United States of America v. Bostic
Filing
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MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 1/16/2018: For the foregoing reasons, the Court directs the Clerk to enter judgment denying Bostic's motion to vacate his sentence under 28 U.S.C. § 2255 [dkt. no. 1]. The Court declines to issue a certificate of appealability, because the disposition of Bostic's motion is not fairly debatable. Mailed notice. (pjg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
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Respondent,
vs.
DANA BOSTIC,
Movant.
Case No. 17 C 1645
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
In February 2012, Dana Bostic pled guilty to conspiracy to possess heroin with
intent to distribute. In August 2012, the Court sentenced him to a prison term of 456
months. On appeal, the Seventh Circuit vacated Bostic's sentence and remanded his
case for resentencing in light of an intervening Supreme Court case invalidating the ex
post facto application of a particular sentencing enhancement. See United States v.
Adams, 746 F.3d 734, 749 (7th Cir. 2014). The Court resentenced Bostic to 360
months' imprisonment in January 2015, and the Seventh Circuit affirmed this sentence
on appeal. See United States v. Gill, 824 F.3d 653, 666 (2016). Bostic has moved to
vacate his sentence pursuant to 28 U.S.C. § 2255(a).
Background
The Court assumes familiarity with the background facts of Bostic's criminal
case. In a nutshell, in 2009, the Chicago Police Department and the Drug Enforcement
Administration began investigating the New Breeds, a violent street gang that ran an
extensive heroin distribution operation on the west side of Chicago. At the time, Dana
Bostic controlled the New Breeds. He also supplied the heroin sold by the street-level
members and received the proceeds from those sales. The investigation culminated in
November 2010 with a twenty-two count grand jury indictment charging Bostic and
thirteen others with various drug-related offenses. Bostic pled guilty to the first count:
conspiracy to possess at least 1000 grams of heroin with intent to distribute in violation
of 21 U.S.C. §§ 841(a)(1) and 846.
At Bostic's original sentencing hearing, the Court determined that his advisory
Sentencing Guidelines range was 360 months to life, based on his criminal history
category of II and an adjusted offense level of 42. This adjusted offense level included,
among other enhancements, a two-level enhancement for maintaining a premises for
the purpose of manufacturing or distributing drugs ("the stash house enhancement"),
even though that enhancement had not gone into effect until after Bostic had already
committed the conspiracy offense. See U.S.S.G. § 2D1.1(b)(12). After noting that thenexisting Seventh Circuit precedent provided that the Ex Post Facto Clause did not apply
to the Sentencing Guidelines, the Court explained that it would use 18 U.S.C. § 3553(a)
to factor into Bostic's sentence the unfairness of applying the stash house enhancement
"after the fact." Sentencing Tr. 19:1-19:15. 1 At the close of the two-day sentencing
hearing, at which three of Bostic's co-conspirators testified, the Court sentenced him to
456 months in prison and 10 years of supervised release, noting that this sentence was
approximately in the middle of the advisory range. Bostic appealed, and the Seventh
Circuit vacated and remanded his case for resentencing based on its conclusion that
1
No. 10 CR 673, ECF Nos. 785-786.
2
the application of the stash house enhancement was in error, in light of an intervening
Supreme Court decision holding that the Ex Post Facto clause does indeed apply to the
Sentencing Guidelines. See Adams, 746 F.3d at 749.
