United States of America v. Smith
Filing
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MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 6/2/2014. For the reasons stated in this memorandum opinion and order, the Court denies Smith's section 2255 motion and directs the Clerk to enter judgment in favor of the government and against Smith. The Court issues a certificate of appealability regarding both of Smith's claims, as reasonable jurists could differ regarding their merit.(pjg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
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Plaintiff,
vs.
RONALD S. SMITH,
Defendant.
No. 13 C 7709
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
On August 26, 2010, a jury found Ronald Smith guilty of conspiring to possess
five kilograms or more of cocaine with intent to distribute and with attempting to possess
five kilograms or more of cocaine with intent to distribute. On October 27, 2010,
another judge of this court sentenced Smith to fourteen years in prison (168 months).
Smith has moved pursuant to 28 U.S.C. § 2255 to vacate his conviction and
sentence. He alleges that his lawyers rendered ineffective assistance of counsel in
failing to inform him of a proposed plea agreement and in failing to offer at sentencing
appropriate evidence and argument about his military service and PTSD diagnosis.
For the reasons stated below, the Court denies Smith's motion.
Background
On December 17, 2008, the government filed a criminal complaint against Smith
charging him with narcotics offenses. Smith was arrested the next day. On March 5,
2009, the government indicted him on charges of conspiring to distribute and possess
with intent to distribute five kilograms or more of cocaine between 2003 and December
6, 2008 and attempting to possess with intent to distribute five kilograms or more of
cocaine on December 5, 2008. On March 25, 2009, Smith was released on bond.
At first, Smith, who resided in Columbus, Ohio, retained Kenneth Boggs (also
from Columbus) as his trial counsel. But Boggs abandoned Smith's case around May
2009 and was "never seen or heard from by either Mr. Smith or the Court again." 2255
Mot. at 2. Boggs was eventually suspended from practice by the Ohio Supreme Court.
Smith then retained Cornelius Lewis, who before that time apparently had been
involved as second chair to Boggs, though that is less than crystal clear. Lewis
appeared at some but not all, or even most, of the pretrial court appearances. Smith
alleges in his section 2255 motion that "several attorney's [sic] substituted in for Mr.
Lewis on behalf of Mr. Smith at various status conferences, none with Mr. Smith's
consent and all unfamiliar with him, his case, or the procedural posture of his case." Id.
at 2-3. The record reflects, for example, that attorney Nicholas Kournetas, who had
never met or spoken with Smith, nevertheless represented him at a status hearing on
January 6, 2010. It does not appear that Smith himself attended any of the status
conferences; presumably his appearance was waived by the judge who was presiding
over the case.
On February 1, 2010, the government sent Lewis a draft plea agreement. The
draft plea agreement stipulated that "defendant agrees to enter a voluntary plea of guilty
to Count One of the indictment, which charges defendant with conspiring to distribute
and possess with intent to distribute a controlled substance, namely, 5 kilograms or
more of mixtures and substances containing a detectable amount of cocaine . . . ."
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Govt.'s Resp., Ex. E (draft plea agreement) at 2. The draft agreement contemplated
that Smith would admit that he had bought at least 1,500 kilograms of cocaine from a
co-conspirator to distribute to others.
The draft plea agreement reflected that that the charge to which Smith would be
pleading guilty carried a mandatory minimum sentence of 10 years. It also
contemplated that the parties would acknowledge that the Sentencing Guidelines base
offense level was 38, because the amount of controlled substances involved in the
offense exceeded 150 kilograms. Under the proposal, the parties would agree to
disagree on whether Smith should get a "role in the offense" enhancement, with the
government taking the position that a two-level enhancement was warranted because
Smith was a manager or supervisor, and Smith free to present evidence and argument
to the contrary. The draft contemplated that the government reserved the right to
challenge a reduction for acceptance of responsibility, with Smith free to argue that the
reduction should apply. The government agreed, however, that if the court gave Smith
credit for acceptance of responsibility, the government would seek a further one-level
reduction based on the timeliness of Smith's guilty plea. The draft plea agreement
stipulated that Smith had zero criminal history points and that he was in criminal history
category I. The draft plea agreement reached the following conclusions regarding
Smith's advisory Guidelines range:
if the government's calculations are correct, the anticipated offense level is
37 (if the Court finds that defendant has accepted responsibility), which,
when combined with the anticipated criminal history category of I, results
in an anticipated advisory Sentencing Guidelines range of 210 to 262
months' imprisonment . . . . If defendant's calculations are correct, the
anticipated offense level is 35, which, when combined with the anticipated
criminal history category of I, results in an anticipated advisory Sentencing
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Guidelines range of 168 to 210 months' imprisonment . . . .
