UNITED STATES OF AMERICA v. Lewisbey

Filing 13

MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 9/26/2018: Defendant's § 2255 motion 1 is denied, and the Court declines to issue a certificate of appealability. Civil case terminated. [For further details see Statement]. Mailed notice(is, )

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

United States of America,
v.

David Lewisbey,
Defendant.

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Case No: 17 C 8949
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
For the reasons stated below, Defendant’s § 2255 motion [1] is denied, and the Court
declines to issue a certificate of appealability. Civil case terminated.
STATEMENT
Background
Defendant was charged in a third superseding indictment with one count of unlawfully
dealing in firearms, two counts of unlawfully transporting firearms, and two counts of crossing
state lines with the intent to engage in the unlicensed dealing of firearms. After a two-week jury
trial, he was found guilty on all counts. The Court sentenced Defendant to 200 months’
incarceration, and his conviction was affirmed on appeal. United States v. Lewisbey, 843 F.3d
653, 660 (7th Cir. 2016).
Currently before the Court is Defendant’s motion for relief under 28 U.S.C. § 2255,
which allows a federal prisoner to move to vacate his sentence or conviction on several grounds,
including because “the sentence was imposed in violation of the Constitution or laws of the
United States . . . or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Relief
under this statute 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.” Martin v. United States, No. 16 C 6405, 2017 WL 2805233, at *2 (N.D.
Ill. June 28, 2017) (internal citations and quotation marks omitted). The Court liberally
construes Defendant’s pro se filings. See Echols v. Craig, 855 F.3d 807, 812 (7th Cir. 2017).
Defendant contends that trial counsel was ineffective for:
1.

Failing to hire an expert witness to opine on and rebut inferences to be
made from photos of Defendant holding guns and money;

2.

Failing to hire an expert to challenge Agent Raschke’s qualifications and

rebut his opinions regarding the location of calls made from Defendant’s
cell phone;
3.

Failing to object to the jury’s not having made a determination as to the
quantity of firearms attributable to him at sentencing;

4.

Failing to challenge the government’s motion seeking Defendant’s cell
phone records; and

5.

Failing to argue that Defendant’s sentence was unreasonable and created
unwarranted sentencing disparities.