At Bostic's resentencing hearing, the Court incorporated its comments from the
original hearing (except to the extent that they were inconsistent with points the Court
made at resentencing) and recalculated his offense level at 38. This recalculation
reflected the elimination of the stash house enhancement, as well as another two-level
reduction in the offense level in anticipation of an applicable amendment to the
Guidelines. In light of Bostic's criminal history category of II, this new offense level
yielded an advisory range of 262 to 327 months' imprisonment. After determining the
new range, the Court explained that, when it imposed Bostic's original sentence of 456
months' imprisonment, it accounted for the ex post facto nature of the stash house
enhancement by considering it as a section 3553(a) factor and reducing Bostic's
effective advisory range to 324 to 405 months even though, with the enhancement, the
actual advisory range was 360 months to life. Resentencing Tr. 33:6-34:11. 2 The Court
explained that it originally gave Bostic a sentence that was 51 months above that
effective guideline range in order to fully account for his conduct during the conspiracy
and his involvement in related violence. Id. at 34:9-34:18. Thus, at resentencing, the
Court announced it was imposing a new sentence of 360 months, which was
proportional to the initial sentence in the sense that it was "roughly the same[ ] amount
of increase over the top end" of the new guideline range of 262 to 327 months as the
initial sentence of 456 months was when compared to the effective guidelines range of
2
No. 10 CR 673, ECF No. 909.
3
324 to 405 months. Id. at 36:12-36:14. 3 The Seventh Circuit affirmed Bostic's new,
lower sentence in May 2016. See Gill, 824 F.3d at 664-66. In March 2017, Bostic filed
the present motion to vacate his sentence pursuant to 28 U.S.C. § 2255(a).
Discussion
Section 2255 authorizes a court to vacate, set aside, or correct a sentence that
was imposed in violation of the Constitution or other federal law or that is otherwise
subject to collateral attack. 28 U.S.C. § 2255(a). Bostic contends that he is entitled to
relief under section 2255 on six different grounds. First, he argues that he received
ineffective assistance of counsel in violation of the Sixth Amendment because his
attorney failed to object to the Court's application of the four-level leader/organizer role
enhancement in the absence of a specific finding that Bostic was the leader of a
conspiracy involving five or more participants. Next, Bostic argues that he received
ineffective assistance of counsel because his attorney likewise failed to object to the
Court's application of a two-level enhancement for the use of a firearm during the
commission of a drug offense, contending that he was not shown to have personally
possessed a gun. Bostic also argues that he should not have been assigned a criminal
history point for a 1998 conviction for criminal trespass to a vehicle and that his
attorney's failure to contest that point constituted ineffective assistance of counsel. He
challenges a number of conditions of supervised release as unconstitutionally vague or
otherwise improper and contends that his attorney's failure to object to them also
constituted ineffective assistance. Bostic further argues that his above-guidelines
sentence violates the Due Process Clause because it is the result of an improper initial
3
Gill, 824 F.3d at 658-59, 664-66, provides a thorough summary of this explanation at
the resentencing hearing.
4
Sentencing Guidelines calculation and that he received ineffective assistance of counsel
because his attorney did not make this particular argument at the resentencing hearing
or on appeal. Lastly, Bostic mistakenly asserts that the grand jury indictment is invalid
because it was not signed by the grand jury foreperson or the U.S. Attorney.
A defendant may not raise constitutional claims in a section 2255 motion that he
did not raise on appeal, unless he can demonstrate (1) good cause for his failure to
raise those claims and actual prejudice or (2) that the refusal to consider the claims
would result in a "fundamental miscarriage of justice." McCleese v. United States, 75
F.3d 1174, 1177 (7th Cir. 1996). As a preliminary matter, the Court notes that Bostic
does not initially frame a number of these arguments as ineffective assistance of
counsel issues. Nonetheless, when explaining why these issues were not procedurally
defaulted because they were not raised on direct appeal, Bostic makes it clear that
these are, in fact, ineffective assistance of counsel claims. Additionally, in his reply
brief, Bostic clarifies that all of the issues argued in his 2255 motion "were argued on
the basis of ineffective assistance of counsel." Reply at 1. Bostic has not demonstrated
that a refusal to consider these claims would result in a fundamental miscarriage of
justice. Because he has not established cause and prejudice for any reason other than
ineffective assistance of counsel, the Court considers all of these claims to be premised
on ineffective assistance.
