Hudson v. USA
Filing
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OPINION AND ORDER DENYING Motion to Vacate, Set Aside or Correct Sentence (2255) because it doesn't state a constitutional error addressable under 28:2255. Signed by Judge Robert L Miller, Jr on 8/7/12. (smp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
IRVIN S. HUDSON,
PETITIONER,
VS.
UNITED STATES OF AMERICA,
RESPONDENT.
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CAUSE NO. 3:12-CV-384-RLM
ARISING OUT OF 3:09-CR-53-RLM
OPINION and ORDER
Irvin S. Hudson pleaded guilty to one count of being a felon in possession
of a firearm (in violation of 18 U.S.C. § 922(g)(1)) and one count of possession of
stolen firearms (in violation of 18 U.S.C. § 922(j)). He entered this plea without
a plea agreement, the court accepted it, and the court sentenced Mr. Hudson to
72 months on each of the counts to be served concurrently. Mr. Hudson has
filed a motion under 28 U.S.C. § 2255 challenging how the court calculated his
sentencing guidelines range.
Mr. Hudson stole four firearms one day and then sold them the next day
to an acquaintance for $40. The federal charges – possessing these firearms as
a felon and selling stolen firearms – reflected just his “day two” activity. A
separate state court case, which proceeded after the federal case, addressed
the “day one” incident, that is, the original theft of the firearms. This court
handed down Mr. Hudson’s sentence before hearing whether Mr. Hudson was
convicted in Cass County, Indiana of the theft and before that court decided its
sentence. As part of the guidelines calculation, and in addition to other
guidelines calculations, the court added four levels to the base offense level
because Mr. Hudson possessed the weapons in connection with another felony
offense, U.S.S.G. § 2K2.1(b)(6) (2008 edition), and two more levels because the
firearms were stolen, § 2K2.1(b)(4)(A). Mr. Hudson now asserts that this was an
error; he says that because he was separately punished for the theft in state
court and because the federal sentence doesn’t take the then-future state
sentence into account (for instance, by allowing the sentences to be served
concurrently) (see U.S.S.G. § 5G1.3), he has been punished twice for the same
action.
Mr. Hudson didn’t raise this as an objection during the sentencing
process and didn’t raise this claim on direct appeal. Section 2255 requires a
petitioner show that his sentence is in violation of the constitution or laws of
the United States, and this is a bar much higher than just showing that the
court made a mistake. See, e.g. Narvaez v. United States, 674 F.3d 621, 627
(7th Cir. 2011) (“We have recognized that sentencing errors are generally not
cognizable on collateral review, especially when such errors can be raised on
direct appeal.”); Scott v. United States, 997 F.2d 340, 342–43 (7th Cir. 1993)
(“Persons who believe that district judges have not enforced all of their rights
must appeal; having bypassed that opportunity they may not demand belated
review.”). The court needn’t address whether Mr. Hudson has properly alleged a
constitutional error because he hasn’t shown any error at all.
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Mr. Hudson misreads the court’s guidelines calculations when he claims
that the four-level enhancement for committing the felon-in-possession crime
in conjunction with another felony is double-counting his state crime. When
the court assessed four levels for possessing the firearms in connection with
another felony, the other felony was the sale of the stolen firearms (that is, the
charge in count 2), not the theft charge, which then pended in state court. In
many cases, a court finds relevant conduct applicable when the conduct has
been charged in another court, hasn’t been charged at all, or even when the
defendant has been acquitted. United States v. Valenti, 121 F.3d 327, 334 (7th
Cir. 1997) (“It is well established that in determining a defendant's sentence a
court may consider a broad range of information, including uncharged crimes,
crimes where charges have been dismissed, and crimes for which the
defendant has been acquitted.”). In Mr. Hudson’s case, the court didn’t need to
put the theft of the guns into one of those categories; it found he possessed the
firearms as a felon in conjunction with the crime to which he pleaded guilty:
possessing stolen firearms. Mr. Hudson pleaded guilty to that relevant conduct,
namely count 2. The court grouped the two charges, U.S.S.G. § 3D1.2(d),
started with the base offense level for felon in possession and added (among
other findings) the four levels for the count 2 conduct.
