Jones v. USA

Filing 2

OPINION AND ORDER: The Court DENIES Mr. Jones' motion for relief under § 2255, and DENIES the issuance of a certificate of appealability. Signed by Judge Jon E DeGuilio on 2/16/2016. (cc: Jones)(rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNITED STATES OF AMERICA
v.
LARRY JONES

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Case No. 3:14-CR-002 JD
3:15-CV-058 JD

OPINION AND ORDER
Defendant Larry Jones pled guilty to knowingly possessing a stolen firearm, and received
a sentence of 100 months of imprisonment. After the judgment became final, he filed a motion to
vacate his conviction and sentence under 28 U.S.C. § 2255, arguing that his attorney provided
ineffective assistance of counsel by failing to file a motion to suppress, failing to properly
represent him at sentencing, and failing to file a notice of appeal. That motion is now fully
briefed. For the reasons that follow, the Court finds that Mr. Jones is not entitled to relief under
§ 2255 under these circumstances, so Mr. Jones’ motion must be denied.
I. FACTUAL BACKGROUND
Mr. Jones was initially charged in a three-count indictment with possession of heroin
with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a
firearm having previously been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).
[Case No. 3:13-CR-92, DE 1]. Prior to the indictment, law enforcement officers had conducted
multiple controlled buys of heroin from Mr. Jones at his residence. They then executed a search
warrant at his property, during which they discovered various quantities of heroin and other
paraphernalia, both in his residence and in his garage. They also discovered two firearms, one of
which was found in a trashcan in the garage, next to a bag that contained ten or fifteen grams of
heroin, baggies, and a scale. That firearm had been reported stolen.

Mr. Jones ultimately entered a plea agreement by which he agreed to plead guilty to an
information charging him with knowingly possessing a stolen firearm, in violation of 18 U.S.C.
§ 922(j). [Case No. 3:14-CR-2, DE 1, 2]. Notably, given Mr. Jones’ previous convictions, that
offense cannot trigger the career offender guideline, nor can it expose a defendant to mandatory
minimum penalties under the Armed Career Criminal Act, which only applies to convictions
under § 922(g). As part of his plea agreement, Mr. Jones also waived his right to appeal or
contest his conviction and sentence to any court on any ground, including in a proceeding under
§ 2255. In return, the government agreed to dismiss each of the three counts in the original
indictment. As a result, instead of facing charges that carried mandatory minimum terms and
sentences of up to life imprisonment, Mr. Jones pled guilty to a single charge that exposed him to
up to ten years of imprisonment. The magistrate judge conducted a change of plea hearing with
Mr. Jones on January 24, 2014, after which the Court adopted the report and recommendation
and accepted Mr. Jones’ guilty plea. [DE 6, 9, 39].
At sentencing, Mr. Jones had a base offense level of 24 under the Sentencing Guidelines,
as he had two prior convictions for controlled substance offenses. U.S.S.G. § 2K2.1(a)(2). He
then received enhancements for possessing a stolen firearm, § 2K2.1(b)(4), and for possessing a
firearm in connection with another felony offense, § 2K2.1(b)(6)(B). After receiving a reduction
for acceptance of responsibility, § 3E1.1, Mr. Jones’ total offense level was 27. Mr. Jones’
criminal history score of eight placed him in criminal history category IV. This produced an
advisory sentencing range of 100 to 125 months, which was then limited to a range of 100 to 120
months due to the statutory maximum. Mr. Jones’ attorney objected to the two enhancements,
both prior to and during the sentencing hearing. After accepting evidence and argument from the
parties on those enhancements, the Court overruled the objections and applied the enhancements.