An ineffective assistance of counsel claim may be brought for the first time under
section 2255; a defendant does not procedurally default such a claim by failing to raise
it on direct appeal. Gaylord v. United States, 829 F.3d 500, 506 (7th Cir. 2016).
Nonetheless, "[i]t is well settled that, absent a fundamental miscarriage of justice,
5
arguments based on the Sentencing Guidelines must be raised on direct appeal or not
at all." Allen v. United States, 175 F.3d 560, 563 (7th Cir. 1999) (internal quotation
marks and citations omitted). The Seventh Circuit has expressed a reluctance to allow
defendants to circumvent this rule by recasting such arguments as ineffective
assistance of counsel claims in collateral proceedings. Id. To ensure that "only
Sentencing Guidelines errors of constitutional proportion are considered on collateral
review," the Seventh Circuit requires "strict adherence to the requirements of an
ineffective assistance of counsel claim." Id.
To prevail on an ineffective assistance claim, the defendant must establish not
only that his attorney's performance "fell below an objective standard of
reasonableness," but also that he suffered prejudice as a result. Wyatt v. United States,
574 F.3d 455, 457 (7th Cir. 2009) (quoting Strickland v. Washington, 466 U.S. 668, 688
(1984)). There is a "strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Id. at 458 (citation omitted). Moreover,
prejudice is established only if the defendant shows that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694. A defendant claiming
ineffective assistance of counsel on a section 2255 motion is entitled to an evidentiary
hearing on his claim "if he has alleged facts that, if proven, would entitle him to relief."
Gaylord, 829 F.3d at 506 (internal quotation marks and citation omitted). But a district
court is not required to grant a hearing before denying a 2255 motion if "the motion and
the files and records of the case conclusively show that the prisoner is entitled to no
relief." 28 U.S.C. § 2255(b); Sullivan v. United States, 877 F.3d 337, 339 (7th Cir.
6
2017).
A.
Role enhancement
The federal Sentencing Guidelines provide for a four-level enhancement based
on the defendant's role in the offense "[i]f the defendant was an organizer or leader of
criminal activity that involved five or more participants or was otherwise extensive."
U.S.S.G. § 3B1.1(a). A three-level enhancement is warranted "[i]f the defendant was a
manager or supervisor (but not an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive." Id. § 3B1.1(b). A participant is
someone "who is criminally responsible for the commission of the offense, but need not
have been convicted." Id. § 3B1.1(a) Application Note 1. Bostic contends that his
attorney's failure to object to this enhancement constituted ineffective assistance of
counsel. Specifically, he argues that his attorney should have objected on the grounds
that (1) the Court did not support its conclusion that Bostic was the organizer or leader
of the conspiracy at issue, and (2) neither the Court nor the presentence report
specifically identified at least five participants. 4
The Seventh Circuit has held that the district judge "must identify five participants
in [the] offense" and determine whether the defendant exhibited leadership of or control
over those participants in order to apply the four-level enhancement. United States v.
Schweihs, 971 F.2d 1302, 1318 (7th Cir. 1992). Nonetheless, as the Government
notes, even when the district court fails to make those specific findings, the Seventh
4
The header of this section of Bostic's brief also alleges that "his Fifth Amendment
[right] of the Due Process Clause [sic] was violated in applying the enhancements
without the requisite number of participants," Mem. in Supp. of 2255 Mot. (Bostic. Mem.)
at 7, but he does not further develop this argument. As previously noted, in his reply
brief, he states that all of his claims "were argued on the basis of ineffective assistance
of counsel." Reply at 1.
7
Circuit will uphold the sentence on appeal if the record adequately supports a
determination that the enhancement is warranted. E.g., United States v. Hollins, 498
F.3d 622, 633 (7th Cir. 2007); United States v. McKinney, 98 F.3d 974, 982 (7th Cir.
1996).
As a preliminary matter, Bostic's attorney did, in fact, argue that the four-level
enhancement was unwarranted on the grounds that he was not an organizer or leader
of the drug conspiracy at issue but instead was just a manager or supervisor.
