United States of America v. Smith

Filing 21

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 3/21/2017:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CARL SMITH,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

Case No. 16 C 4419

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Pro se Petitioner Carl Smith has filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. After the parties moved for several extensions of time to file their
legal memoranda, Smith’s § 2255 motion is now fully briefed. For the following reasons, the
Court denies Smith’s motion and declines to certify any issues for appeal. See 28 U.S.C. §§
2253(c)(2), 2255. [1]. Because the Court considered Smith’s July 21, 2016 “motion to vacate
sentence and dismiss indictment”in the context of Smith’s original § 2255 motion, the Court
denies Smith’s July 2016 motion as moot. [10].
BACKGROUND
On April 5, 2012, a grand jury returned an indictment charging Smith with sex trafficking
of a minor and by force in violation of 18 U.S.C. §§ 1591(a), (b)(2) (Counts 1 and 2);
transporting a minor in interstate commerce with the intent that the minor engage in prostitution
in violation of 18 U.S.C. § 2423(a) (Count 3); and sex trafficking by force in violation of 18
U.S.C. § 1591(a) (Counts 4 and 5).

On January 7, 2013, Smith appeared for his change of plea hearing. Prior to the hearing,
the government had tendered a written plea agreement to Smith, but before the hearing began,
Smith requested some last minute changes to the agreement. Moreover, although Smith declared
his intention to enter into a plea of guilty to Count 3 of the indictment at the hearing, during the
Rule 11 colloquy, Smith’s counsel stated that there was an error in the written plea agreement.
The Court then adjourned the proceedings. After resuming the change of plea hearing that same
day, Smith objected to the factual basis of Count 3, as well as the stipulated conduct that formed
the basis for Counts 1, 2, 4, and 5. The Court then reset the change of plea hearing to January
10, 2013, at which time defense counsel informed the Court that he had not had the opportunity
to review the revised written plea agreement with Smith. Thereafter, on January 11, 2013, Smith
pleaded guilty to Count 3 pursuant to a written plea agreement. Specifically, Smith pleaded
guilty to transporting a minor in interstate commerce with the intent that the minor engage in
prostitution in violation of 18 U.S.C. § 2423(a). Pursuant to the written plea agreement, the
Court would consider the offense conduct underlying Counts 1, 2, 4, and 5 as relevant conduct
for sentencing purposes. Smith’s anticipated total combined offense level was calculated as 43
with a criminal history category of I – resulting in an advisory sentencing guideline range of life
imprisonment.
On March 11, 2013, Smith moved to “terminate” his appointed counsel for rendering
ineffective assistance of counsel during the change of plea process. On March 19, 2013, the
Court granted counsel leave to withdraw and appointed a new defense attorney. Smith’s new
attorney filed a motion to withdraw the guilty plea on June 11, 2013. The Court denied Smith’s
motion to withdraw the guilty plea on July 22, 2013. Smith then filed a pro se motion to

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withdraw his plea on October 21, 2013. The Court subsequently denied Smith’s pro se motion
on October 25, 2013.
On August 5, 2014, the Court held Smith’s sentencing hearing. In Smith’s sentencing
memorandum, defense counsel argued that the application of U.S.S.G. § 4B1.5(b) was
impermissible double counting, or alternatively, that it overstated the seriousness of Smith’s
offenses. Counsel also argued that the restitution calculated by the government was inflated and
unrealistic, among other sentencing arguments. At Smith’s sentencing hearing, the Court
calculated a guidelines sentence of life imprisonment and imposed a below-guidelines term of
360 months, plus five years of supervised release – along with conditions of supervised release.
The Court entered final judgment on August 8, 2014, and Smith filed a timely notice of
appeal on August 11, 2014. On appeal, Smith’s counsel filed a motion asserting that Smith’s
appeal was frivolous seeking to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). The Seventh Circuit granted appellate counsel’s motion and
dismissed Smith’s appeal on June 2, 2015. See United States v. Smith, 606 Fed. Appx. 307 (7th
Cir. 2015) (per curiam).
LEGAL STANDARD
“Relief under [§ 2255] is available only in extraordinary situations, such as 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). In other words, to obtain relief under § 2255, a petitioner must show that his
“sentence was imposed in violation of the Constitution or laws of the United States, the court
lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is

