Sample v. USA
MEMORANDUM AND ORDER, The Court DENIES Samples § 2255 motion (Doc. 1 ) and DISMISSES this action. The Court DIRECTS the Clerk of Court to enter judgment accordingly and DENIES a certificate of appealability. Signed by Judge J. Phil Gilbert on 12/26/2013. (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GEORGE L. SAMPLE,
Case No. 13-cv-941-JPG
UNITED STATES OF AMERICA,
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner George L. Sample’s motion to vacate,
set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). For the following reasons,
the Court denies Sample’s motion.
Sample pled guilty to one count of conspiracy to possess with intent to distribute five
grams or more of crack cocaine. See United States v. Sample, Case No. 05-cr-40043-JPG. At
sentencing, the Court found by a preponderance of the evidence that Sample’s relevant conduct
was at least 3,000 kilograms but less than 10,000 kilograms of marijuana equivalency units,
which under United States Sentencing Guideline Manual (“U.S.S.G.”) § 2D1.1 yielded a base
offense level of 33. No adjustments were made to that level. With an offense level of 33 and
criminal history category of IV, Sample’s sentencing range was 188 to 235 months. The
government, however, filed an enhancement pursuant to 21 U.S.C. § 851 subjecting Sample to a
twenty-year mandatory minimum. See 21 U.S.C. § 841(b)(1)(A). Consequently, pursuant to
U.S.S.G. § 5G1.1(b), Sample’s guideline sentence became 240 months. The undersigned Judge
sentenced Sample to 240 months imprisonment and judgment was entered on November 20,
2006. Sample did not file a direct appeal
Thereafter, Sample filed a motion for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) (Doc. 169) and United States Sentencing Guidelines Manual (“U.S.S.G.”)
§ 1B1.10. This Court appointed Sample counsel. Counsel filed a motion to withdraw and a “no
merits” statement asserting she could make no non-frivolous arguments in support of Sample’s
request. See Anders v. California, 386 U.S. 738, 744 (1967). The Court granted counsel’s
motion to withdraw and denied Sample’s motion for a sentence reduction finding that he could
not establish that he was “sentenced to a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o).”1
18 U.S.C. § 3582(c)(2). Specifically, Sample was sentenced based on a statutory minimum
rather than relevant conduct amounts. His sentence under both the old and amended guidelines
would have been twenty years.
Presently before the Court is Sample’s § 2255 motion, filed September 11, 2013, in
which he argues that (1) his crack-cocaine sentence is in violation of his equal protection rights
and (2) “the government failed to comply with 11(c)1(C) of the plea agreement.” The Court will
consider each argument in turn.
The Court must grant a § 2255 motion when a defendant’s “sentence was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However,
“[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt
v. United States, 83 F.3d 812, 816 (7th Cir. 1996). “Relief under § 2255 is available only for
errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental
defect which inherently results in a complete miscarriage of justice.” Kelly v. United States, 29
A defendant urging a sentence reduction under § 3582(c)(2) must satisfy two criteria: (1) the Sentencing
Commission must have lowered the applicable guideline sentencing range, and (2) the reduction must be consistent
with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).
F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion
without an evidentiary hearing if “the motion and the files and records of the case conclusively
demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see Sandoval v.
United States, 574 F.3d 847, 850 (7th Cir. 2009).
Prisoners used to be able to file motions under § 2255 at any time during their sentences.
However, on April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), Pub. L. No. 104-132, tit. I, § 106 (codified at 28 U.S.C. §§ 2244(a) & (b),
2255), which added a one-year limitations period for a motion attacking a sentence. The oneyear limitations period runs from the latest of four events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United States
is removed, if the movant was prevented from making a motion by such
(3) the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f). Where a petitioner does not file a direct appeal, the statute of limitations
bars any § 2255 action commenced one year and ten days after sentencing. 28 U.S.C. § 2255;
Fed. R. App. P. 4 (appeal in a criminal case must be filed within ten days of entry of judgment).
a. Equal Protection
Sample first argues that “the government ignoring the Equal Protection violation relies on
a purely technical argument. The government provides no convincing reason why ordinary
guideline sentences and ‘mandatory minimum’ sentences should be treated differently.” Doc. 1,
p. 19. Sample further argues that longer crack-cocaine sentences disproportionately impact
As an initial matter, the Court must determine whether Sample’s equal protection
challenge is timely. Here, Sample filed his § 2255 motion almost seven years after judgment
was entered in his criminal case. He does not argue and it does not appear that a later statute of
limitations is applicable to his equal protection argument. Accordingly, he clearly fails to meet
the limitations period under (f)(1), and the Court denies Sample’s motion on that ground.