Sentencing Tr. 23:12-23:22. Based on the information presented in the presentence
report and the testimony at Bostic's sentencing hearing, the Court expressly rejected
this argument. Specifically, the Court concluded that "there is absolutely not a bit of
doubt that [Bostic] was running a drug dealing organization." Id. at 290:18-290:20; see
also id. at 297:10-297:12 ("What I do think has been absolutely demonstrated without
question is that he was the leader of a drug organization of longstanding. . . ."). The
Court also specifically rejected the suggestion that Bostic and co-conspirator Brandon
Richards had the same amount of authority and culpability and thus deserved
comparable sentences. See id. at 292:3-292:5 ("I know there's a dispute about whether
Mr. Bostic was above Mr. Richards or not. I don't have a bit of doubt about that. He
was.").
It is beyond question that the drug dealing organization led by Bostic involved
more than five participants. Thirteen people other than Bostic were charged under the
same conspiracy count in the indictment, and the presentence report indicates that at
least twelve of those individuals pled guilty to that particular count. The presentence
report's detailed description of the conspiracy likewise makes it clear that far more than
8
five participants were involved. According to the report, after Bostic and Richards
obtained heroin from suppliers, Richards, Ladonta Gill, and Christopher Hunter helped
process and package the heroin. Aaron Bagley distributed the packaged heroin to other
street supervisors, including Maurice Davis, Tommy Moore, Raynard Bowser, and
Cornelius Thomas. The street supervisors passed the drugs along to the street-level
sellers, who included Derek Thomas, Parish Mitchell, Raymond McClain, and Tommy
Adams. Testimony at the sentencing hearing revealed that even the lower-level
participants who had little to no personal contact with Bostic understood him to be in
charge of the operation. See id. at 53:7-53:8 (Davis explains that Bostic "took over the
neighborhood" once "Boodro" got killed); id. at 169:3-169:9 (Bagley states that it was
"common street knowledge" that Bostic controlled the territory around Congress, Van
Buren, and Pulaski); id. at 203:16-204:4 (Thomas testifies that he understood he was
not supposed to sell drugs that were not Bostic's because "it was his neighborhood . . .
his territory").
In light of this record, it was eminently reasonable for Bostic's attorney to decide
there was nothing to be gained by advancing the argument that the Court did not
specifically identify at least five participants over which Bostic exhibited leadership or
control. And even were the Court to find that the attorney's performance fell below an
objective standard of reasonableness in this regard, Bostic has failed to show that he
was prejudiced as a result. As previously explained, the Seventh Circuit will uphold the
application of a role enhancement if it is supported adequately by the record, even if the
district court failed to make the required findings when it applied the enhancement. See
Hollins, 498 F.3d at 633. Because the record in this case provides sufficient evidence
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to determine not only that Bostic was the leader of the drug conspiracy in question, but
also that this conspiracy involved substantially more than five participants over which
Bostic had ultimate control, the four-level enhancement was warranted and thus would
have been upheld on appeal. Because Bostic has failed to show both that his counsel's
performance fell below an objective standard of reasonableness and that he was
prejudiced as a result, the Court rejects this claim of ineffective assistance.
B.
Firearm enhancement
The Sentencing Guidelines also provide for a two-level enhancement "[i]f a
dangerous weapon (including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1). The
application notes explain that this enhancement "reflects the increased danger of
violence when drug traffickers possess weapons." Id. § 2D1.1(b)(1) Application Note
11(A). In the context of a jointly undertaken criminal activity such as a drug trafficking
conspiracy, unless otherwise specified, specific offense characteristics such as firearm
possession are to be determined broadly, on the basis of "all acts and omissions" of
others that were (1) within the scope of the conspiracy, (2) in furtherance of the
conspiracy, and (3) reasonably foreseeable in connection with the criminal activity in
question "that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or
responsibility for that offense." Id. § 1B1.3(a)(1)(B). Thus, it is well established that the
firearm enhancement is applicable "if a defendant or his co-conspirators possessed a
firearm during the course of a drug offense." United States v. Tanner, 628 F.3d 890,
907 (7th Cir. 2010) (emphasis added); see also United States v. Luster, 480 F.3d 551,
558 (7th Cir. 2007) ("Although U.S.S.G. § 2D1.1(b)(1) appears to penalize only those
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defendants who actually possess a firearm in the course of committing a drug offense,
section 1B1.3(a)(1)(B) makes clear that defendants can also be on the hook for firearms
possessed by their coconspirators so long as such possession was reasonably
foreseeable.")