Id. at 8.
On February 1, 2010, Lewis sent the government an e-mail acknowledging that
he had received the draft plea agreement and stating his intention to review the
agreement with Smith. During a March 3, 2010 status hearing (at which Smith was not
present), Lewis told the judge that both he and Smith had reviewed the draft plea
agreement and that Smith might decide whether to accept the agreement by April 14,
2010. On April 12, 2010, Lewis sent the government another e-mail, stating that "I have
spoken with my client and it looks as if we need to set this case for trial as he is
unwilling to plead to anything carrying the mandatory 10 year minimum." Govt.'s Resp.,
Ex. H.
On June 21, 2010, the judge set Smith's case for a jury trial on August 23, 2010.
On July 1, 2010, Lewis informed the district court that the parties had been unable to
reach a plea agreement. Smith did not attend this hearing and maintains that he was
unaware of it.
Smith denies that Lewis ever told him of the existence of the draft plea
agreement. Smith also denies that he rejected the government's proposal or that he
refused to consider accepting the statutory minimum sentence of ten years'
imprisonment.
At trial, the government introduced into evidence recorded phone conversations
between Smith and his co-conspirator, testimony of cooperating witnesses who had
delivered cocaine to Smith and his co-conspirator, and testimony of witnesses who were
members of law enforcement. On August 26, 2010, the jury found Smith guilty of both
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the conspiracy and attempt charges.
In the presentence report (PSR), the probation officer calculated Smith's adjusted
offense level as 43 and his criminal history category as I, resulting in an advisory range
under the Sentencing Guidelines of life imprisonment. The probation officer's
calculations depended in part on the conclusion that Smith "possessed and/or
distributed at least 150 kilograms or more of cocaine." PSR at 8. The probation officer
recommended a three-level role in the offense enhancement on the ground that Smith
was a manager or supervisor of the offense. The PSR made reference to Smith's
military service, including his commendations, assignments, and training. Id. at 12-13.
It also noted that Smith had reported suffering from depression and stress, inability to
sleep, and other symptoms that he attributed to "being in combat zones and witnessing
killings." Id. at 13. The PSR also contained details regarding psychological treatment
he had received in 2009 at a Veterans Administration care center after he reported
inability to sleep and having frequent nightmares that involved his service in combat. Id.
The PSR also reported that a VA psychologist advised that Smith was assessed to be
at risk for PTSD and was referred for outpatient mental health treatment. Id..
At sentencing, the district judge heard extensive argument regarding the quantity
of drugs for which Smith should be found responsible under the Sentencing Guidelines.
The prosecutor argued for a quantity of 200 kilograms of cocaine. Govt.'s Resp., Ex. J
at 11. She contended that Smith had been involved in numerous trips between Ohio
and Chicago, going back to 2006, during which he and others had transported multikilogram quantities of cocaine. Id. at 12. The prosecutor argued that the evidence
supporting this was extensive, credible, and corroborated, and she discussed the
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evidence in detail. Id. at 12-15. In response, Lewis argued that the government's
quantity contention was speculative and unsupported. Id. at 15-18. In rebuttal, the
prosecutor sought to reinforce her contention that the government's proposed drug
quantity was corroborated in the record. Id. at 18-20.
The judge rejected the government's argument and determined that the base
offense level was 34 after finding that the quantity of cocaine involved in the offense
was 20 kilograms. Id. at 23-24. She flatly rejected the government's reliance on
testimony by cooperating witnesses, finding that they had given contradictory
statements and that their testimony regarding drug quantities was "infla[t]ed or
speculative." Id. at 21. The judge concluded: "in terms of establishing a reliable basis
for the amount of cocaine previously distributed or sold to Mr. smith and/or Mr. Baker,
it's not grounded on reliable evidence." Id. Rather, the judge concluded, the
government had shown Smith to be responsible only for 20 kilograms, id. at 22, which
appears to have been the amount established regarding the sting transaction that was
the focus of the evidence at Smith's trial.
The judge rejected the government's argument for a firearm enhancement and
ultimately concluded that the adjusted offense level was 37 because "there is a basis to
apply the three-level enhancement for being a manger or supervisor, with the
understanding that Mr. Smith supervised." Id. at 40. She found that "Mr. Smith is in a
criminal history category I, not having prior criminal convictions . . . ." Id. at 41. The
probation officer verified that the resulting advisory sentencing guidelines range was
210-262 months (roughly 18-22 years). Id.