Defendant further contends that the cumulative nature of trial counsel’s ineffectiveness
entitles him to relief, and that appellate counsel was ineffective for not consulting Defendant
regarding the issues raised on appeal and propounding issues counsel knew to be frivolous.
Analysis
A defendant seeking relief for purported ineffective assistance of counsel must
demonstrate that counsel’s performance was so deficient as to be objectively unreasonable under
prevailing professional norms and that he suffered prejudice as a result of counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
Defendant’s contention that counsel was ineffective for failing to hire an expert to rebut
the government’s position that the photos showing Defendant with guns and money constituted
evidence of his guilt is unavailing. Defendant asserts that an expert could have testified that “the
images the [government] contend[ed] were images of an illegal business . . . were nothing more
than images available to any person who has [I]nstagram accounts” who was attempting to
“highlight their post.” (Def.’s Mem. & Br. Supp., Dkt. # 3, at 5-6.) Such an argument, however,
does not require expert testimony and in all likelihood would have been inadmissible under
Federal Rule of Evidence 702. Defendant testified that he was a gun collector who downloaded
and kept photos of guns on his phone to facilitate his collecting (United States v. Lewisbey, 12
CR 354 (N.D. Ill.), Trial Tr., Dkt. # 296, at 970-71), and posted photos of himself with large
amounts of cash (from selling marijuana) because he was “young and dumb” and was being
“silly.” (Id. at 979.) The Court can discern no basis on which expert testimony could or should
have been offered with respect to the photographs. Accordingly, the failure to hire an expert with
respect to inferences to be derived from the photographs was not objectively unreasonable under
prevailing professional norms.
The same is true for Defendant’s argument that counsel was deficient for not hiring an
expert to rebut Agent Raschke’s testimony that, based upon his analysis of Defendant’s cell
phone records, Defendant made cell phone calls at dates, times, and locations that were
consistent with illegal gun transactions described by other witnesses. According to Defendant,
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although he directed counsel to hire an expert to rebut Agent Raschke’s testimony, counsel failed
to do so.1 But Defendant’s theory of the case was that he attended gun shows in Indiana and
engaged in firearms transactions as a collector, not that he never engaged in firearms
transactions. Thus, expert testimony rebutting Agent Raschke’s statements that the cell phone
data was consistent with Defendant’s having been involved in gun purchases would not
necessarily have supported Defendant’s theory of the case. Defendant also states that counsel
should have challenged Agent Raschke’s qualifications, but fails to provide any valid basis for
this argument. Agent Raschke testified that he had received approximately 500 hours of training
in cellular analysis, cellular network operations and infrastructure, and historical cell-site
analysis. (Id., Dkt. # 293, at 466.) He further testified that he has been asked to perform cell-site
analysis “hundreds of times,” and teaches law enforcement officials and other individuals how to
analyze cell phone data. (Id.) Defendant points to no basis on which a challenge to Agent
Raschke’s qualifications would have been successful. Thus, this basis for relief is also rejected.
Defendant next contends that counsel was ineffective for not challenging the Court’s role
in determining enhancements to his sentence under the lesser preponderance-of-the-evidence
standard of proof, rather than presenting the issues to a jury for a determination pursuant to the
more stringent beyond-a-reasonable-doubt standard. As noted by the Seventh Circuit in rejecting
this exact argument: “We have repeatedly held . . . that sentencing enhancements need not be
found by a jury beyond a reasonable doubt because they no longer alter the statutory maximum.”
United States v. White, 472 F.3d 458, 464 (7th Cir. 2006). Thus, counsel’s failure to make the
arguments does not amount to constitutionally deficient performance.
Fourth, Defendant asserts that counsel was ineffective for failing to challenge the
government’s obtaining historical cell-site location information (“CSLI”) for Defendant’s mobile
phone. The government obtained Defendant’s data pursuant to a motion under the Stored
Communications Act, which allowed the government access to such information either through a
probable-cause warrant or through a court order based on the government having set forth
“specific and articulable facts showing that there are reasonable grounds to believe that . . . the
records . . . are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).
In this case, the government pursued the latter route and did not obtain a search warrant
supported by probable cause. Recently, however, the Supreme Court concluded that because the
acquisition of historical CSLI constitutes a search under the Fourth Amendment, access to such
information requires a showing of probable cause. Carpenter v. United States, 138 S. Ct. 2206,
2217 (2018) (“[W]e hold that an individual maintains a legitimate expectation of privacy in the
record of his physical movements as captured through CSLI.”). The Carpenter court stated that
it “need not decide whether there is a limited period for which the Government may obtain an
individual’s historical CSLI free from Fourth Amendment scrutiny, and if so, how long that
period might be,” and concluded that “[i]t is sufficient for our purposes today to hold that
1