Bostic argues that he received ineffective assistance of counsel when his
attorney failed to object to the application of this enhancement on the ground that Bostic
himself was not determined to have possessed a firearm. In light of Seventh Circuit
precedent establishing that reasonably foreseeable possession of a firearm by a coconspirator may be attributed to a defendant, this argument lacks merit. It is wellestablished that participants in Bostic's drug operation possessed guns in connection
with that operation. The presentence report states that, at the time of Richards's arrest,
law enforcement recovered two firearms and over $2,000 in cash from his residence.
Additionally, Bagley testified that he saw guns at 4019 West Van Buren, where New
Breeds including Bostic gathered socially, and that co-conspirators including Gill carried
guns around Bostic "to protect the spot and just to protect us in general." Sentencing
Tr. 170:3-173:3. The presentence report further states that Richards, Bostic, and
Bowser were intercepted in a number of cell phone calls discussing the need for New
Breeds members to have firearms. Thus, there is evidence not simply that members of
Bostic's organization carried guns during the course of the conspiracy, but also that this
was within the scope of the conspiracy and in furtherance of it. Moreover, given Bostic's
leadership role in the organization and the evidence that co-conspirators often carried
guns around him, it is unrealistic to suggest that his co-conspirators' gun possession
was not reasonably foreseeable to Bostic. See, e.g., Luster, 480 F.3d at 558
11
(defendant's "frequent presence" at location where guns and drugs were stored and
knowledge that co-conspirator ran a large-scale cocaine distribution ring raise an
inference that "he could have reasonably foreseen his coconspirator's possession of
firearms for intimidation or protection").
In light of this evidence, it was objectively reasonable for Bostic's attorney not to
challenge the application of the firearm enhancement on the ground that Bostic had not
been shown to personally possess a firearm. The Court therefore concludes that Bostic
has failed to demonstrate that he received ineffective assistance of counsel on this
basis.
C.
Criminal history point
Pursuant to section 4A1.1(c) of the Sentencing Guidelines, a defendant typically
receives one criminal history point for each prior sentence that is not counted as a
three-point "prior sentence of imprisonment exceeding one year and one month" or a
two-point "prior sentence of imprisonment of at least sixty days." U.S.S.G. § 4A1.1(a)(c). A sentence that was imposed more than ten years before the defendant
commenced the instant offense, however, is not counted for purposes of § 4A1.1(c). Id.
§ 4A1.1 Application Note 3. Additionally, prior sentences for misdemeanor offenses
"similar to" trespassing and a number of other less serious offenses are counted only if
the sentence was a term of probation of more than a year or a term of imprisonment of
at least thirty days, unless the instant offense is also similar. Id. § 4A1.2(c)(1).
Bostic argues that he received ineffective assistance of counsel when his
attorney failed to challenge the assignment of one criminal history point for a December
1998 sentence of three months' supervision on a charge of criminal trespass to a
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vehicle. First, he contends that his attorney should have objected because the
sentence was imposed more than ten years before he was charged with the instant
offense in November 2010. Bostic misunderstands the guidelines—only sentences that
were imposed "more than ten years prior to the defendant's commencement of the
instant offense" are excluded from § 4A1.1(c). Id. § 4A1.1 Application Note 3 (emphasis
added). The conspiracy count to which Bostic pled guilty states that the conspiracy
began "no later than in or about 2008." Indictment at 2. 5 It would be difficult to find that
counsel's decision not to argue that a December 1998 sentence should not be counted
under § 4A1.1(c) because it was imposed more than ten years prior to an offense that
commenced "no later than in or about 2008" was an unreasonable strategic decision.
