United States of America v. Williams
Filing
32
MEMORANDUM Opinion and Order. Signed by the Honorable James B. Zagel on 10/2/2013. (ep, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
v.
No. 12 C 2394
Judge James B. Zagel
COREY WILLIAMS
MEMORANDUM OPINION AND ORDER
Corey Williams seeks relief under 28 U.S.C. § 2255 on a variety of grounds. He pled
guilty after entering a plea agreement. Williams was part of a drug dealing conspiracy; he was
charged on 21 August 2008 with brokering cocaine deals resulting in sales over a half-kilogram
of crack. He was charged, too, with selling three firearms. He was charged on 5 November
2008 in a second indictment for conspiracy to deal in firearms and to do so without a license.
There were three counts of possessing firearms despite his status as a felon. The indictments
were superseded by a single information which alleged the narcotics conspiracy from the first
indictment in one count and the dealing in firearms without a license charge in the second
indictment.
Two days after the information was filed Williams, pursuant to a written plea agreement,
pled guilty to those charges. The plea was accepted after a proper course of inquiry, responses
and explanations of the terms of the agreement. At sentencing the Guideline was not challenged
by defense counsel. My own review of the rationale of the proposed Guideline was correct. I
found the Guideline to be correct. Williams’ counsel argued that the career offender guideline
overstated the gravity of petitioner’s criminal history (due to the nature of the prior convictions
and the youth of petitioner at the earlier convictions). The other argument was that I should
exercise my discretion to use the powder cocaine guidelines rather than the crack cocaine
guidelines. I did find that the prior criminal history did overstate the gravity of Williams’ past
bad conduct. Having done so I departed or varied from the correct Guideline of 262-327 months
by 82 months and imposed a period of incarceration of 180 months (15 years).
Williams appealed my denial of his motion to reduce sentence. The motion was filed
under 18 U.S.C. § 3582(c)(2). The Court of Appeals noted that amendments to the crack cocaine
guidelines did not and do not affect the career offender guideline under which Williams was
sentenced. United States v. Williams, No. 12-2608 (7th Cir. 2013)(Unreported Order of March 20,
2013).
Eleven months before that ruling on appeal Williams filed this petition for relief. The
petition claiming ineffective assistance of counsel is based on several assertions of failure to
object to various actions.1
There was nothing ineffective about defense counsel’s failure to raise speedy trial
objections. Williams ignores the fact that the unlicensed dealing charge did not come into the
case until almost three months after the first indictment and he was arrested on that count on 20
November 2008, 15 days after indictment. I excluded time for allowable reasons under the
Speedy Trial Act, which rulings petitioner does not dispute here. The charges in the superseding
information were charged in the two earlier indictments. All that happened with the information
was that some charges were not included. Williams cannot bring a claim for denial of speedy
trial for offenses of which he was not convicted. The convictions here were the product of plea
1
There is a claim by Williams that he was not indicted for unlicensed dealing in firearms. It is true that this charge
was not in the first indictment but Williams seems to have forgotten that he was indicted twice and the second
indictment did contain the unlicensed dealing offense. So, counsel did not wrongly induce Williams to plead to an
unindicted charge. I separate this claim for relief because it is not based on failure of defense to object.
2
negotiations and exclusion of time allowed Williams’ counsel to gain a plea agreement that
benefitted the petitioner.
Nor was there anything ineffective in the decision of counsel not to object to the career
offender guideline calculation. Williams says his counsel got it wrong by not objecting to
separate counting of two prior state sentences. Separate counting, he argues, cannot be applied
when the two cases were consolidated for sentencing hearing. His problem is that the Sentencing
Commission has established that prior sentences are always counted separately if the sentences
were imposed for offenses separated by an intervening arrest. (U.S.S.G. § 4A1.2). No dispute
exists that there was, in fact, an intervening arrest between the two state offenses. Petitioner is
also wrong to argue that a felony counted for career offender status must be assigned more than
one point. Williams has misread a precedent from another Circuit to argue that one point
convictions do not count for career status. The fact that the Eighth Circuit referred to the rule
that predicate career offender prior conviction must have “points” is a generic reference to points
in general and does not specify any particular number of points required for a predicate status.
What this leaves is the place of the Fair Sentencing Act (“FSA”) in this case. Unlike
some changes in the Guideline rules which tend to apply retroactively, the Fair Sentencing Act
was not retroactive in this Circuit, at the time of sentencing. Indeed the FSA was not enacted at
the time of sentence but became law eleven days after sentence.2 The FSA was not applied
retroactively in this Circuit. See United States v. Fisher, 635 F.3d 336 (7th Cir. 2011). About
eleven months later the Supreme Court found that Fisher was wrongly decided.
2
The FSA raised the amount of crack cocaine that would trigger the mandatory minimum and maximum for a crack
offense. Williams says he was charged with less than that trigger amount since his indictment charged only 50
grams but the trigger is an amount proved not merely the amount charged. Williams admitted to accountability for
559 grams of crack which exceeds the higher amount (280 grams) contained in the FSA.
3
Williams’ pled guilty on 22 January 2010 and was sentenced on 23 July. He appealed
and eventually his appellate lawyer advised him to withdraw his notice of appeal. If Williams
failed to do so, counsel would file an Anders brief.
Williams complains that his trial and appellate lawyers should have tried to put his case
on hold until the Supreme Court might rule that the FSA is retroactive. Trial counsel had a very
short time to seek sentence reduction and the FSA did not pass while the window was open to
file for a sentence reduction. Based on what was known of the law at the time, I would not have
permitted Williams to withdraw his plea of guilty since his issues are not with the plea but rather
the sentence imposed. The appeal counsel could have tried to persuade the Court of Appeals to
put the appeal on hold until the Supreme Court decided whether the FSA was retroactive.
There are a handful of cases where courts have put a decision on hold until a specific
decision is reached in a known specific case. But this is uncommon. I have not found a case in
which a lawyer has been found ineffective for failure to pursue a strategy based on his knowing
of the possibility that a pending Supreme Court decision might change the law. The rule runs the
other way. In a capital case, the Fourth Circuit noted that “the case law is clear that an attorney’s
assistance is not rendered ineffective because he failed to anticipate a new rule of law.”
H.Kornahrens III v. Evatt, 66 F.3d 1350 (4th Cir. 1995) (citing cases).
This issue has a certain inherent interest but, in the end, the FSA is not relevant to this
case. The FSA did not change the career offender guideline and that is the guideline under
which he would be sentenced.
I note finally the claim that trial counsel was ineffective is, in this case, very hard to
understand in light of the fine job counsel did. Defense counsel’s analysis of the criminal
history addressed the significant issue that remained in the case after the entry of the plea of
4
guilty. Defense counsel’s well focused advocacy played a significant role in the reduced
sentence I imposed.
The motion to vacate, set aside or correct sentence is denied.
ENTER:
James B. Zagel
United States District Judge
DATE: October 2, 2013
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?