Lewis v. USA

Filing 15

ORDER: Petitioner Brian Lewis' Motion to Vacate, Set Aside,or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1 ) is DENIED and this action is DISMISSED with prejudice. All pending motions (Docs. 10 , 11 , 13 , and 14 ) are TERMINATED as MOOT. The Clerk of Court is DIRECTED to enter judgment accordingly. Signed by Judge Staci M. Yandle on 10/26/2020. (mah)

Case 3:18-cv-01274-SMY Document 15 Filed 10/26/20 Page 1 of 5 Page ID #57

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BRIAN R. LEWIS,
Petitioner,
vs.
UNITED STATES OF AMERICA
Respondent.

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Case No. 18-cv-1274-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter comes before the Court on Petitioner Brian R. Lewis’ Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). For the following reasons, the Motion is
DENIED.
Factual and Procedural Background
On July 17, 2013, a federal grand jury indicted Lewis on charges of conspiracy in violation of
18 U.S.C. §§ 371 and 2 (Count 1), theft of an interstate shipment in violation of 18 U.S.C. §§ 659 and
2 (Counts 2, 7, 9, and 10), and possession of stolen goods in violation of 18 U.S.C. §§ 2315 and 2
(Counts 3, 4, 5, 6, and 8). See United States v. Lewis, 17-cr-30200, Doc. 1. Lewis entered into a
written plea agreement with the Government and pleaded guilty on December 30, 2013 (Docs. 369,
489).
In the plea agreement, the Government agreed to dismiss Count 7 at sentencing. The parties
anticipated a Guidelines offense level of 23, criminal history category III, and resulting Guidelines
sentencing range of 57-71 months imprisonment (Doc. 371). The plea agreement also contained the
following appeal waiver:

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[I]n exchange for the recommendations and concessions made by the United States 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 (or any
applicable statutory minimum, whichever is greater), the Defendant reserves the right
to appeal the reasonableness of the sentence (Doc. 371, pp. 8-9).
The Court reviewed the plea agreement with Lewis while he was under oath (see Doc. 489). Lewis
acknowledged in open court he had read the agreement, discussed it with counsel, understood it, and
agreed to be bound by its terms. Id. at pp. 18-26. He confirmed that he understood he was waiving
most of his appellate rights under the plea agreement. Id. at pp. 18, 22-24.
On May 2, 2014, Lewis was sentenced in this Court to 71 months imprisonment, consisting of
60 months on Count 1 and 71 months on the remaining counts, all sentences to run concurrently, 3
years of supervised release on each count, restitution in the amount of $362,504.05, and a $900 special
assessment (Doc. 470). 1 He filed a direct appeal challenging the Court’s imposition of certain
conditions of supervised release (see United States v. Lewis, Case No. 14-2075, at Doc. 16).
Because the same or similar arguments regarding conditions of supervised release were before
the United States Court of Appeals for the Seventh Circuit in numerous pending cases, the Government
moved to stay briefing pending the appellate court’s decision in one or more of those cases. United
States v. Lewis, Case No. 14-2075, Doc. 21. On January 13, 2015, the Seventh Circuit issued its
decision in United States v. Thompson, 777 F.3d 368 (7th Cir. 2015) and held that district courts must
consider the sentencing factors set forth in 18 U.S.C. § 3583(d) and 18 U.S.C. §§ 3553(a)(1), (a)(2)(B),
(a)(2)(C), and (a)(2)(D) in imposing conditions of supervised release and state its reasons for selecting
particular conditions; the failure to do so may be reversible error. Although the Seventh Circuit found
no error in the terms of imprisonment imposed by the district courts in the consolidated cases

1

Lewis’ objections to the PSR Guidelines calculations were withdrawn at the sentencing hearing. See Doc. 439, at
p. 7

