Jennings v. USA
Filing
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OPINION AND ORDER: DENYING Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Robert L Miller, Jr on 5/12/11. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEITH ABDUL JENNINGS,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent
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CAUSE NO. 3:09-CV-427 RLM
(arising out of 3:06-CR-71(01) RLM)
OPINION AND ORDER
After the court of appeals affirmed his conviction and 360-month sentence
for possession with intent to distribute crack cocaine, United States v. Jennings,
544 F.3d 815 (7th Cir. 2008), Keith Jennings filed (and then amended) a petition
under 28 U.S.C. § 2255. Mr. Jennings contends the court erred at sentencing by
treating a prior conviction as a crime of violence, and that his attorney provided
ineffective assistance of counsel by failing to convey a plea offer from the
government and by failing to argue on appeal that the court treated the guideline
range as presumptively correct. No hearing is needed to resolve the issues. For the
reasons that follow, the court denies Mr. Jennings’s petition.
The court of appeals set forth the case’s underlying facts, and the court
needn’t repeat them here.
Mr. Jennings’s first effective assistance of counsel claim is effectively
defeated by the affidavits of the trial prosecutor and trial counsel that the
government made no plea offer that could have been conveyed to Mr. Jennings.
Mr. Jennings sought more time to respond to those affidavits, but didn’t do so.
Without any indication that there was a plea offer to convey, Mr. Jennings can’t
demonstrate ineffective assistance of counsel in the failure to convey it.
At the sentencing, the court found that Mr. Jennings was a career offender
based in part (the other part was Mr. Jennings’s seven-year federal sentence for
possession with intent to distribute crack cocaine) on his earlier conviction for
resisting law enforcement in a manner that created a substantial risk of bodily
injury to another person, a class D felony under Indiana law. Mr. Jennings points
to a line of cases decided under United States v. Begay, 553 U.S. 137 (2008), to
argue that as the law is understood today, that Indiana conviction wouldn’t be
deemed a “crime of violence” for sentencing purposes, so he wouldn’t be a career
offender.
This argument can’t succeed. When the court of appeals decided Mr.
Jennings’s appeal, it affirmed this court’s holding that the prior conviction was a
crime of violence even in light of Begay. The principal case on which Mr. Jennings
constructs his argument — United States v. Smith, 544 F.3d 781 (7th Cir. 2008)
— already had been decided when the court of appeals affirmed Mr. Jennings’s
conviction. The law’s development since then doesn’t point unerringly to the
conclusion that today’s law is not what the court of appeals said it was in 2008.
More importantly, the law of the case doctrine prevents this court from reevaluating what the court of appeals held in the direct appeal. Varela v. United
States, 481 F.3d 932, 936 (7th Cir. 2007) (“Issues that were raised on direct
appeal may not be reconsidered on a § 2255 motion absent changed
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circumstances.”); Peoples v. United States, 403 F.3d 844, 847 (7th Cir. 2005) (“an
initial federal determination controls in subsequent rounds of review if ‘(1) the
same ground presented in the subsequent application was determined adversely
to the applicant on the prior application, (2) the prior determination was on the
merits, and (3) the ends of justice would not be served by reaching the merits of
the subsequent application.’” (quoting Sanders v. United States, 373 U.S. 1, 15
(1963)).
Mr. Jennings’s strongest argument is that the sentencing court viewed the
sentencing guidelines’ recommendation as presumptively reasonable, which is
something we now know a sentencing court can’t do. Rita v. United States, 551
U.S. 338 (2007). Still, Mr. Jennings isn’t entitled to relief on this ground.
As the government notes, Rita has never been held to be retroactive so as
to apply in a collateral attack on a sentence. Rita was decided while Mr.
Jennings’s case was on direct appeal, and so would have applied in his direct
appeal, see, e.g., United States v. Schmitt, 495 F.3d 860, 864-865 (7th Cir. 2007),
but Mr. Jennings doesn’t seem to have raised the issue then.
But that isn’t exactly what Mr. Jennings is trying to do. His argument is one
of ineffective assistance of counsel: that his appellate counsel should have raised
Rita on direct appeal. Failure to raise such an issue might amount to ineffective
assistance of counsel. See, e.g., Stallings v. United States, 536 F.3d 624 (7th Cir.