Bostic also argues that his attorney should have objected to the assignment of
this particular criminal history point on another ground: he contends that criminal
trespass to a vehicle is "similar to" trespassing and thus should not have been counted
according to § 4A1.2(c)(1). Regardless of whether counsel's failure to raise that
argument was objectively reasonable, Bostic cannot show that he was prejudiced by
that failure. Even if the Court had declined to award Bostic a criminal history point for
the sentence in question, thereby reducing his point total from three to two, see
Sentencing Tr. 5:25-6:8, he would have remained in Criminal History Category II,
because Category I is reserved for defendants who have no more than a single criminal
history point. See U.S.S.G., Ch. 5, Pt. A. Accordingly, even if Bostic's attorney had
raised a successful objection to the assignment of this particular criminal history point,
the advisory range prescribed by the guidelines and Bostic's sentence would have
5
No. 10 CR 673, ECF No. 204.
13
stayed the same. For that reason alone, Bostic cannot prevail on this ineffective
assistance claim.
D.
Supervised release conditions
Bostic further argues that he received ineffective assistance of counsel when his
attorney failed to contest 11 different conditions of supervised release on appeal on the
ground that they are unconstitutionally vague or ambiguous. At this point, there is no
need to evaluate the constitutionality of the supervised release conditions or decide
whether Bostic's attorney's performance fell below an objective standard of
reasonableness in this regard, because he cannot show that he has been prejudiced.
Bostic contends that he was, in fact, prejudiced by his attorney's failure to object to the
conditions, because, as the Seventh Circuit explained in United States v. Kappes, 782
F.3d 828, 867 (7th Cir. 2015), if certain supervised release conditions are vacated on
appeal, "the balance struck by the sentencing judge might be disrupted to a degree
where the judge would wish to alter the prison term . . . to ensure that the purposes of
deterrence, rehabilitation, and protecting the public are appropriately furthered by the
overall sentence." This does not help Bostic's case. If, faced with such a situation, a
sentencing judge were inclined to alter a defendant's prison term at all, he or she would
be more likely to lengthen the prison term rather than shorten it. Cf. id. at 836 n.2 ("[I]t
is probable (and proper) that sentencing judges impose both custody and supervised
release for somewhat overlapping purposes, and if supervised release was not an
option the same judge might impose a lengthier custodial sentence. In this way, the
imposition of supervised release can be seen as potentially reducing the custodial
sentence.").
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Bostic cannot show prejudice because none of the contested conditions of
supervised release have yet gone into effect (nor will they for many years). Another
reason Bostic cannot show prejudice is that, pursuant to United States v. Neal, 810 F.3d
512, 516 (7th Cir. 2016), a district court may modify a defendant's supervised release
conditions "at any time" under 18 U.S.C. § 3583(e)(2). Thus, Bostic remains welcome
to file a motion before the Court challenging the legality of his supervised release
conditions under section 3583(e)(2). If Bostic does so, the Court will reassess and
modify his conditions of supervised release as appropriate. Because Bostic cannot
show that he was prejudiced by his attorney's failure to object to his supervised release
conditions, this ineffective assistance of counsel claim fails.
E.