Mr. Hudson says that he was punished twice when the court added
those four levels and two more levels because the firearms he possessed as a
felon were stolen and he separately faced a later state court charge for stealing
those same guns. Mr. Hudson is correct that the court didn’t order the federal
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sentence to be concurrent to a possible future state sentence and that the
court didn’t reduce the federal sentence in anticipation of the state sentence as
§ 5G1.3 allows. See also 18 U.S.C. § 3584 (defining the court’s power in issuing
concurrent and consecutive sentences). Guidelines section 5G1.3 only
recommends the adjustment or concurrent sentence where the court used the
separately sentenced state crime as relevant conduct to enhance the federal
sentence, which wasn’t what happened here. The Indiana crimes of burglary,
theft, and trespass are different from the federal crimes of felon in possession
and possession of stolen guns. Furthermore, Mr. Hudson hasn’t pointed out
exactly where the court erred. When the court sentenced Mr. Hudson, the
Indiana court hadn’t yet convicted him or sentenced him for the theft of the
weapons. At that moment, there was no state sentence that the court could
take into account under U.S.S.G. § 5G1.3’s instruction. The court’s decision at
the time lacked any error. Setser v. United States, 132 S.Ct. 1463, 1472 (2012)
(“The reasonableness standard we apply in reviewing federal sentences asks
whether the district court abused its discretion.” (citing Gall v. United States,
552 U.S. 38, 45-46 (2007)). The district court’s sentence is examined for a flaw
at the time it was issued, even if some later event sheds a different light on it.
Setser v. United States, 132 S.Ct. at 1473.
Mr. Hudson points out that, in a footnote in Setser v. United States, the
Supreme Court said, “Of course, a district court should exercise the power to
impose anticipatory consecutive (or concurrent) sentences intelligently. In some
situations, a district court may have inadequate information and may forbear,
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but in other situations, that will not be the case.” 132 S.Ct. at 1472, n.6. This
court noted in Mr. Hudson’s sentencing memorandum that, “Mr. Hudson faces
charges in Cass County, Indiana, for burglary, theft, and trespass.” In other
words, the court anticipated that Mr. Hudson could face a separate sentence
for the “day one” crimes, but the court didn’t otherwise weigh in on whether the
resulting state sentence should be served consecutively or concurrently just
because the court knew state charges were pending. Without knowing whether
Mr. Hudson would be convicted in the state court or what factors the state
court would use in sentencing him, an opinion on whether the sentences were
to be concurrent or consecutive was premature. The court had inadequate
information and forbore. See Setser v. United States, 132 S.Ct. at 1472, n.6.
Mr. Hudson has shown no error, constitutional or not, in this court’s
assessment of a sentence while state charges pended. In Stetser v. United
States, 132 S.Ct. at 1473, the Supreme Court upheld a district court’s decision
to make the federal sentence consecutive to a future, anticipated state court
sentence. This court didn’t even go that far, leaving open the state court’s
discretion whether it wanted to take into account the federal sentence when it
later handed down Mr. Hudson’s state sentence for the crimes he committed
the day before he committed the federal crimes.
The court has the authority to screen Mr. Hudson’s filing to see if it
contains an actionable claim. RULES GOVERNING SECTION 2255 PROCEEDINGS
THE
FOR
UNITED STATES DISTRICT COURTS 4(b) and 5(a). Mr. Hudson hasn’t shown an
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error in the court’s sentence calculation. A response from the government is
unnecessary; the court can address the claim summarily.
Mr. Hudson’s claim that the court improperly calculated his guidelines
range is DENIED because it doesn’t state a constitutional error addressable
under 28 U.S.C. § 2255.
SO ORDERED.
ENTERED: August 7, 2012
/s/ Robert L. Miller, Jr.
Judge
United States District Court
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