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otherwise subject to collateral attack.” Swanson v. United States, 692 F.3d 708, 714 (7th Cir.
2012) (citation omitted). Accordingly, a § 2255 motion is not a substitute for a direct appeal nor
is it a means by which a defendant may appeal the same claims a second time. See Bousley v.
United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (relief under § 2255
“will not be allowed to do service for an appeal”). If a § 2255 petitioner does not raise a claim
on direct appeal, that claim is barred from the Court’s collateral review unless the petitioner can
demonstrate cause for the procedural default and actual prejudice from the failure to appeal, or
that enforcing the procedural default would lead to a fundamental miscarriage of justice. See
Brown v. Brown, 847 F.3d 502, 518 (7th Cir. 2017). Because Sixth Amendment claims of
ineffective assistance of counsel often involve evidence outside of the trial record, such claims
may be brought for the first time in a § 2255 motion. See Massaro v. United States, 538 U.S.
500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).
ANALYSIS
I.

Ineffective Assistance of Trial Counsel Claims
Construing his pro se § 2255 motion and filings liberally, see Beal v. Beller, 847 F.3d

897, 902 (7th Cir. 2017), Smith argues that his trial counsel provided constitutionally ineffective
assistance of counsel. To establish constitutionally ineffective assistance of trial counsel in
violation of the Sixth Amendment, Smith must show that (1) his trial attorney’s performance
“fell below an objective standard of reasonableness,” informed by “prevailing professional
norms” and (2) “but for counsel’s unprofessional errors the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). “To reflect the wide range of competent legal strategies and to avoid the pitfalls of

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review in hindsight, [the Court’s] review of an attorney’s performance is highly deferential and
reflects a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014) (citation
omitted); see also Delatorre, v. United States, 847 F.3d 837, 845 (7th Cir. 2017) (courts apply a
“‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable
professional assistance.”) (citation omitted). To establish prejudice, it is not enough “to show
that the errors had some conceivable effect on the outcome of the proceeding,” instead Smith
must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Carter v. Butts, 760 F.3d 631, 635 (7th Cir.
2014) (citation omitted).
A.

Failure to Object to Court’s Sentencing Errors

Smith first argues that his sentencing counsel was constitutionally ineffective for failing
to object at sentencing when the Court did not state the rationale for imposing the discretionary
conditions of his supervised release at his August 5, 2014 sentencing hearing. In making this
argument, Smith relies on United States v. Thomspon, 777 F.3d 368, 377-78 (7th Cir. 2015),
which held that a sentencing court must consider the factors set forth in 18 U.S.C. § 3553(a) and
§ 3583(d) and explain the reasons for imposing conditions of supervised release. The Seventh
Circuit decided Thompson on January 13, 2015 – approximately five months after the Court
sentenced Smith in August 2014.
Due to the Seventh Circuit deciding Thompson after Smith’s sentencing hearing, his first
argument is without merit because an attorney’s “failure to anticipate shifts in legal doctrine
cannot be condemned as objectively deficient.” Knox v. United States, 400 F.3d 519, 522 (7th

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Cir. 2005). In other words, trial counsel’s performance does not fall below an objective standard
of reasonableness because counsel was not required to anticipate future Seventh Circuit case law.
See Groves v. United States, 755 F.3d 588, 593 (7th Cir. 2014). The Court therefore denies this
aspect of Smith’s § 2255 motion.
B.