2008) (appellate counsel’s performance deficient for failing to argue for limited
remand after guidelines held to be discretionary).
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“To prevail on an ineffective assistance of counsel claim, Lathrop must show
that trial counsel's performance was deficient and that the deficient performance
prejudiced his defense.” United States v. Lathrop, 634 F.3d 931, 937 (7th Cir.
2011) (citing Strickland v. Washington, 466 U.S. 668, 689-692 (1984)).
[W]e do not as a rule second-guess counsel's strategy. Instead,
judicial scrutiny of a lawyer's performance must be highly deferential,
and courts assessing counsel's performance generally presume that
decisions at trial fall within the wide range of reasonable professional
assistance. The law does not require counsel to raise every available
nonfrivolous defense. Moreover, even if a lawyer's decision to omit a
defense falls below this forgiving performance standard, Strickland's
requirement that prejudice be shown means that the defendant must
make a case that there is a reasonable probability—one sufficient to
undermine our confidence in the outcome—that the result of the
proceeding would have been different if the defense had been
presented.
Kerr v. Thurmer,
F.3d
, 2011 WL 1105622, at *3 (7th Cir. Mar. 28, 2011)
(quotations and citations omitted). A court’s “review of the attorney's performance
is ‘highly deferential’ and reflects ‘a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.’” Koons v. United
States,
F.3d
, 2011 WL 1584998, at 3 (7th Cir. Apr. 28, 2011) (quoting Davis
v. Lambert, 388 F.3d 1052, 1059 (7th Cir.2004)).
When, as in this case, a petitioner claims ineffective assistance for failing
to raise a potential issue on appeal, the two prongs of the effectiveness of counsel
test come together: if the petitioner wasn’t harmed by the omission of the issue,
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the failure to raise the issue can’t be said to have been deficient performance. And
the sentencing memorandum in Mr. Jennings’s case makes clear that he wasn’t
harmed by his attorney’s failure to argue Rita on appeal.
Had Mr. Jennings’s counsel raised the issue on appeal, a statement in the
sentencing memorandum (“the guidelines sentence is rebuttably presumed
reasonable”) might have persuaded the court of appeals that the sentencing court
applied a forbidden presumption of reasonableness. Or he might not have
persuaded the appellate court: the sentencing transcript contains no reference to
such a presumption, and the remarks in that transcript show a search for a
reasonable sentence, not placement of a burden on Mr. Jennings to justify a
sentence outside the recommended range. The sentencing court said this:
The Sentencing Guidelines are merely advisory. It is my task to select
a reasonable sentence from between 10 years, which is the statutory
minimum, and life. And a reasonable sentence is defined by the
statute as one that is sufficient but not greater than necessary to
satisfy the purposes of the sentencing statute. And frankly, as I look
through the sentencing statute, I can’t find anything terribly
mitigating.
Transcript of February 27, 2007 sentencing hearing, at 17-18.
A review of the full sentencing transcript discloses no remark that wouldn’t
be at home in a sentencing hearing today, three and a half years after the
Supreme Court decided Rita. The boilerplate reference in the sentencing
memorandum is the only suggestion that the sentencing court treated the
guidelines as presumptively reasonable.
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On the other hand, a written sentencing memorandum trumps the
sentencing judge’s oral comments, United States v. Mendoza, 510 F.3d 749, 754755 (7th Cir. 2007) (written statement trumped oral statement that guidelines are
presumptively correct), and it might be difficult for an appellate court to identify
the fine line between treating the guidelines as presumptively correct, which is
prohibited, and giving “respectful consideration to the judgment embodied in the
guideline range,” which is required. United States v. Higdon, 531 F.3d 561, 562
(7th Cir. 2008).
But the sentencing transcript and the sentencing memorandum both make
clear that the court’s search for a reasonable sentence — and the court stated that
it could impose any reasonable sentence from ten years to life, Sent. Tr. at 17,
Sent Memo. at 7 [Doc. No. 61] — would have resulted in a sentence longer (not
less) than 360 months had the government not recommended the low end of the
guidelines. The guideline range didn’t increase Mr. Jennings’s sentence.