Improper guidelines calculation
Bostic additionally argues that his above-guidelines sentence was based on an
improper initial guidelines calculation, in violation of the Due Process Clause. As a
preliminary matter, to the extent that this is an argument that Bostic's sentence was
either procedurally improper or substantively unreasonable, it is foreclosed because
those arguments were already considered and rejected by the Seventh Circuit on direct
appeal. See Gill, 824 F.3d at 663-66; Varela v. United States, 481 F.3d 932, 935 (7th
Cir. 2007) ("Issues that were raised on direct appeal may not be reconsidered on a §
2255 motion absent changed circumstances."). Bostic contends that this claim was
preserved by counsel on appeal (and thus not procedurally defaulted), but in the same
breath, he complains that "counsel did not call into question the Court's miscalcu[la]tion
of the . . . guid[e]line[s]." Bostic Mem. at 26. Bostic also claims that his attorney's
failure to argue that his sentence was based on an improper guidelines calculation
15
constituted ineffective assistance of counsel. Because the Court concludes that this
issue was not preserved on direct appeal, it will consider this claim, too, under the
ineffective assistance of counsel rubric.
Bostic's objection to the Court's initial guidelines calculation is confusing, but it
seems to consist of two alternative arguments. Bostic first argues that, because the
Court stated during the sentencing hearing that his original 456-month sentence was "in
the middle of the guideline range," Sentencing Tr. 302:14—which the Court had earlier
observed was 360 months to life—his attorney should have argued that it was improper
for the Court to resentence him to an above-guidelines sentence after determining that
the new advisory range was 262 months to 327 months. The Court explained at the
resentencing hearing that, although Bostic's new sentence was based on a different
guideline range, it was proportionate to the original sentence. Thus, according to
Bostic, because his original sentence was in the middle of the 360-months-to-life
guideline range, his new sentence would have to be in the middle of the recalculated
262-to-327-month range in order to be proportionate to the original sentence. It was not
objectively unreasonable for Bostic's attorney to decline to make this meritless
argument. As the Court explained (and as the Seventh Circuit reiterated in Gill), even
though the advisory range was 360 months to life with the stash house enhancement,
the Court took the ex post facto nature of that enhancement into account as a 3553(a)
factor and used a lower, "effective" guidelines range of 324 to 405 months to calculate
Bostic's original sentence of 456 months. Gill, 824 F.3d at 664-65; Resentencing Tr.
33:12-36:10. The fact that the Court did not fully explain this until the resentencing
hearing in no way invalidates Bostic's current sentence or the advisory guideline
16
calculation on which it was based. See Gill, 824 F.3d at 666. Because this argument
would not have been successful, Bostic likewise cannot show that he was prejudiced by
counsel's decision not to raise it on appeal.
Bostic argues, in the alternative, that his attorney should have argued on appeal
that, by basing his original sentence on an "effective" guidelines range that was lower
than the actual range of 360 months to life, the Court willfully ignored what was, at the
time, Seventh Circuit precedent requiring district courts to apply the stash house
enhancement. Even if the Court were to accept the premise of this argument, it pertains
only to Court's guidelines calculation at the original sentencing hearing, and not to
Bostic's current sentence, which was calculated using a guidelines range that did not
account for the stash house enhancement, in accordance with Supreme Court
precedent in Peugh v. United States, 569 U.S. 530 (2013). It was not unreasonable for
Bostic's attorney to decline to raise this losing argument (and, in any case, Bostic
cannot demonstrate prejudice resulting from that decision). The Court therefore
concludes that Bostic is not entitled to relief on this ineffective assistance claim.
F.
Indictment
Lastly, Bostic challenges the validity of the underlying indictment based on the
mistaken belief that it was not signed by the grand jury foreperson or the U.S. Attorney.
The Court need not address this argument, because although the public version of the
indictment (No. 10 CR 673, ECF No. 204) is unsigned, the sealed copy of the indictment
(No. 10 CR 673, ECF No. 207) contains the signatures of both the foreperson and the
U.S. Attorney.
17
Conclusion
For the foregoing reasons, the Court directs the Clerk to enter judgment denying
Bostic's motion to vacate his sentence under 28 U.S.C. § 2255 [dkt. no. 1]. The Court
declines to issue a certificate of appealability, because the disposition of Bostic's motion
is not fairly debatable.
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: January 16, 2018
18
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