Failure to Contest Sentencing Guideline § 4B1.5(b)(1)

Next, Smith contends that his trial counsel provided ineffective assistance of counsel
because he failed to object to the sentencing enhancement under § 4B1.5(b)(1), which adds five
levels when the defendant’s “instant offense is a covered sex crime ... and the defendant engaged
in a pattern of activity involving prohibited sexual conduct.” See United States v. Schrode, 839
F.3d 545, 551 (7th Cir. 2016). Despite Smith’s argument to the contrary, his sentencing counsel
objected to the five-level enhancement pursuant to § 4B1.5(b)(1) in both Smith’s sentencing
memorandum and in open court at Smith’s sentencing hearing. (See 12 CR 0246, R. 79, Sent.
Mem. at 4-6; R. 112, Sent. Hr’g Tr. at 6, 12-13.) Furthermore, the Court considered counsel’s
arguments and rejected them at sentencing. (Sent. Hr’g Tr. at 48-49.)
Nonetheless, Smith argues that his counsel was constitutionally deficient because he did
not follow Smith’s express instructions to raise a consent defense. Whether counsel ignored
Smith’s instruction to raise a consent defense is of no moment because evidence of a victim’s
consent is immaterial to the Mann Act offense to which Smith pleaded guilty, namely, 18 U.S.C.
§ 2423(a). See United States v. Mi Sun Cho, 713 F.3d 716, 721 (2d Cir. 2013); United States v.
Jones, 808 F.2d 561, 565 (7th Cir. 1986). Moreover, Smith does not explain how counsel’s
performance prejudiced him – especially given that the Court sentenced him below the
applicable guideline range. See Rita v. United States, 551 U.S. 338, 347-56, 127 S. Ct. 2456,

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168 L.Ed.2d 203 (2007); United States v. Moore, ___ F.3d ___, 2017 WL 1018345, at *5 (7th
Cir. Mar. 15, 2017). Accordingly, Smith’s ineffective assistance of counsel argument based on
the defense of consent is without merit. See Peterson v. Douma, 751 F.3d 524, 533 (7th Cir.
2014) (“Sixth Amendment does not require counsel” to “press meritless arguments before a
court,” and “it is always good strategy to avoid wasting time or the court’s attention with claims
that are going nowhere.”) (citation omitted).
C.

Failure to Explain “True Basis” for Withdrawing Guilty Plea

Furthermore, Smith maintains that his trial counsel was constitutionally ineffective
because she failed to articulate the real reason he wanted to withdraw his guilty plea in his June
11, 2013 motion to withdraw. Smith specifically argues that the real reason he wanted to
withdraw his guilty plea is that he wanted to exercise his Sixth Amendment right to a jury trial
and that the facts and contents of his written plea agreement were exaggerated and did not
accurately describe the facts or the position he played. In his pro se motion to withdraw the
guilty plea, filed on October 21, 2013, Smith made these arguments on his own behalf when he
stated that he “was willing to go to trial” and that the “plea agreement did not accurately explain
his position.” (R. 63, 10/21/13 Pro Se Motion, at 2.) He further articulated that the factual
summary was “exaggerated.” (Id.) Because Smith made these arguments to the Court – after
which the Court considered and rejected them – counsel’s failure to make these arguments in the
June 2013 motion to withdraw the guilty plea did not prejudice Smith. See Strickland, 466 U.S.
at 694; Carter, 760 F.3d at 635.

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D.

Failure to Object to Restitution Amount

Smith next argues that his trial counsel provided constitutionally ineffective assistance
because counsel failed to object to the restitution amount at sentencing. Again, Smith’s
argument is unavailing because his sentencing counsel did object to the government’s restitution
estimate in Smith’s sentencing memorandum and at the sentencing hearing. (Sent. Mem. at 18;
Sent. Hr’g Tr. at 18-23.) In addition, the Court reduced the government’s estimate by 25% after
hearing counsel’s arguments, therefore, Smith cannot establish that counsel’s performance
prejudiced him. (Sent. Hr’g Tr. at 53.) The Court denies this § 2255 claim.
E.