Among the mitigating factors that Lewis presented at sentencing was the fact that
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Smith "has paid a tremendous debt to society as a military vet." Id. at 43-44. Lewis did
not, however, make reference to any mental health issues.
In sentencing Smith, the judge stated that "[y]ou served honorably in the military
as a military police officer, and I relied – I see you won awards, a number of awards,
including a combat award. You had special ops or special operations assignments . . .
and I take that in consideration." Id. at 53-54. The judge concluded that a sentence
significantly below the advisory Sentencing Guidelines range was warranted but that a
sentence greater than the statutory minimum of ten years was appropriate. She
imposed a sentence of 14 years (168 months) in prison. The judge noted, "I do find that
18 years is greater than necessary for the offense given your lack of a criminal history,
the positive aspects of your life, and the unlikelihood of recidivism as to you." Id. at 54.
Although the judge did not mention that Smith had been assessed to be at risk for
PTSD, it is apparent that she was aware of his mental health issues, because she made
a recommendation to the Bureau of Prisons that Smith receive mental health
counseling. Id. at 56.
Smith retained new counsel and appealed his conviction and sentence to the
Seventh Circuit. He argued, among other things, that the district court erred in imposing
the role in the offense enhancement. On March 22, 2012, the Seventh Circuit affirmed
Smith's conviction and sentence. United States v. Smith, 674 F.3d 722 (7th Cir. 2012).
On October 29, 2012, the U.S. Supreme Court denied Smith's petition for writ of
certiorari. Smith v. United States, 133 S. Ct. 546 (2012).
On October 28, 2013, Smith filed the present motion to vacate his sentence. As
stated earlier, Smith contends that his trial counsel failed to inform him that the
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government had offered a plea deal and failed to offer appropriate evidence and
argument at sentencing regarding his military service and PTSD diagnosis. Smith
maintains that he would have agreed to plead guilty had his counsel advised him of the
proposed deal; this would have yielded a more favorable sentence than the one impose
after he was convicted at trial; and the district court would have imposed a lesser
sentence had his lawyers appropriately described his military service and mental health
problems to the court.
Discussion
A defendant is eligible for relief pursuant to 28 U.S.C. § 2255 only when there
has been "an error of constitutional or jurisdictional magnitude or where a fundamental
defect has occurred which results in a complete miscarriage of justice." Blake v. United
States, 723 F.3d 870, 878-79 (7th Cir. 2013). Smith argues that his lawyers rendered
ineffective assistance of counsel at the pre-trial and sentencing stages of his case.
Ineffective assistance of counsel is an error of constitutional magnitude, as "all
defendants facing felony charges are entitled to the effective assistance of competent
counsel" under the Sixth Amendment. Hill v. Lockhart, 474 U.S. 52, 57 (1985) (internal
quotation marks omitted).
In assessing a claim of ineffective assistance of counsel, the Court applies the
two-part test described in Strickland v. Washington, 466 U.S. 668 (1984). Under the
Strickland test, a defendant establishes ineffective assistance of counsel by showing
that: 1) the performance of his lawyers "fell below an objective standard of
reasonableness," and 2) "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id. at
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688, 694. "A reasonable probability is a probability sufficient to undermine confidence in
the outcome." Id. at 694.
Smith claims that his lawyer rendered ineffective assistance of counsel is by
failing to inform him that the government had offered him a plea agreement. In Lafler v.
Cooper, 132 S. Ct. 1376, 1384 (2012), the Court affirmed that "[d]efendants have a
Sixth Amendment right to counsel, a right that extends to the plea-bargaining process."
In Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012), a companion case to Lafler, the Court
held that "as a general rule, defense counsel has the duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions that may be favorable to
the accused . . . ." "When defense counsel allow[s] [a plea] offer to expire without
advising the defendant or allowing him to consider it, defense counsel [does] not render
the effective assistance the Constitution requires." Id. Thus if Smith can demonstrate
that his lawyers failed to notify him of the draft plea agreement, he will satisfy the
deficient-performance aspect of the Strickland test.
The second part of the Strickland test requires Smith to show that his lawyer's
deficient performance prejudiced him. In Frye, the Court applied the prejudice portion of
the Strickland test to an ineffective assistance claim involving counsel's failure to advise
the defendant of a proposed plea agreement. The Court stated that to show prejudice
in this situation, the defendant must demonstrate a reasonable probability that: 1) he
would have accepted the plea offer had he been afforded effective assistance of
counsel; 2) the plea would have been entered without the prosecution withdrawing the
offer or the trial court refusing to accept the deal; and 3) the end result would have been
more favorable, by reason of a plea to a lesser charge or a less severe sentence. Frye,
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132 S. Ct. at 1409.