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Finally, after considering the factors under 18 U.S.C. § 3553(a), the Court sentenced Mr. Jones
to a term of 100 months of imprisonment, at the bottom end of the advisory sentencing range.
The Court entered the judgment on May 19, 2014. [DE 24].
Mr. Jones did not file a notice of appeal within 14 days, so his conviction became final.
On January 15, 2015, Mr. Jones filed a document entitled “Appeal under 28 U.S.C. 2255.” [DE
26]. Shortly thereafter, Mr. Jones filed a formal notice of appeal from his conviction, [DE 28], so
the Court held the motion under § 2255 in abeyance pending the resolution of that appeal. The
Seventh Circuit eventually dismissed Mr. Jones’ appeal as untimely [DE 35], at which point Mr.
Jones confirmed that he wished for his previous filing to be construed as a motion under § 2255.
That motion has now been fully briefed, and is ripe for adjudication.
II. STANDARD OF REVIEW
Section 2255(a) of Title 28 provides that a federal prisoner “claiming the right to be
released upon the ground that the sentence was imposed in violation of the Constitution or laws
of the United States . . . may move the court which imposed the sentence to vacate, set aside or
correct the sentence.” 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255
relief is appropriate only for “an error of law that is jurisdictional, constitutional, or constitutes a
fundamental defect which inherently results in a complete miscarriage of justice.” Harris v.
United States, 366 F.3d 593, 594 (7th Cir. 2004). Further, a “Section 2255 motion is neither a
recapitulation of nor a substitute for a direct appeal.” Olmstead v. United States, 55 F.3d 316,
319 (7th Cir. 1995); Bousley v. United States, 523 U.S. 614, 621 (1998) (stating that habeas
review “will not be allowed to do service for an appeal”). Relief under § 2255 is extraordinary
because it seeks to reopen the criminal process to a person who has already had an opportunity of
full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v.
United States, 467 F.3d 1063, 1068 (7th Cir. 2006)).
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III. DISCUSSION
In support of his claim for relief under § 2255, Mr. Jones asserts that his attorney was
ineffective in multiple respects, including by failing to file a motion to suppress evidence, failing
to object at sentencing to certain enhancements under the Sentencing Guidelines, and failing to
file a notice of appeal upon his request. In response, the government argues that Mr. Jones
waived his right to file a motion under § 2255, and that this waiver bars his claims. It further
argues that his claims of ineffective assistance of counsel would fail on their merits. The Court
first addresses the enforceability of the collateral review waiver. Because an attorney’s failure to
file a motion to suppress evidence can constitute ineffective assistance in connection with a plea,
which can void a waiver, the Court also considers that claim in the context of the waiver. Though
the Court finds that the waiver is enforceable and precludes Mr. Jones’ other claims, it also
considers those claims on their merits and concludes that they would fail even absent the
collateral review waiver.
A.

The Waiver in Mr. Jones’ Plea Agreement is Enforceable
The government argues that Mr. Jones’ motion should be dismissed because he waived

his right to file such a motion in his plea agreement. Specifically, paragraph 9(e) of Mr. Jones’
plea agreement states:
I understand that the law gives a convicted person the right to appeal the conviction
and the sentence imposed; I also understand that no one can predict the precise
sentence that will be imposed, and that the Court has jurisdiction and authority to
impose any sentence within the statutory maximum set for my offense(s) as set
forth in this Plea Agreement; with this understanding and in consideration of the
government’s entry into this Plea Agreement;
I expressly waive my right to appeal or to contest my conviction and my
sentence or the manner in which my conviction or my sentence was determined
or imposed, to any Court on any ground, including any claim of ineffective
assistance of counsel unless the claimed ineffective assistance of counsel relates
directly to this waiver or its negotiation, including any appeal under Title 18,
United States Code, Section 3742, or any post-conviction proceeding, including
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but not limited to, a proceeding under Title 28, United States Code, Section
2255[.]
[DE 2, p. 4 (bold in original)].
“A defendant may validly waive both his right to a direct appeal and his right to collateral
review under § 2255 as a part of his plea agreement.” Keller v. United States, 657 F.3d 675, 681
(7th Cir. 2011). The Seventh Circuit has held that “waivers are enforceable as a general rule; the
right to mount a collateral attack pursuant to § 2255 survives only with respect to those discrete
claims which relate directly to the negotiation of the waiver.” Jones v. United States, 167 F.3d
1142, 1145 (7th Cir. 1999). Thus, a defendant who has waived his right to file a motion under
§ 2255 must typically establish either that the waiver (or the plea agreement of which it is a part)
was not entered knowingly and voluntarily, or that the defendant received ineffective assistance
of counsel in connection with the plea agreement. Id.; Keller, 657 F.3d at 681 (“We have
generally upheld and enforced these waivers, with limited exceptions for cases in which the plea
agreement was involuntary . . . or the defendant claims ineffective assistance of counsel in
connection with the negotiation of the plea agreement.”). Mr. Jones presents arguments on both
fronts, and the Court considers them in turn.
First, in arguing that this waiver should not be enforced, Mr. Jones argues that the mere
fact that he has now filed a motion under § 2255 shows that he must not have knowingly waived
his right to do so. He thus requests a hearing on whether he knowingly entered this waiver. Such
a conclusory and circular allegation is insufficient to warrant a hearing, though. Moreover, the
Court need not conduct a new hearing on that topic, as it has already held a hearing at which Mr.
Jones testified under oath that he understood this waiver. During Mr. Jones’ change of plea
hearing on January 24, 2014, the magistrate judge explained the waiver to Mr. Jones and
confirmed that he understood it:
5