Failure to Object to Sentencing Guideline § 2G1.3(b)

Similarly, in his next argument, Smith asserts that his trial counsel was constitutionally
ineffective for failing to object to the two-level enhancement under U.S.S.G. § 2G1.3(b). Once
again, counsel raised this issue in Smith’s sentencing memorandum and at sentencing, after
which the Court rejected counsel’s argument at the sentencing hearing. (Sent. Mem. at 5-8;
Sent. Hr’g Tr. at 7-12.). As such, Smith’s last ineffective assistance of trial counsel claim is
without a factual basis and is meritless.1

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Smiths’ undeveloped arguments that 18 U.S.C. § 1591 is unconstitutional under the
Fifth and Tenth Amendments are not only procedurally defaulted, but without merit. See United
States v. Copeland, 820 F.3d 809, 814 (5th Cir. 2016); United States v. Cook, 782 F.3d 983, 990
(8th Cir. 2015); United States v. Hunt, 622 Fed. Appx. 656, 657 (9th Cir. 2015); United States v.
Williams, 564 Fed. Appx. 568, 571 (11th Cir. 2014); United States v. Evans, 476 F.3d 1176,
1179 (11th Cir. 2007); cf. United States v. Laursen, 847 F.3d 1026, 1035 (9th Cir. 2017)
(Congress does not violate Tenth Amendment when enacting legislation through lawful exercise
of commerce clause power). Also, Smith did not plead guilty to the counts charging violations
of 18 U.S.C. § 1591, but rather pleaded guilty to transporting a minor in interstate commerce
with the intent that the minor engage in prostitution in violation of 18 U.S.C. § 2423(a).
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II.

Ineffective Assistance of Appellate Counsel Claims
Examining his pro se filings liberally, Smith also argues that his appellate counsel

provided ineffective assistance of counsel for failing to contest the Court’s application of
U.S.S.G. § 4B1.5(b) and for failing to raise the Court’s error in not stating the rationale for
imposing the discretionary conditions of his supervised release under United States v. Thomspon,
777 F.3d 368 (7th Cir. 2015). As with ineffective assistance of trial counsel claims, courts apply
the two-prong test set forth in Strickland to evaluate the effectiveness of appellate counsel. See
Makiel v. Butler, 782 F.3d 882, 897 (7th Cir. 2015). Under the Strickland performance prong, an
appellate counsel’s performance is constitutionally deficient if counsel fails to appeal an issue
that is obviously and clearly stronger than the claims counsel did raise on appeal. See id. at 898;
Blake, 723 F.3d at 888. In this context, appellate counsel need not raise every non-frivolous
claim, but should select among claims to maximize the likelihood of success on appeal. See
Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Makiel, 782 F.3d
at 897. To establish the Strickland prejudice prong, Smith must show that there is a reasonable
probability that the issues appellate counsel did not raise would have changed the outcome of his
appeal. See Johnson v. Thurmer, 624 F.3d 786, 793 (7th Cir. 2010).
Turning to Smith’s first argument, namely, that appellate counsel was constitutionally
ineffective for failing to contest the Court’s application of U.S.S.G. § 4B1.5(b), appellate
counsel did raise the Court’s application of U.S.S.G. § 4B1.5(b) in his Anders brief. (R. 16 C
4419, R. 16-1, Ex. B, Anders Brief, at 15-17, 20, 26.) Moreover, Smith argued that the Court’s
application of U.S.S.G. § 4B1.5(b) was in error in his Federal Rule of Appellate Procedure 51(b)
brief to the Seventh Circuit. (Ex. D, Rule 51(b) Brief, at 3.) In addition, the Seventh Circuit