Further, the sentencing transcript and the sentencing memorandum make
clear that, despite the memorandum’s recital of a now-outdated principle, Mr.
Jennings received the sentencing process contemplated by Rita:
The sentencing judge, as a matter of process, will normally begin by
considering the presentence report and its interpretation of the
Guidelines. 18 U.S.C. § 3552(a); Fed. Rule Crim. Proc. 32. He may
hear arguments by prosecution or defense that the Guidelines
sentence should not apply, perhaps because (as the Guidelines
themselves foresee) the case at hand falls outside the “heartland” to
which the Commission intends individual Guidelines to apply, USSG
§ 5K2.0, perhaps because the Guidelines sentence itself fails properly
to reflect § 3553(a) considerations, or perhaps because the case
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warrants a different sentence regardless. See Rule 32(f). Thus, the
sentencing court subjects the defendant's sentence to the thorough
adversarial testing contemplated by federal sentencing procedure. See
Rules 32(f), (h), (i)(C) and (i)(D); see also Burns v. United States, 501
U.S. 129, 136, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991) (recognizing
importance of notice and meaningful opportunity to be heard at
sentencing). In determining the merits of these arguments, the
sentencing court does not enjoy the benefit of a legal presumption
that the Guidelines sentence should apply.
Rita v. United States, 551 U.S. at 351. The Supreme Court further explained the
proper, non-presumptive sentencing process in a companion decision:
As a matter of administration and to secure nationwide consistency,
the Guidelines should be the starting point and the initial
benchmark. The Guidelines are not the only consideration, however.
Accordingly, after giving both parties an opportunity to argue for
whatever sentence they deem appropriate, the district judge should
then consider all of the § 3553(a) factors to determine whether they
support the sentence requested by a party. In so doing, he may not
presume that the Guidelines range is reasonable. He must make an
individualized assessment based on the facts presented.
Gall v. United States, 552 U.S. 38, 49-50 (2007) (citation omitted).
After calculating Mr. Jennings’s guideline range as 360 months to life (as
a career offender), the court noted that the calculation “is, of course, only the first
step in determining a reasonable sentence,” Sent. Tr. at 15, and invited the
parties’ arguments. The government asked for a 360-month sentence “given the
amount of cocaine involved in this case and the record as a whole . . ..” Sent. Tr.
at 15. Mr. Jennings’s counsel argued for a sentence below that range in light of
Mr. Jennings’s age and the age of the conviction that launched him into career
offender status. Sent. Tr. at 15-16. Mr. Jennings allocuted, denying his guilt and
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concluding: “I know you ain’t bound to the Guidelines, I just ask you do the best
you can for me.” Sent. Tr. at 16-17.
The court started by explaining that the guidelines are “merely advisory,”
and that the court’s duty was “to select a reasonable sentence from between 10
years, which is the statutory minimum, and life. And a reasonable sentence is
defined by the statute as one that is sufficient but not greater than necessary to
satisfy the purposes of the sentencing statute. And, frankly, as I look through the
sentencing statute, I can’t find anything terribly mitigating.” Sent. Tr. at 17-18.
The court went on to discuss the nature and circumstances of the crime, see 18
U.S.C. § 3553(a)(1), including that the crack quantity was two and a half times
what was necessary to trigger the ten-year statutory minimum and that it was
more likely than not that Mr. Jennings was supplying a crack house. Sent. Tr. at
18; Sent. Memo. at 5. The court discussed Mr. Jennings’s history and
characteristics, see 18 U.S.C. § 3553(a)(1), including that at age 31, he had three
prior felony convictions and six misdemeanor convictions, and that he had
committed the crime of conviction about six weeks after being placed on
supervised release for the same sort of crime. Sent. Tr. at 18-19; Sent. Memo. at
6.
The court discussed the need for the sentence to reflect the crime’s
seriousness and to promote respect for the law, see 18 U.S.C. § 3553(a)(2)(A),
concluding that the guidelines provided the best measurement of those interests
with respect to Mr. Jennings. Sent. Tr. at 19; Sent. Memo. at 6. The court noted
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that the need to provide a just punishment, see 18 U.S.C. § 3553(a)(2)(A), was
heightened by Congress’s directive to the Sentencing Commission to see that
career offenders are sentenced at or near the maximum term — life imprisonment,
in Mr. Jennings’s case. Sent. Tr. at 19; Sent. Memo. at 6-7. The court noted that
a 30-year sentence ordinarily isn’t needed to deter the average drug dealer. Sent.