THE COURT: Do you have the plea? I want to go over just a few points -- just to
make sure -- because they are important.
The first one I wish to draw to your attention is found on page 4, subparagraph 9(e),
the second paragraph, about the middle of the page.
That paragraph begins: I expressly waive my right to appeal or to contest my
conviction and my sentence or the manner in which my conviction or my sentence
was determined or imposed, to any Court on any ground, including any claim of
ineffective assistance of counsel.
Mr. Jones, earlier I said if you went to trial and if you were convicted at trial, you
have the right to appeal that conviction, with the assistance of counsel, to the United
States Court of Appeals.
Well, what you’re doing in your Plea Agreement in this provision I just read to you
is you are giving up that right.
So, as it says, you will not now be able to appeal or to contest your conviction or
your sentence to any court on any ground. Do you understand that?
THE DEFENDANT: Yes.
[DE 39 p. 14 (italics in original)]. The magistrate judge also confirmed with Mr. Jones that he
had read his plea agreement, that he discussed it with his attorney, and that he understood it. [DE
39 p. 13].
Finally, at Mr. Jones’ sentencing hearing, where Mr. Jones was also under oath, the Court
again confirmed that Mr. Jones understood this waiver:
Mr. Jones, pursuant to paragraph 9(e) of your Plea Agreement, you have waived
your right to appeal or contest your conviction and sentence or the manner in which
your conviction and sentence were determined or imposed, to any court on any
ground, including any claim of ineffective assistance of counsel unless the claimed
ineffective assistance of counsel relates directly to this waiver or its negotiation.
Do you understand that waiver, sir?
THE DEFENDANT: Yes.
[DE 38 p. 46]. In sum, Mr. Jones was advised in his written plea agreement and during the
change of plea hearing that he was giving up his right to appeal or contest his conviction and
sentence, including through a motion under § 2255. Mr. Jones confirmed that he understood this
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and that he had discussed it with his attorney, and he proceeded to enter a plea of guilty. Then
again at sentencing, even after the Court imposed the sentence, Mr. Jones confirmed that he
understood this waiver. Accordingly, there is no need for the Court to hold an additional hearing
on this topic, as the record already conclusively establishes that Mr. Jones knowingly entered this
waiver.
Mr. Jones next argues that his plea was not knowing and voluntary because his attorney
had promised him a sentence of about 37 months, and that he accepted the plea agreement for
that reason. Again, however, this claim is squarely contradicted by Mr. Jones’ previous sworn
statements. To begin with, Mr. Jones acknowledged in his plea agreement that “no one can
predict the precise sentence that will be imposed,” and that “no predictions, promises or
representations have been made to [him] as to the specific sentence that will be imposed.” [DE 2
¶ 9(e), (j)]. The magistrate judge then discussed this topic with Mr. Jones at length during the
change of plea hearing:
THE COURT: Have you discussed the Sentencing Guidelines with Mr. Tuszynski?
THE DEFENDANT: Yes, I have.
THE COURT: I don’t know what he told you in particular -- I assume it is correct
-- but let me tell you what it is not. Whatever he told you, it is not official; it is not
final. It is his opinion.
We won’t know exactly or officially what your Guidelines are until the Court makes
that determination and that won’t occur until after the Court considers a Presentence
Report.
If I find your plea is appropriate today, I’m going to order the Probation Department
to prepare that Presentence Report and then they will look into the nature and
circumstances of your offense; your role in the offense; your prior criminal history
and various other factors, and they will then calculate what they think the
Guidelines are.
Now, both you and Mr. Tuszynski will be able to review that report so if there’s
something in there you don’t think is correct or, perhaps, something that is not in

