United States of America v. Myles
Filing
10
MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 3/31/2017. Mailed notice. (mgh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Raymond Myles,
Petitioner,
v.
United States,
Respondent.
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No. 16 CV 9946
Memorandum Opinion and Order
Raymond
conspiracy.
Myles
His
pled
plea
guilty
agreement
to
a
charge
specified
of
that
racketeering
the
applicable
Sentencing Guidelines range was 135-168 months, and it further
provided
that
downward
departure,
shall
include
if
a
the
government
then
term
of
“the
moved
sentence
imprisonment
at
sentencing
imposed
in
the
by
the
custody
for
a
Court
of
the
Bureau of Prisons of 66 percent of the low end of the applicable
guideline range.” Plea Agreement in 13 CR 772-13 (N.D. Ill.), DN
905 at 7, 9. Mr. Myles also agreed to waive his appellate and
collateral
rights,
excluding
his
right
to
assert
ineffective
assistance of counsel, if the government moved for a downward
departure. Id. at 13. The plea agreement provided that if I
rejected the parties’ agreed term of incarceration, either party
was free to withdraw from the agreement.
At
sentencing,
departure,
triggering
the
government
the
moved
for
parties’
agreement
a
to
downward
a
term
of
eighty-nine months of incarceration (i.e., sixty-six percent of
135 months). Nevertheless, Mr. Myles’s attorney argued that he
should receive credit against the agreed term for the twentythree
months
Mr.
Myles
spent
in
IDOC
custody
on
a
state
conviction for possession of a firearm. See Def.’s Sent. Mem. in
13 CR 772-13 (DN 1248) at 10; Gov’t. Resp., Exh. 1, Sent. Tr. at
10:18-11:4.
amounted
Defense
to
a
counsel
request
acknowledged
that
I
reject
that
the
his
plea
argument
agreement,
admitting that it was “a dangerous thing” because it meant that
“all bets are off,” which is to say, that the government would
then be entitled to seek a longer sentence. Id. at 12:15-24. I
agreed
that
counsel
after
the
dropped
hearing
position
the
from
was
dangerous,
argument.
counsel
Id.
and
at
from
after
which
12:24-13:5.
Mr.
Myles
defense
Ultimately,
himself,
I
accepted the plea agreement, concluding that it was “a pretty
fair agreement” that was “very good” for Mr. Myles. Id. at 17:67, 18:4.
Mr. Myles has now filed a motion to vacate his sentence
pursuant to 28 U.S.C. § 2255, arguing that his trial counsel was
ineffective: 1) for failing to appeal his sentence, and 2) for
failing to raise Witte v. United States, 515 U.S. 389 (1995), in
support of his request for a term of incarceration shorter than
he agreed to in the plea agreement. There is no merit to either
argument.
First, while it is true that the plea agreement preserved
ineffective assistance of counsel claims, the agreement’s broad
waiver of Mr. Myles’s appellate rights—which was triggered by
the
government’s
request
for
a
downward
departure—fatally
undermines his claim that his counsel was per se ineffective for
failing to file an appeal. Mr. Myles articulates no basis for
concluding that he is not bound by the appellate waiver, nor
does he suggest that the waiver is invalid or unenforceable.
Accordingly,
any
appeal
would
have
been
frivolous,
and
his
attorney was not ineffective for failing to pursue one.
There is also no factual or legal support for Mr. Myles’s
second argument. As explained above, his attorney did, in fact,
argue that Mr. Myles should receive “credit” against the agreed
eighty-nine
month
prison
firearms
conviction
after
observed
I
but
that
term
then
his
for
time
sensibly
effort
to
served
abandoned
modify
on
his
the
the
state
argument
term
would
effectively repudiate the plea agreement, exposing Mr. Myles to
the possibility of a much longer sentence. Nothing in Witte—
which
stands
for
the
proposition
that
a
defendant
may,
consistently with the Double Jeopardy Clause, be prosecuted for
conduct that was previously used as a basis for a sentencing
enhancement—suggests
that
his
counsel
should
have
acted
otherwise.
See
515
U.S.
at
406
(because
consideration
of
relevant conduct at sentencing does not constitute punishment
for that conduct, later prosecution for the same conduct does
not violate the Double Jeopardy Clause). At all events, even if
Mr. Myles could somehow show that Witte would have strengthened
his
case
for
a
downward
adjustment
from
the
parties’
agreed
term, it is far from clear that reneging on the plea agreement
would have benefitted Mr. Myles. Accordingly, Mr. Myles cannot
show
prejudice
as
required
to
prevail
on
an
ineffective
assistance of counsel claim. See Galbraith v. United States, 313
F.3d 1001, 1008 (7th Cir. 2002).
For the foregoing reasons, the motion is denied.
ENTER ORDER:
Elaine E. Bucklo
United States District Judge
Dated: March 31, 2017
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