United States of America v. Franklin
Filing
7
MEMORANDUM Opinion and Order. Signed by the Honorable Ronald A. Guzman on 12/22/2015. Mailed notice(sxw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,)
Plaintiff,
v.
DON FRANKLIN,
Defendant.
)
)
)
)
)
)
)
)
No. 15-cv-7706
Judge Ronald A. Guzmán
MEMORANDUM OPINION AND ORDER
Defendant’s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [1] is denied. Defendant’s application to proceed in forma pauperis [3] and motion for
attorney representation [4] are denied as moot. Civil case terminated.
STATEMENT
Defendant’s sole argument for reducing his sentence is that his criminal history was
improperly calculated in violation of Amendment 709 to the United States Sentencing
Guidelines, which changed the manner by which “prior sentences” are counted for the purposes
of determining a defendant’s criminal history score. See U.S.S.G. § 4A1.2(a)(2), Supp. to App. C
235 (2008) (Amendment 709). This claim fails on both procedural and substantive grounds.
First, Defendant has procedurally defaulted on his claim by failing to appeal his sentence
and conviction in any way, much less the precise raised issue on this motion. See Turner v.
United States, 693 F.3d 756, 758 (7th Cir. 2012) (explaining that a Section 2255 claim is
procedurally defaulted if it could have been made on direct appeal). Defendant’s only excuse for
not doing so is that he was unaware of what, in his view, is the applicable law. But his ignorance
of the law is insufficient to excuse his procedural default. See id.
In so holding, the Court is mindful that Defendant is pro se and that his claims must be
construed broadly to support any potential grounds for relief. However, his motion does not
provide a legally cognizable explanation for his failure to appeal, and he has failed to submit any
reply brief, despite having ample opportunity to do so. The Court therefore has no basis for
ignoring his procedural default.
Yet even if there were a way to get around Defendant’s default, it would be pointless
because his claim also fails as a matter of law. Section 2255 provides that a prisoner “may move
the court which imposed the sentence to vacate, set aside, or correct the sentence” on the ground
that his sentence was imposed in violation of the Constitution or the laws of the United States.
28 U.S.C. § 2255. To receive relief under Section 2255, a petitioner must demonstrate a
“fundamental defect which inherently results in a complete miscarriage of justice.” United States
v. Addonizio, 442 U.S. 178, 185 (1979). Under this standard, Defendant’s argument that the
Court improperly calculated his sentence under Amendment 709 is a nonstarter.
Amendment 709 generally provides that sentences that were imposed on the same day
should be treated as a single sentence, not separate sentences. See U.S.S.G. § 4A1.2(a)(2).
Accordingly, Defendant claims that the Court mistakenly added two points for each of two
predicate offenses (possession of a controlled substance and aggravated use of a
weapon/vehicle) that were imposed on the same day — June 12, 2003. But there was no mistake
in counting these as separate offenses.
Guidelines Section 4A1.2(a)(2) (a.k.a. Amendment 709) plainly states:
[P]rior sentences always are counted separately if the sentences were imposed
for offenses that were separated by an intervening arrest (i.e., the defendant is
arrested for the first offense prior to committing the second offense).
2
U.S.S.G. § 4A1.2(a)(2). Here, Defendant’s Presentence Investigation Report indicates that he
was arrested for aggravated use of a weapon/vehicle on October 3, 2002, whereas he was
arrested for possession of a controlled substance on April 16, 2003. (See USA v. Franklin et
al., 13-cr-00367-1, Dkt. # 61 at 10-11.) Defendant does not dispute this in his motion. Thus,
while he was indeed sentenced for those crimes on the same day, there was an intervening
arrest between the offenses, which precludes consolidating them into a “single” offense for
Guidelines purposes. See U.S.S.G. § 4A1.2(a)(2). Defendant’s Section 2255 claim is therefore
denied.
CONCLUSION
Defendant’s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [1] is denied. Defendant’s application to proceed in forma pauperis [3] and motion for
attorney representation [4] are denied as moot. Civil case terminated.
SO ORDERED.
ENTERED: December 22, 2015
____________________________________
HON. RONALD A. GUZMÁN
United States District Judge
3
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?