A.
Plea agreement
1.
Deficient performance
Smith offers a signed declaration in support of his claim regarding the draft plea
agreement. He states that "[d]uring the entire period of representation, I was never
notified by anyone about a plea offer from the government related to my charges . . . .
The first time that I realized the government offered me a plea agreement was when I
read about it in the transcripts from the status conferences." 2255 Mot., Ex. 4 (Smith
Decl.).
In response, the government offers an affidavit from Lewis in which he states that
"I personally explained to Ronald Smith on more than one occasion . . . that the
Government was offering him a plea but that he would be facing the mandatory
minimum and that the Government was seeking to treat him as an organizer/leader."
Govt.'s Resp., Ex. I (Lewis Aff.) ¶ 13. Lewis further states that Smith said he would
"possibly" consider a plea but only if the government gave up on the role in the offense
enhancement and made him eligible for the safety valve, which would render the
mandatory minimum sentence inapplicable. Id. ¶ 14. When he told Smith that the
government was unwilling to do this, Lewis says, Smith "stated that he would not plea
[sic] and that he wished to take his case to trial." Id. ¶ 15. Lewis further states that
later, after he took over as lead counsel when Boggs abandoned the case, he told
Smith that he should consider a guilty plea but that Smith replied, "I am taking my case
to trial because I am not guilty." Id. ¶ 17. Lewis states that he discussed with Smith, "in
detail . . . the feasibility of entering into a plea agreement . . . " Id. ¶ 23. The
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government also points to the transcript of a status hearing on March 3, 2010, during
which Lewis told the judge that he and Smith had each reviewed the draft plea
agreement and that Smith was still considering it. In addition, the government points to
the earlier-referenced April 12, 2010 e-mail in which Lewis advised the prosecutor that "I
have spoken with my client and it looks as if we need to set this case for trial as he is
unwilling to plead to anything carrying the mandatory 10 year minimum." Govt.'s Resp.,
Ex. H.
The government dismisses Smith's statement as self-serving. It may well be—
most testimony by a party is self-serving—but that is of no consequence. There is no
rule barring admission of self-serving testimony, nor is there any sort of iron rule that
self-serving testimony cannot carry the day. This, in the Court's view, is a fairly selfevident proposition, but even if that were not the case, the Seventh Circuit has recently
reinforced it in the somewhat related context of whether a "self-serving" affidavit can
defeat a summary judgment motion in a civil case and require the case to go to trial.
See, e.g., Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013). That aside, the Court is
at a loss to identify any form of evidence, other than his own statement, that Smith could
offer to try to prove a negative, namely that his lawyer did not advise him of the plea
agreement. The Court also notes that Lewis likewise has offered no documentation
confirming that he provided the draft plea agreement to Lewis, and as previously
discussed it appears that Smith was not required to attend the court hearings where the
possibility of a guilty plea came up. In short, there is a factual dispute regarding
whether Lewis met his duty to advise Smith of the draft plea agreement that the
government had sent.
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2.
Prejudice
As stated earlier, to demonstrate the requisite prejudice on his claim regarding
the draft plea agreement, Smith must show a reasonable probability that: 1) he would
have accepted the draft plea agreement had he known about it; 2) the government
would not have taken it off of the table and the court would not have refused to accept it;
and 3) pleading guilty under the agreement would have resulted in a more favorable
judgment or sentence for Smith than he received after losing at trial.
Smith's signed declaration, in which he states that "[h]ad I been offered a plea I
would have probably accepted it because at the time I understood that I was facing a
sentence of 30 years to life imprisonment," 2255 Motion, Ex. 4, is sufficient for present
purposes on the first point. Lewis's affidavit contradicts Smith's statement, but as
indicated earlier, the resulting credibility issue cannot be determined without an
evidentiary hearing.
The government does not contend that it would have taken the draft plea
agreement off of the table or that the district court would have refused to accept it. The
Court sees nothing in the draft plea agreement that might have led the judge handling
Smith's case to reject it. Smith has satisfied this aspect of the prejudice inquiry.
Smith has failed to show, however, that there is a reasonable probability that he
would have gotten a better sentence had he pled guilty pursuant to the draft plea
agreement. As the government notes, the draft plea agreement would have required
Smith to acknowledge responsibility for 1,500 kilograms of cocaine. In other words,
Smith would have had to a drug quantity even greater than the quantity for which the
prosecutor argued unsuccessfully at his sentencing hearing. As discussed earlier, the
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judge squarely and decisively rejected the government's position, finding the evidence
upon which it was based to be unreliable and speculative. Rather, she found Smith
responsible only for 20 kilograms, the amount involved in the sting transaction that had
been proven at trial via (among other things) recorded conversations involving Smith.
