’s bedroom as well as a separate clear plastic bag of powder
cocaine weighing 0.5 g which was found inside a sandal in the same
room.
A stolen Smith and Wesson .38 Special revolver was also located in
GUNN’s bedroom, inside of a hard shell gun case. The case was unlocked
and situated next to the dresser within feet of the [sic] controlled
substances. A box of Remington .38 Special ammunition with 41 live
cartridges was found inside the hard shell case as well. The revolver was
loaded and readily accessible.
The defendant stipulates and agrees that she possessed powder cocaine
and crack cocaine, that she knew that she possessed powder and crack
cocaine, and that she intended to distribute the powder cocaine and
crack cocaine to at least one other person. The defendant further
stipulates that she knowingly possessed a Smith & Wesson .38 Special
revolver handgun and that the gun was possessed to further the
possession and distribution of his narcotics by being available to protect
her and the place where her drugs and money were kept from robbery.
***
The defendant understands that by pleading guilty she surrenders the
following rights, among others:
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a. The right to plead not guilty or persist in the plea of not guilty if
already made. If the defendant persisted in a plea of not guilty to the
charges the defendant would have the right to a public and speedy trial.
b. The right to a trial by jury. The defendant has an absolute right to a
jury trial.
***
The defendant understands that by pleading guilty the defendant is
waiving all the rights set forth in the prior paragraph. The defendant’s
attorney has explained to the defendant those rights and the
consequences of the waiver of those rights.
(Doc. 21 et passim (emphasis added)).
Ms. Gunn signed the plea agreement, as did her counsel, who by signing, also
swore that he discussed the plea agreement fully with Ms. Gunn and was satisfied
that she fully understood its contents and terms. (Doc. 21 at 14). At the change of
plea hearing, the Court asked Ms. Gunn questions to ensure that she understood her
rights, including the right to go to trial, and understood the charges to which she was
pleading guilty, the statutory penalties and the guidelines range. (See Transcript of
Proceedings, Doc. 5-1 et passim). The Court also inquired from Ms. Gunn whether she
entered into the plea agreement with knowledge and on her own volition. Ms. Gunn’s
answers to the Court’s questions left no one in doubt that she knew she had a right
to a trial and that she was knowingly relinquishing that right. (See id.).
DISCUSSION
The Court has examined Ms. Gunn’s motion (Doc. 1) and memorandum in
support thereof (Doc. 3). In her motion, Ms. Gunn lists ineffective assistance of
counsel as the ground for her claim and then she lists three so-called facts as the basis
for her claim. (Doc. 1 at 4). First, she states her sentencing counsel gave her bad and
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fabricated advice as to why not to go to trial. Second, she claims counsel was
ineffective for not requesting a two point minor role reduction in her guidelines range
calculation or the safety valve. Third, she states her counsel was ineffective for not
presenting the Supreme Court case of Dean v. United States, 137 S. Ct. 1170 (U.S.
Apr. 3, 2017), in support of the Court giving her a lesser sentence for her drug
trafficking crime.
I.
Ineffective Assistance For Failure To Explain Plea Agreement And
For Failure To Effectuate Petitioner’s Wish To Go To Trial.
In her memorandum of law, Ms. Gunn expounds on the factual basis for her
claims. She states her request for trial “was never presented to the Court by Attorney
Carter.” (Doc. 3 at 4). She continues:
Attorney Carter kept stating “It is bigger and higher than the US
Attorney, and you can’t, it is not allowed.” He stated the same when
Petitioner requested the he ask for the Safety Valve consideration and
again when she ask for the Minor Role. “This is higher than the US
Attorney and I can't ask for any of that.”
(Doc. 3 at 4). Ms. Gunn attached a declaration to her memorandum in which she avers
that she
wanted [sentencing counsel] to negotiate the Plea Agreement, and object
to several things, including the fact that I am a FOID card carrier for
fifteen years, the gun was under my bed, not as they said in the
indictment. It was there for my protection. My house had been broken
into for the first time ever and they stole my jewelry, collectables, and
some money. That[sic] is why I had it under my bed. Peter Morris, who
I had known for some 25 years, also the informant in this case, was who
had given me the gun. He is the only one I ever sold the drugs to so why
would I ever need his weapon against him? Mr. Carter’s response was
always that was that “he could not” because, “It is over the
Government’s head’. He stated that “He was not allowed,” to present it.