Counsel filed a pretrial motion seeking to exclude Agent Raschke’s testimony on the
ground it was based on a flawed methodology and insufficient facts and data, which the Court
denied. (United States v. Lewisbey, 12 CR 354 (N.D. Ill.), 9/6/13 Order, Dkt. # 158.)
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accessing seven days of CSLI constitutes a Fourth Amendment search.” Id. n.8.
Assuming arguendo that the Sixth Amendment required counsel to file a motion to
suppress the CSLI on the ground that the government did not obtain a probable-cause warrant,
Defendant has failed to demonstrate that a such motion would have resulted in the exclusion of
the CSLI evidence. As the Fourth Circuit recently concluded:
The exclusionary rule’s “sole purpose . . . is to deter future Fourth Amendment
violations.” Thus, when investigators “act with an objectively ‘reasonable
good-faith belief’ that their conduct is lawful,” the exclusionary rule will not
apply. Objectively reasonable good faith includes “searches conducted in
reasonable reliance on subsequently invalidated statutes.” [Defendant] does not,
and cannot, deny that investigators in this case reasonably relied on court orders
and the Stored Communications Act in obtaining the cell site records. Without
question, then, the good-faith exception to the exclusionary rule applies to
investigators’ actions here.
United States v. Chavez, 894 F.3d 593, 608 (4th Cir. 2018). The same reasoning applies in the
instant case. Although the Seventh Circuit had not ruled on the Fourth Amendment issue when
the government obtained the CSLI in this case, as recently as last year, several other appellate
courts and courts in this district had concluded that an individual did not have a right of privacy
in CSLI. See United States v. Rosario, No. 15 CR 611, 2017 WL 2117534, at *2 (N.D. Ill. May
16, 2017) (noting that while “[t]he Seventh Circuit has not addressed whether the Government’s
acquisition of CSLI from a third-party service provider violates a reasonable expectation of
privacy so as to constitute a search under the Fourth Amendment[,] . . . every federal court of
appeals to confront this issue has held that the acquisition of CSLI from a third-party service
provider is not a Fourth Amendment search.”). The court in Rosario went on to note that
“[d]istrict courts within the Seventh Circuit to consider this issue have likewise concluded that
the acquisition of CSLI is not a Fourth Amendment search.” Id. (citations omitted). Thus,
because the government obtained Defendant’s CSLI in a manner it believed at the time was
constitutional, the good-faith exception to the exclusionary rule would likely apply to any motion
to suppress. Defendant, therefore, cannot demonstrate prejudice, so this basis for relief is denied.
According to Defendant, counsel was also ineffective for having failed generally to argue
the unreasonableness of his sentence and, specifically, that the sentence proposed by the
government would result in an unwarranted sentencing disparity as compared to similarlysituated defendants. Defendant’s arguments have no merit. Counsel challenged practically every
sentencing enhancement, and sought a guidelines range of 33-41 months’ imprisonment based in
part on the purported need to avoid unwarranted sentencing disparities. (United States v.
Lewisbey, 12 CR 354 (N.D. Ill.), Dkt. ## 239, 241.) Counsel’s performance with respect to
Defendant’s sentencing was not deficient.
Defendant states at least twice in his motion that counsel was not fully focused on
Defendant’s case because he was “distracted” by his own criminal case. But Defendant was
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admonished about the possible conflict of interest and expressly waived any conflict. Lewisbey,
843 F.3d at 656-67. Defendant sought new counsel only after his trial was over, when he was
informed of a separate criminal proceeding against his lawyer. Id. Thus, any argument that trial
counsel was ineffective due to a conflict of interest is unavailing. Nor is Defendant’s assertion
that the cumulative effect of counsel’s errors entitles him to relief persuasive given that the Court
has concluded that even considered individually, none of the bases asserted by Defendant
demonstrate that counsel’s performance was so deficient as to be objectively unreasonable under
prevailing professional norms. In any event, Defendant has not shown prejudice, given that
“[t]he record contains prodigious evidence of [his] guilt.” Lewisbey, 843 F.3d at 660.
Finally, Defendant challenges his representation on appeal, arguing that counsel failed to
confer with him, did not raise cognizable issues on appeal, and argued only frivolous issues,
which counsel knew had “no appellate value.” (Def.’s Mem. & Br. Supp., Dkt. # 3, at 30.)
“Appellate ineffective-assistance claims require the reviewing court to look at the issue that
appellate counsel failed to raise, and determine whether that issue was ‘obvious and clearly
stronger’ than issues that appellate counsel did raise.” Walker v. Griffin, 835 F.3d 705, 709 (7th
Cir. 2016) (citation omitted). Defendant appears to contend that appellate counsel did not
sufficiently challenge trial counsel’s deficiencies. However, the Court has concluded that none
of trial counsel’s purported deficiencies have merit; thus, Defendant fails to establish a
“reasonable probability that the issues appellate counsel did not raise would have changed the
outcome of his appeal.” Miller v. United States, No. 16 C 4387, 2018 WL 3973536, at *11 (N.D.
Ill. Aug. 20, 2018).
Conclusion
For the reasons stated above, Defendant’s § 2255 motion is denied. 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 (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. Stechauner v. Smith,
852 F.3d 708, 718 (7th Cir. 2017). Under this standard, Defendant 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 (2000)).
Defendant has failed to make such a showing; therefore, the Court declines to issue a
certificate of appealability.

Date: September 26, 2018

_________________________________
Ronald A. Guzmán
United States District Judge

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