Even if Sample had raised an equal protection argument within the applicable period of
limitations, his argument would fail. The Seventh Circuit has considered and rejected similar
equal protection arguments. See United States v. Moore, 644 F.3d 553, 557-58 (7th Cir. 2011).
Under the equal protection analysis, rational basis review applies unless Sample can show
Congress employed discriminatory intent when it enacted the crack-cocaine statute at issue. Id.
Sample concedes there was no discriminatory intent. Further, in Moore, the Seventh Circuit
explained that “[t]his is not one of those rare cases” where disparate impact alone demonstrates a
discriminatory purpose. Id. at 558. As the Seventh Circuit further explained, the statute survives
rational basis review because “[t]he crack-powder disparity is explainable on grounds other than
race – namely, Congress’s rational belief that crack cocaine offenses should be punished more
severely than powder cocaine offenses.” Id. Accordingly, Sample’s equal protection argument
fails on its merits.
b. Plea Agreement
Sample next argues that the Government failed to comply with the plea agreement. First,
Sample argues that the Government and Sample agreed that “the [G]overnment [would] accept
Mr. Sample’s account of the amount of relevant conduct he was responsible for,” but it failed to
do so in violation of the terms of the plea agreement. Sample further contends that his “account
of the amount of relevant conduct would have given Mr. Sample a guideline sentence.” Doc. 1,
p. 21. This argument necessarily fails because it is made well beyond the one-year limitations
period and there is no applicable exception.
Next, Sample argues the Government failed to comply with section three, provision three
found on page eleven of the plea agreement. The relevant paragraph reads as follows:
Defendant’s waiver of his right to appeal or bring collateral challenges shall not
apply to: 1) any subsequent change in the interpretation of the law by the United
States Supreme Court or the United States Court of Appeals for the Seventh
Circuit, which is declared retroactive by those Courts, and which renders the
Defendant actually innocent of the charges covered herein, and 2) appeals based
upon Sentencing Guideline amendments which are made retroactive by the United
States Sentencing Commission (see U.S.S.G. § 1B1.10). The Government
reserves the right to oppose such claims for relief.
Doc. 87, p. 11 in criminal case.
It is arguable that this claim may be timely under § 2255(f)(4). Nevertheless, Sample
fails to make a showing that the Government failed to comply with this plea agreement
provision. Sample has brought the instant collateral challenge and filed a motion in his criminal
case for a sentence reduction based on Sentencing Guidelines amendments. The Government, as
provided for in the plea agreement, opposed Sample’s sentence reduction motion. Accordingly,
Sample was able to exercise his rights to collaterally attack his sentence as provided for in the
plea agreement. His sentence reduction motion, however, was without merit because Sample
was sentenced pursuant to a mandatory minimum and thus the Sentencing Guideline
amendments had no impact on his sentence. Accordingly, Sample has failed to make a showing
that the Government did not comply with the plea agreement and his motion fails in that regard.
3. Certificate of Appealability
Having denied Sample’s motion, the Court must grant or deny a certificate of
appealability. See Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United
States District Courts; 28 U.S.C. § 2253(c). Section 2253(c)(2) provides that a certificate of
appealability may issue only if a petitioner has made a substantial showing of the denial of a
constitutional right. Sample has made no such showing. Therefore, the Court denies a certificate
of appealability. Pursuant to Rule 11(a), Sample may not appeal the denial of a certificate of
appealability, but he may seek a certificate from the Court of Appeals for the Seventh Circuit.
Accordingly, this Court DENIES Sample’s § 2255 motion (Doc. 1) and DISMISSES
this action. The Court DIRECTS the Clerk of Court to enter judgment accordingly and
DENIES a certificate of appealability.
IT IS SO ORDERED.
DATED: December 26, 2013
s/ J. Phil Gilbert
J. PHIL GILBERT
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