United States of America v. Dean-Anthony

Filing 7

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 9/12/2012.(mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
DEAN ANTHONY GILL,
Defendant.

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Case Nos.

12 C 5832
10 CR 780

MEMORANDUM ORDER
Dean Anthony Gill (“Gill”), who was represented by counsel
when he entered a blind plea of guilty pursuant to a written plea
declaration, has filed a pro se 28 U.S.C. §2255 (“Section 2255”)
motion to vacate, set aside or correct the 66-month custodial
sentence that this Court imposed on him on July 27, 2011.
Although the advisory Sentencing Guideline range applicable to
Gill’s crime of illegal reentry into the United States ran
between 77 and 96 months, this Court found the thoughtful
sentencing memorandum and argument made on Gill’s behalf by
attorney Mary Judge, a member of this District’s outstanding
Federal Defender Panel, to be highly persuasive and concluded by
imposing a sentence below that range.
Yet Gill now challenges his lawyer’s representation as
constitutionally deficient because she assertedly did not argue
adequately that he be given the benefit of “fast track”
treatment -- so much so that his constitutional rights have

assertedly been violated by that claimed deficiency.

With all

due respect, Gill’s Section 2255 motion calls to mind the lament
by Shakespeare’s King Lear:
How sharper than a serpent’s tooth it is
To have a thankless child!1
In point of fact, the sentencing memorandum submitted by
attorney Judge made the best possible case for a “fast track”
deduction for Gill, whose substantial prior criminal record (1)
had begun with a ten-year custodial sentence following a guilty
plea at age 19 to a charge of possession with intent to
distribute cocaine and (2) was then followed by a whole series of
other convictions -- a record that added up to an aggregate of 13
criminal history points for Guideline purposes, augmented by an
additional two points because Gill was on probation when he
committed the current offense.

That total of 15 placed Gill well

into the highest criminal history category of VI.
Attorney Judge’s sentencing memorandum was written (1) after
our Court of Appeals had held that sentencing courts may consider
unwarranted sentencing disparities between this and other
districts based on the then unavailability of “fast track”
treatment here (United States v. Reyes-Hernandez, 624 F.3d 405,
417-22 (7th Cir. 2010)) but (2) before this District Court’s own
implementation of a “fast track” program as described in United

1

With apologies to the Bard, substitute “thankless client”
for “thankless child.”
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States v. Garcia-Ugarte, 688 F.3d 314, 317 n.1 (7th Cir. 2012):
Effective March 1, 2012, in response to an earlier
memorandum issued by the Department of Justice dated
January 30, 2012, the Northern District of Illinois
implemented a fast-track program for illegal reentry
cases. However, Garcia-Ugarte was prosecuted,
convicted, sentenced, and had appealed and delivered
oral arguments by November 1, 2011. For these reasons,
he is not entitled to consideration for fast-track
sentencing under the new policy. Given Garcia-Ugarte’s
extensive criminal history, it is highly unlikely he
would prevail even if considered for the new policy on
the merits.
Despite the absence of a fast-track program here at the time of
Gill’s sentencing, and despite the presence of two adverse
factors referred to in the Garcia-Ugarte footnote (both of which
also applied directly to Gill), attorney Judge argued vigorously
that Gill should be sentenced as though fast-track treatment did
apply here, supplementing that argument with a highly informative
stipulated set of sentencing ranges in all the districts that did
have such programs at that time.
Gill now contends that his appointed counsel was ineffective
because of her failure to present to this Court an argument for a
reduced sentence in return for what he said would have been a
waiver of his right to contest deportation together with an
agreement to stipulate to an order of deportation.

But that

contention is wholly empty of merit, both because of the absence
of a fast-track program here at the time (see, e.g., United
States v. Gomez-Herrera, 523 F.3d 554, 557 n.1 (5th Cir. 2008))
and because Gill lacked even a “colorable, non-frivolous, defense
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to deportation” (see United States v. Caneva, No. 04-80562, 2006
WL 1155259, at *2 (E.D. Mich. May 1), collecting appellate
decisions from the First, Second, Third, Eighth and Eleventh
Circuits).

In the latter respect, because Gill’s original

conviction and 10 year sentence involved felony drug trafficking,
an aggravated felony under 8 U.S.C. §1101(a)(43)(B), he was
“conclusively presumed to be deportable from the United States”
(8 U.S.C. §1228(c)).
And there is more.

Gill has failed to show that under his

circumstances any fast-track variance would have been available
to him even in a district that had a fast track program at the
time of his sentencing.

In that respect Gill has failed to carry

his burden of establishing program eligibility (United States v.
Gallardo, 497 F.3d 727, 740 (7th Cir. 2007)).
In sum, this Court has considered both Gill’s Section 2255
motion and the government’s answer that this Court has ordered.
That answer is incapable of contravention by a reply, for its
conclusive nature calls for the motion’s denial without a hearing
(see, e.g., Hutchings v. United States, 618 F.3d 693, 699 (7th
Cir. 2010)).

Hence the motion is denied.

Finally, Rule 11(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts requires this
Court to issue or deny a certificate of appealability (“COA”)
upon its entry of this final order adverse to Gill.

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Because Gill

has not made -- and cannot make -- a substantial showing of the
denial of a constitutional right (see Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003)), this Court holds that no COA should
issue.

Gill is advised, of course, that he may retender that

question to the Court of Appeals.

_____________________________________
Milton I. Shadur
Senior United States District Judge
Date: September 12, 2012

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