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considered in Thompson, it vacated the sentences in those cases and remanded for full resentencing.
Consistent with Thompson, Lewis’ case was remanded for resentencing (Doc. 531).
The Court resentenced Lewis on September 9, 2016 to the same term of imprisonment,
supervised release, restitution, and special assessment as in his original sentence (Docs. 628, 643).
Lewis appealed, but subsequently dismissed his appeal following appellate counsel’s request to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). See Doc. 668.
In his § 2255 motion currently before the Court, Lewis challenges the calculation of his offense
level and asserts that his sentence exceeded the “maximum by law because of improperly assigned
prior convictions.” Lewis also maintains that he was wrongly convicted and that his due process rights
were violated by the Court “seizing money not part of the crime.”
Standard of Review
An action brought under 28 U.S.C. § 2255 is an attempt to collaterally attack a sentence outside
of the traditional avenue of appeal. Relief under § 2255 “is available only in extraordinary situations,”
requiring an error of constitutional or jurisdictional magnitude, or other fundamental defect that
resulted in a complete miscarriage of justice. Blake v. United States, 723 F.3d 870, 878 (7th Cir. 2013).
Section 2255 cannot be employed as a substitute for a direct appeal or to re-litigate issues decided on
direct appeal. Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
The district court is not required to hold an evidentiary hearing if “…the motion, files, and
records of the case conclusively show that the prisoner is entitled to no relief.” Cooper v. United States,
378 F.3d 638, 641-642 (citing United States v. Kovic, 830 F. 2d 680 (7th Cir. 1987)). Based on its
review of the filings, this Court concludes that the issues in this case can be resolved on the existing
record and an evidentiary hearing is not necessary.
Discussion
“A defendant may validly waive both his right to a direct appeal and his right to collateral
review under § 2255 as part of his plea agreement.” Keller v. United States, 657 F.3d 675, 681 (7th
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Cir. 2011); see also Solano v. United States, 812 F.3d 573, 577 (7th Cir. 2016). Such waivers are
upheld and enforced except in cases in which (1) the plea agreement was involuntary; (2) the district
court relied on a constitutionally impermissible factor (such as race); (3) the sentence exceeded the
statutory maximum; or (4) the defendant claims ineffective assistance of counsel in relation to the
negotiation of the plea agreement. Keller, 657 F.3d at 681; Gaylord v. United States, 829 F.3d 500,
505 (7th Cir. 2016). Both statutory and constitutional rights can be waived in a plea agreement. United
States v. Woolley, 123 F.3d 627, 631–32 (7th Cir. 1997).
Here, the record establishes that Lewis knowingly and voluntarily entered into the plea
agreement and waived the right to appeal his sentence. After finding Lewis competent to enter a plea
of guilty, the Court cautioned and examined Lewis under oath pursuant to Rule 11. Lewis clearly and
unequivocally stated that he understood the terms of the plea agreement, that he discussed these terms
with his counsel, and that he was satisfied with his counsel’s assistance. He specifically acknowledged
that he understood and assented to the terms of his waiver of the right to a direct appeal or to filing of
a § 2255 motion. He does not claim that a waiver exception applies and there is no evidence supporting
such a finding. Thus, Lewis has waived his right to collaterally attack his sentence.
Even if Lewis had not voluntarily waived his right collateral review, his arguments related to
the calculation of his offense level and sentencing range are procedurally defaulted because he did not
raise these claims on direct appeal. “Any claim that could have been raised originally in the trial court
and then on direct appeal that is raised for the first time on collateral review is procedurally defaulted.”
Delatorre v. United States, 847 F.3d 837, 843 (7th Cir. 2017). The only challenge Lewis made on
direct appeal related to the conditions of his supervised release.
For the foregoing reasons, Lewis’ Petition is DENIED and this action is DISMISSED with
prejudice. All pending motions are TERMINATED as MOOT. The Clerk of Court is DIRECTED
to enter judgment accordingly.

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Certificate of Appealability
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. MillerEl 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. Id. at 336; White v. United
States, 745 F.3d 834, 835 (7th Cir. 2014). Under this standard, Ewing 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)).
For the foregoing reasons, this Court has determined that Lewis has not stated any grounds for
relief under § 2255 and that reasonable jurists would not find that conclusion debatable or wrong.
Thus, Lewis has not made a “substantial showing of the denial of a constitutional right,” and a
certificate of appealability will not be issued.

IT IS SO ORDERED.
DATED: October 26, 2020

STACI M. YANDLE
United States District Judge

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