Smiley v. USA

Filing 6

MEMORANDUM AND ORDER dismissing case. Signed by Judge J. Phil Gilbert on 11/21/08. (eed)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS JOHN A. SMILEY, Petitioner/Defendant, vs. UNITED STATES of AMERICA , Respondent/Plaintiff. ) ) ) ) ) ) ) ) )

CIVIL NO. 07-cv-881-JPG CRIMINAL NO. 04-cr-40006

MEMORANDUM AND ORDER GILBERT, District Judge: This matter is before the Court on Petitioner's motion for relief pursuant to 28 U.S.C. § 2255. On April 20, 2005, Petitioner pleaded guilty to two counts involving the manufacture and distribution of methamphetamine. Petitioner initially was sentenced to 240 months imprisonment, ten years supervised release, a fine of $400, and a special assessment of $200. On January 25, 2007, upon the Government's Rule 35 motion, Petitioner's sentence was reduced to 156 months imprisonment. He did not appeal that new sentence, but Petitioner later filed the instant motion under § 2255. Petitioner entered into a plea agreement with the Government in an attempt to benefit himself. In exchange for the benefits he received, Petitioner waived his right to a direct appeal and to a collateral attack under Section 2255. Specifically, the plea agreement provides in relevant part: The Defendant is aware that Title 18, Title 28, and other provisions of the United States Code afford every defendant limited rights to contest a conviction and/or sentence. Acknowledging all this, and in exchange for the recommendations and concessions made by the Government in this plea agreement, the Defendant knowingly and voluntarily waives his right to contest any aspect of his conviction and sentence that could be contested under Title 18 or Title 28, or under any other

provision of federal law, except that if the sentence imposed is in excess of the Sentencing Guidelines as determined by the Court, the Defendant reserves the right to appeal the reasonableness of the sentence. The Defendant acknowledges that in the event such an appeal is taken, the Government reserves the right to fully and completely defend the sentence imposed, including any and all factual and legal findings supporting the sentence, even if the sentence imposed is more than severe than that recommended by the Government. Defendant knowingly and voluntarily waives his right to seek a pardon, whether before or after his release from custody. Plea agreement at ¶ III.2. (Doc. 97, criminal case; emphasis added). The Seventh Circuit has held that "a waiver of a right to appeal contained within a guilty plea is enforceable," provided the waiver is knowing and voluntary. United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.), cert. denied, 520 U.S. 1281 (1997); United States v. Schmidt, 47 F.3d 188, 190 (7th Cir. 1995). See also United States v. Wenger, 58 F.3d 280, 281 (7th Cir.), cert. denied, 116 S.Ct. 349 (1995). A waiver will not be enforced, however, if the district judge relied on impermissible facts in sentencing (for example, the defendant's race or gender) or if the judge sentenced the defendant in excess of the statutory maximum sentence for the offense committed. Feichtinger, 105 F.3d at 1190. Similarly, the Seventh Circuit has found that a waiver of Section 2255 relief in a plea agreement is enforceable, and should be treated no differently than the waiver of a direct appeal. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999). Indeed, the Seventh Circuit has specifically stated that both statutory and constitutional rights can be waived in a plea agreement. Id. at 1144; United States v. Woolley, 123 F.3d 627, 631-32 (7th Cir. 1997); Feichtinger, 105 F.3d at 1190. For the waiver to apply, however, Petitioner's sentence had to be within the maximum provided for in the statute of conviction and the applicable guideline range based upon Petitioner's relevant conduct. The maximum penalty for distribution of between 1.5 and 5 kilograms of -2-

methamphetamine is life imprisonment. 21 U.S.C. § 841(b)(1)(A)(viii). Based upon the conduct to which Petitioner admitted and others attributed to him, his applicable range of imprisonment was from 240 months to life imprisonment; Petitioner was ultimately sentenced to 156 months. There is no basis in the record for avoiding this waiver, as the Court neither relied upon constitutionally impermissible factors in sentencing Petitioner nor sentenced him above the statutory maximum. Therefore, because the waiver provisions of a plea agreement are enforceable, Petitioner has waived any right to bring this Section 2255. Accordingly, Petitioner's motion pursuant to 28 U.S.C. § 2255 is DENIED, and this action is DISMISSED with prejudice. IT IS SO ORDERED. Dated: November 21, 2008. s/ J. Phil Gilbert U. S. District Judge

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