***
The only thing consistent was his persistence that I accept the eight year
plea. He refused to negotiate my plea when I asked or explain any of the
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agreement so that I could understand it. When I asked about taking my
case to trial, he said that “They would not allow that.” Now I know it
was all bad advice in an effort to keep from doing the job or maybe to
make the quick easy money.
(Doc. 3 at 8-9 (emphasis added)) .
Ordinarily, a 2255 movant’s allegation that her counsel failed to explain the
plea agreement to her and asserted to her that she could not take her case to trial
would be sufficient to at least secure an evidentiary hearing. See Koons v. United
States, 639 F.3d 348, 354-55 (7th Cir. 2011). However, here the plea colloquy makes
clear that Ms. Gunn testified under perjury that 1) her counsel did in fact discuss the
plea agreement with her and that she understood it; and 2) her counsel advised her
she had a right to a trial by jury. (Doc. 5-1 at 5). For example, at the change of plea
hearing, the following discussion occurred between Ms. Gunn and the Court:
Court: It appears that you’re charged in Count I of the indictment with
possession of a controlled substance, namely, cocaine base or crack
cocaine with the intent to distribute. And you’re charged in Count II
with possession of a firearm in furtherance of a drug-trafficking crime.
That’s your understanding of the two counts against you, ma’am?
Gunn. Yes, sir.
Q. And you discussed these charges with your attorney?
A. Yes, sir.
Q. And you understand them?
A. Yes, sir.
Q. And in connection with -- you understand that you have a right to a
trial by jury in connection with these charges?
A. Yes, sir.
Q. And you have decided to plead guilty; is that correct?
A. Yes, sir.
***
Q. I have what purports to be your plea agreement, Miss Gunn, and on
the last page of that agreement, page 15, under today’s date it purports
to be your signature. Did you sign this plea agreement today, ma’am?
A. Yes, sir.
Q. And before you signed it, did you read through the agreement?
A. Yes, sir.
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Q. And did you discuss the agreement with your attorney to make sure
you understood it?
A. Yes, sir.
Q. And did you understand the agreement before you signed it?
A. Yes, sir.
***
Q. You entered into this plea agreement voluntarily, of your own free
will?
A. Yes, sir.
Q. Before I accept your plea agreement, Miss Gunn, I wish to satisfy
myself that you fully understand the charges to which you are pleading
guilty and the consequences of your guilty plea. So, in that connection,
I’m going to be asking you some questions. Okay?
***
Q. All right. Now I will now discuss with you the consequences of your
plea of guilty. I notified you of what the maximum statute required in
terms of sentencing, but pursuant to your plea agreement, paragraph
16 that was entered into, pursuant to Rule 11(c)(1)(C), you have agreed
with the government that the Court will sentence you to 36 months or 3
years on Count I?
A. Yes, sir.
Q. And to a consecutive sentence of 60 months or 5 years on Count II for
a total term of imprisonment of 96 months. Is that the agreement you’ve
reached?
A. Yes, sir.
Q. If the Court accepts your plea agreement, Miss Gunn, I’m bound to
sentence you consistent with the plea agreement that calls for a 36month sentence on Count I and a 5-year consecutive sentence on Count
II. Do you understand that?
A. Yes, sir.
Q. Okay. And that’s what you’ve agreed to?
A. Yes, sir.
***
Q. Now, in discussions with your attorney, did he advise you you had a
right to a trial by jury on these charges in the indictment against you,
Miss Gunn?
A. Yes, sir.
Q. And you know what a jury trial is, Miss Gunn?
A. Yes.
***
Q. At a jury trial, you would have the right to be represented by an
attorney of your choosing, and if you could not afford to hire your own
attorney, the Court would appoint one to represent you free of charge.
Do you understand that?