Tr. at 19-20; Sent. Memo. at 7; see 18 U.S.C. § 3553(a)(2)(B). The court found that
the risk of future crimes by Mr. Jennings presented “an unusually great need [for
the sentence] to protect the public.” Sent. Tr. at 20; Sent. Memo. at 7; see 18
U.S.C. § 3553(a)(2)(C). The court noted that while Mr. Jennings might benefit from
educational and vocational training, Sent. Memo. at 7; see 18 U.S.C. §
3553(a)(2)(D), that factor didn’t help “decide between a 10-year sentence, a 30year sentence, or life imprisonment.” Sent. Tr. at 20. The court again noted the
kinds of sentencing available (ten years to life), see 18 U.S.C. § 3553(a)(3), that
“the Guidelines recommend a sentencing range of 30 years to life imprisonment,”
see 18 U.S.C. § 3553(a)(4)(A), that no policy statements from the Sentencing
Commission applied, see 18 U.S.C. § 3553(a)(5), that the guidelines provided the
best hope for national avoidance of sentencing disparities, see 18 U.S.C. §
3553(a)(6), and that restitution wasn’t an issue, see 18 U.S.C. § 3553(a)(7). Sent.
Tr. at 20-21; Sent. Memo. at 7-8.
After addressing each of the statutory sentencing factors in the context of
Mr. Jennings’s case, the court concluded that no sentence below the advisory
range would be reasonable. Sent. Tr. at 21. The court went on: “I think there are
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factors that would favor a sentence longer than 30 years, and I think it may be
that Mr. Jennings is fortunate that the government does not seek a sentence in
excess of that given the immediacy with which Mr. Jennings committed the crime
again.” Sent. Tr. at 21-22. In the sentencing memorandum, the court explained
why a sentence of more than 360 months might be reasonable:
When Mr. Jennings was sentenced to 84 months’ imprisonment in
2001 for possession with intent to distribute crack cocaine, the
government recommended that sentence — one at the low end of the
guideline range — as part of the plea agreement. The court expressed
concern about whether a low-end sentence was sufficient in light of
Mr. Jennings’ criminal history, but concluded that because an
84-months sentence was much longer than any prior sentence Mr.
Jennings had received, it might be enough to get Mr. Jennings to
change his ways. That conclusion was wrong. Barely six weeks after
being released from that sentence for possession with intent to
distribute crack, Mr. Jennings was trying again to distribute crack
cocaine. And unlike most crack defendants that pass through this
courtroom, Mr. Jennings was not trying to feed his own crack
addiction.
Sent. Memo. at 8-9. Nonetheless, the court found the 360-month sentence sought
by the government to be reasonable. Sent. Tr. at 22.
Given all this, it would be very difficult to conclude that Mr. Jennings’s
appellate counsel provided ineffective assistance by focusing on the substantial
issue of whether Mr. Jennings’s conviction for resisting law enforcement made him
a career offender rather than on the stray boilerplate in the sentencing
memorandum, given the deference owed to counsel’s decisions and the general
presumption that trial counsel’s decisions fall within the wide range of
professional competence,” Kerr v. Thurmer,
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F.3d
, 2011 WL 1105622, at *3
(7th Cir. Mar. 28, 2011). More importantly, Mr. Jennings can’t show any prejudice
from that choice of issues to present on appeal. The court’s explanation of its
reasoning behind the sentence makes clear that Mr. Jennings got a 30-year
sentence, not because of any presumption of reasonableness accorded to the
sentencing guidelines, but rather because the government didn’t ask for anything
longer than 30 years.
For all of these reasons, the court DENIES the petition for relief under 28
U.S.C. § 2255 as amended [Doc. Nos. 82, 87].
ENTERED:
May 12, 2011
/s/ Robert L. Miller, Jr.
Judge
United States District Court
cc: K. Jennings
W. Grimmer/J. Maciejczyk - AUSA
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