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considered these arguments and rejected Smith’s arguments. (Ex. E, 6/02/16 Order, at 3.) Under
the circumstances, Smith’s argument is without a factual basis and is meritless.
Next, the Court turns to Smith’s argument that his appellate counsel provided ineffective
assistance for failing to raise the Court’s alleged error in not stating the rationale for imposing
the discretionary conditions of his supervised release under United States v. Thomspon, 777 F.3d
368 (7th Cir. 2015). The Court notes that in his Anders brief, counsel posited that Smith was
“unconcerned with the terms of the special conditions of supervised release that were imposed
on him in this case.” (Ex. B, Anders Brief, at 33.) In his Rule 51(b) brief, Smith does not
mention the conditions of his supervised release, although now he avers that “I never told my
attorney that I was not interested in challenging my supervised release conditions.” (R. 18,
12/19/16, Smith Aff. ¶ 2.) In any event, Smith cannot establish that he was prejudiced by
appellate counsel’s failure to assert this claim because Smith may bring a motion to modify the
conditions of his supervised release pursuant to 18 U.S.C. § 3583(e) one or two years before his
release from prison as discussed in detail below under Section III.
Turning back to Smith’s ineffective assistance of appellate counsel claims, he has failed
in his burden of establishing that the claims counsel did not bring are clearly stronger than the
claims his counsel did raise on appeal. See Makiel, 745 F.3d at 898; see also Jones v. Barnes,
463 U.S. 745, 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (“[e]xperienced advocates since
time beyond memory have emphasized the importance of winnowing out weaker arguments on
appeal and focusing on one central issue if possible, or at most on a few key issues.”). As such,

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the Court denies Smith’s ineffective assistance of appellate counsel claims.2
III.

Conditions of Supervised Release
In its response brief, the government recognizes that Smith may seek modification of

certain conditions of his supervised release pursuant to the Seventh Circuit’s 2015 decision in
Thompson. That being said, the Seventh Circuit recently addressed this issue in the context of an
inmate with a lengthy prison sentence concluding that the best practice is to wait until a year or
so before his release from prison to file a motion under 18 U.S.C. § 3583 to modify the
conditions of supervised release. See United States v. James, ___ Fed. Appx ___, 2017 WL
213191 (7th Cir. Jan. 18, 2017). In James, the Seventh Circuit reasoned that “[b]y waiting until
his release date approaches, [defendant] can take full advantage of the then-current case law
regarding conditions of supervised release,” keeping in mind that “under § 3583 he may ask the
district court to examine only his conditions of release; he may not receive a full resentencing,”
because the Seventh Circuit had already affirmed his conviction and sentence. See id.; see also
United States v. Gregory Hayes, ___ Fed. Appx. ___, 2016 WL 7436141, at *1 (7th Cir. Dec. 22,
2016) (“Governing law and circumstances sometimes change during incarceration, so judges
may require prisoners to make challenges all at once ‘in the year or so before release.’”); United
States v. Siegel, 753 F.3d 705, 717 (7th Cir. 2014) (noting that best practice is to consider
modifications on the eve of release from prison); see, e.g., United States v. Williams, 840 F.3d
865 (7th Cir. 2016) (per curiam) (supervised release modification request made fourteen years
before release was premature). Similarly, although the Court denies Smith’s § 2255 claim that

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Because the motion, files, and records of this case conclusively show that Smith is not
entitled to any relief under § 2255, the Court need not hold an evidentiary hearing. See Mitchell
v. United States, 846 F.3d 937, 941 (7th Cir. 2017); 28 U.S.C. § 2255(b).
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appellate counsel was constitutionally ineffective for failing to raise his claims based on
Thompson, Smith may file a motion to modify the conditions of his supervised release pursuant
to 18 U.S.C. § 3583 one or two years before release from prison.
IV.

Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), a petitioner does not have the absolute right to appeal a

district court’s denial of his § 2255 motion, instead, he must first request a certificate of
appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 154 L.Ed.2d 931
(2003). A petitioner is entitled to a certificate of appealability only if he can make a substantial
showing of the denial of a constitutional right. See id. at 336; Flores-Ramirez v. Foster, 811
F.3d 861, 865 (7th Cir. 2016). Under this standard, Smith must demonstrate that “reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529
U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).
As discussed, Smith’s ineffective assistance of trial and appellate counsel claims have no
factual basis or are without merit, and thus Smith has not demonstrated that reasonable jurists
would disagree as to the Court’s conclusions regarding these claims. Accordingly, the Court
declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

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CONCLUSION
The Court denies Petitioner’s motions to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255 and declines to certify any issues for appeal pursuant to 28 U.S.C. §
2253(c)(2). Dated: March 21, 2017
ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge

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