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A. Yes, sir.
Q. Most importantly, at a trial you are presumed innocent of these
charges to which you’re pleading guilty. This presumption of innocence
is your constitutional right, and it means that at trial you don’t have to
testify or produce any evidence in your behalf because your innocence is
presumed. You don’t have to prove it. And it's the government’s burden
to prove your guilt, not yours to prove your innocence. Do you
understand that?
A. Yes, sir.
Q. All witnesses the government brings to court to testify against you to
prove its case against you, you would have the right to confront and
cross-examine those witnesses in your defense. Do you understand that?
A. Yes, sir.
Q. If at trial you relied on the presumption of innocence, you did not
present any evidence in your defense, the jury would be told by the Court
that you don’t have to testify; you don’t have to present any evidence
because you don’t have to prove anything because it’s the government’s
burden to prove your guilt, not yours to prove your innocence. Do you
understand that?
A. Yes, sir.
Q. On the other hand, if you chose to, you could testify at your trial. You
could present evidence in your defense at your trial. You could have
witnesses subpoenaed or otherwise compelled to come to court to testify
in your defense. And, of course, you and they would be subject to crossexamination by government counsel. Do you understand that?
A. Yes, sir.
Q. But by pleading guilty here today, assuming I accept your plea of
guilty, there won’t be any trial, and all the rights you have in connection
with a trial are being waived -- such rights as the presumption of
innocence, the requirement of the government to prove your guilt beyond
a reasonable doubt, your right to confront witnesses against you. All
those rights are being waived by you. Do you understand that?
A. Yes, sir.
Q. And if I accept your plea of guilty, you will be convicted of Counts I
and II just as though they were the result of a jury verdict finding you
guilty on Counts I and II. Do you understand that?
A. Yes, sir.
Q. Any questions?
A. No, sir.
(Doc. 5-1 et passim). Statements made by a defendant under oath at a change-of-plea
hearing are presumed to be truthful. Bridgeman v. United States, 229 F.3d 589, 592
(7th Cir. 2000). Ms. Gunn has certainly failed to provide any argument or evidence
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in her submissions to the Court that persuade the Court her statements made at the
change-of-plea hearing were not truthful or correct.
Ineffective assistance of counsel claims require a petitioner to show her
counsel’s representation fell below an objective standard of reasonableness and that
she was actually prejudiced by her counsel’s errors. Strickland v. Washington, 466
U.S. 668, 687-88 (1984). A court’s explanation to a defendant can suffice to remove
the taint of an attorney’s objective failure such that the defendant will be unable to
show prejudice due to the attorney’s failure in subsequent 2255 proceedings. See, e.g.,
Wyatt v. United States, 574 F.3d 455, 458–59 (7th Cir. 2009). In this case, the plea
colloquy makes clear that even if Ms. Gunn’s counsel did not explain those things to
her prior to the change-of-plea hearing (despite the fact that she testified that he did),
this Court certainly explained the right to trial by jury to her, and she affirmed at the
hearing that she understood the ramifications of pleading guilty instead of going to
trial.
For these reasons, the Court finds Ms. Gunn’s claim of ineffective assistance of
counsel for failure to explain the plea agreement and failure to advise her that she
could go to trial is patently insufficient in light of the statements made by Ms. Gunn
at the change of plea hearing and this Court’s explanations to her of her rights. The
claim is denied.
II.
Ineffective Assistance of Counsel For Failure to Seek a Dean
Departure.
Ms. Gunn also explains in her memorandum that she thinks Dean v. United
States, 137 S. Ct. 1170, is applicable to her case. In her view, Dean is a retroactive
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case that compels courts to impose absolute minimum terms of incarceration for
underlying predicate offenses when such defendants are also simultaneously
convicted for possessing firearms in furtherance of those underlying predicate
offenses. She is incorrect. In Dean, the Supreme Court merely held that a district
court can, not must, consider the minimum sentence under 18 U.S.C. § 924(c) when
choosing a sentence for the predicate offense and such a court possesses the latitude
to impose a sentence as short as a day on the predicate count if the court feels the
circumstances warrant such a sentence. 137 S. Ct. at 1177. Dean does not compel
courts to do anything, and thus this Court was under no obligation to sentence Ms.