The quantity that Smith would have been required to accept in the plea agreement is 75
times greater than what the judge ultimately found. With Smith's agreement to the
larger quantity, there would have been no occasion for the sentencing judge to make a
lower quantity finding.
Smith's agreement to a 1500 kilogram quantity finding likely would have made the
sentencing hearing look far different. Smith would have been before the court as a
major-league drug trafficker, with a far greater degree of culpability and likelihood of
recidivism than appeared to be the case at the sentencing hearing that actually
occurred.
Had Smith accepted the proposed plea agreement, the advisory Guidelines
range, given the 1500 kilogram quantity and the role in the offense enhancement, would
have been 210 to 262 months imprisonment, which is the same range the sentencing
judge ultimately used. As indicated earlier, the judge imposed a sentence significantly
below the low end of this range, namely 168 months. Smith's ineffective assistance
claim requires him to show a reasonable probability of an even lower sentence had he
accepted the proposed plea agreement. There is no basis in the record or otherwise to
believe that the sentencing judge would have imposed a still lower sentence had Smith
admitted to being the big-time drug trafficker that a 1500 kilogram quantity would have
entailed. The Court concludes that Smith has failed to show a reasonable probability of
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a lower sentence under that scenario.
For these reasons, the Court overrules Smith's claim regarding the draft plea
agreement.
B.
Sentencing
Smith also contends that his trial counsel rendered ineffective assistance by
failing to give the sentencing judge sufficient information regarding his military service
and his PTSD diagnosis. The PSR, however, discussed Smith's military service,
including his commendations, assignments, and training, and it provided significant
details regarding his mental health history, including his symptoms, his treatment at a
VA facility, and the fact that he had been assessed to be at risk for PTSD. And as the
government correctly notes, the transcript of the sentencing hearing reflects that Lewis
did, in fact, argue Smith's military service as mitigating evidence and that the judge took
this evidence into account. Lewis told the judge that Smith "has paid a tremendous debt
to society as military vet"; the judge stated that she was taking into account the fact that
Smith "served honorably in the military as a military police officer" and "won awards, a
number of awards, including a combat award." Govt.'s Resp., Ex. J at 43-44, 53-54.
For these reasons, Smith has not shown that Lewis's performance was deficient in
failing to raise the issue of Smith's military service at sentencing
The sentencing transcript shows that Lewis did not offer any arguments about
Smith's mental health history as mitigating evidence. To establish that this omission
constituted ineffective assistance of counsel, however, Smith must show that it
prejudiced him. Courts have declined to find prejudice in trial counsel's failure to argue
certain evidence in mitigation when all of that evidence was before the sentencing court.
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In Woratzeck v. Stewart, 97 F.3d 329 (9th Cir. 1996), a habeas corpus case, the court
held that trial counsel's failure to investigate mitigating evidence or present witnesses at
the sentencing hearing did not prejudice the defendant, because all of the information
that the witnesses would have provided, including the defendant's "history of
nonviolence, his positive relationships with his family members, his problems with
alcohol, and his failed attempt to resuscitate his father . . . . was in the presentence
report, which the sentencing court considered for mitigation purposes." Id. at 336. In
Andrashko v. Borgen, 88 F. App'x 925 (7th Cir. 2004), another habeas corpus case, the
court held that trial counsel's failure to argue the defendant's "troubled childhood and
mental condition" as mitigating evidence did not prejudice the defendant. Id. at 930.
One of the reasons for the court's holding was defendant's "admission on appeal that all
of the mitigating evidence was contained in the presentence report and therefore was
already available to—and presumably considered by—the trial court." Id. The court
noted that the defendant's trial counsel "might have been able to present the mitigating
factors in a more positive light, but such a possibility does not establish prejudice." Id.
The details of Smith's mental health history were included in the PSR. It is also
reasonably clear that the sentencing judge actually took Smith's mental health history
Into account: she recommended to the Bureau of Prisons that Smith receive mental
health counseling. Govt.'s Resp., Ex. J. at 56. For these reasons, the Court concludes
that Smith has failed to show a reasonable probability that his sentence would have
been lower had Lewis argued the point at sentencing.
Conclusion
For the foregoing reasons, the Court denies Smith's section 2255 motion and
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directs the Clerk to enter judgment in favor of the government and against Smith. The
Court issues a certificate of appealability regarding both of Smith's claims, as
reasonable jurists could differ regarding their merit.
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: June 2, 2014
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