Gunn to five years and one day, as she claims in her memorandum of law in support
of her 2255 motion.
Moreover, her counsel was not ineffective in failing to present Dean to the
Court; the plea agreement Ms. Gunn voluntarily entered took away the Court’s
discretion to fix a sentence once the Court accepted the plea agreement. In other
words, the plea agreement obviated counsel from having to argue an appropriate
sentence to the Court and thus, there was no need for counsel to present Dean to the
Court. Therefore, Ms. Gunn’s counsel was not ineffective for failing to request the
Court to sentence her in accordance with Dean.
It is worth mentioning that Ms. Gunn faced a statutory mandatory minimum
sentence of ten years in prison if convicted at trial. Her indictment charged her with
one count of possession of cocaine base (crack) with intent to distribute in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), which carries a statutory minimum of five
years imprisonment, and one count of possession of a firearm in furtherance of a drug
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trafficking crime in violation of 18 U.S.C. § 924(c), which carries another minimum
of five years that must run consecutive to the underlying drug trafficking offense.
Pursuant to the plea agreement, which represents the culmination of the negotiations
between the Government and the defendant via his lawyer usually, but himself if he
acts on his own behalf, the parties agreed the defendant’s sentence will be thirty-six
months custody on Count 1 of the Indictment and a consecutive sixty month custody
sentence on Count 2. A mandatory minimum of ten years, which is 120 months, is
surely worse than the ninety-six months to which Ms. Gunn was sentenced.
Moreover, her guidelines calculation yielded a range of between forty-six and fiftyseven months for her drug trafficking offense plus the sixty months for the firearm
offense, yielding a total of a minimum of 106 months. Again, 106 is greater than 96.
These numbers and the substantial variance from what Ms. Gunn could have received
as a sentence from what she actually received had she gone to and lost at trial, make
it hard for the Court to discern where any supposed miscarriage of justice lies. At the
end of the day, Ms. Gunn received a good deal through her counsel’s negotiation with
the Government.
III.
Ineffective Assistance Of Counsel For Failure To Obtain The Safety
Valve Or Two-Point Reduction For Minor Role
Ms. Gunn’s final contention is that her counsel was ineffective for failing to
obtain for her a two point minor role reduction in her guidelines range calculation or
the safety-valve reduction. Title 18, Section 3553 of the United States Code allows for
a so-called safety valve mechanism that allows a sentencing court to sentence a
defendant below the statutory mandatory minimum when certain factors are met.
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See, e.g., United States v. Acevedo-Fitz, 739 F.3d 967, 970 (7th Cir. 2014). When a
defendant meets all the criteria of 18 U.S.C. 3553(f), she also satisfies section 5C1.2
of the sentencing guidelines, and thus becomes eligible for a two point reduction in
base offense level of the guidelines calculation. U.S.S.G. 2D1.1(b)(17) (“If the
defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a) of §
5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain
Cases), decrease by 2 levels.”).
All five of the statutory elements of 18 U.S.C. 3553(f), and similarly, all five of
subdivisions (1) through (5) of subsection (a) of § 5C1.2 of the guidelines, have to be
satisfied before one can receive a safety valve or two-point level reduction. Ms. Gunn
would not qualify for either the safety valve or two-point level reduction because she
was charged with possession of a firearm in furtherance of a drug trafficking offense.
See 18 U.S.C. § 3553(f)(2); see also U.S.S.G. 5C1.2(a)(2). Thus, if she went to trial,
lost, and were sentenced, Ms. Gunn would not be eligible for a safety-valve or twopoint level reduction. For these reasons, her counsel’s performance cannot possibly
be deemed objectively deficient for failing to ask for a safety-valve or two-point level
reduction.
CONCLUSION
For the reasons stated above, Tequila J. Gunn’s Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody (Doc. 1) is
DENIED. Case terminated.
SO ORDERED.
Entered this 21st day of June, 2018.
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s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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