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the report that they should have included or considered or maybe you think they’ve
just miscalculated the Guidelines, you can bring that to the Court’s attention.
And then at sentencing that’s when the Court will ultimately determine what your
Guidelines are. Okay?
THE DEFENDANT: Yes.
THE COURT: So all I’m saying is no matter what you have discussed with anybody
-- including your attorney -- about the Guidelines, it is just their opinion. We won’t
know until the Court decides, and that won’t occur until sentencing and after
consideration of the Presentence Report.
The second point is whatever the Court ultimately determines your Guidelines to
be, the Court doesn’t have to follow the Guidelines because they’re guidelines.
What I mean by that is they’re simply there to assist the Court to determine an
appropriate sentence.
The law allows the Court to either impose a more severe sentence than what the
Guidelines may recommend or less severe.
Okay?
THE DEFENDANT: Yeah.
[DE 39 p. 11–13]. Mr. Jones then expressly denied that he was pleading guilty based on any
promises:
Let me ask you now: Are there any promises that are causing you to plead guilty
today that are not contained in that written Plea Agreement?
THE DEFENDANT: No.
[DE 39 p. 14]. Finally, the magistrate judge reiterated these topics with Mr. Jones when he
discussed a paragraph of the plea agreement containing a non-binding recommendation:
That paragraph reads: I further understand that the Court is not bound by any of
these recommendations and that I am not entitled to withdraw this Guilty plea if
the Court decides not to accept these recommendations.
I want to explain what is happening here: In the preceding paragraph the United
States is agreeing to make certain recommendations, but that’s what they are -“recommendations” -- and, as this says, they are nonbinding on the Court, which
means the Court doesn’t have to follow them.

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So what that could mean to you is if you receive a sentence that is more severe than
what you thought you were going to get; more severe than maybe what your
attorney thought and told you; maybe more severe than what the Guidelines
recommend; even more severe than what the government may recommend to the
Court, you will not be able to withdraw your guilty plea as a result, nor, as we’ve
just discussed, will you be able to appeal.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Those two are important.
[DE 39 p. 15 (italics in original)].
After hearing all of these advisements, confirming he understood them, and confirming
that no promises had been made to him, Mr. Jones proceeded to enter a plea of guilty. Thus, the
Court cannot accept Mr. Jones’ assertion in his reply brief that his attorney promised him a
specific sentence and that he pled guilty for that reason. “[A] defendant is normally bound by the
representations he makes to a court during the [change of plea] colloquy. Justice would be illserved, and the utility of the Rule 11 colloquy would be undermined, by allowing [a defendant]
to renege on his representation under oath to the district court that there were no promises made
to him to induce his guilty plea.” Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010);
see also United States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005) (“[A] motion that can
succeed only if the defendant committed perjury at the plea proceedings may be rejected out of
hand unless the defendant has a compelling explanation for the contradiction.”). Mr. Jones has
offered no explanation for why his current claim contradicts his previous sworn statements, so
the Court relies on those sworn statements and finds that Mr. Jones was not promised any
specific sentence. And because the thorough plea colloquy confirms that Mr. Jones’ guilty plea
was knowing and voluntary, the Court finds that the plea agreement and the waiver contained
therein cannot be set aside on that basis.

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Next, Mr. Jones argues that his attorney was ineffective for failing to file a motion to
suppress. The government did not substantively respond to this argument, but a failure to move
to suppress evidence can constitute ineffective assistance of counsel in connection with the
negotiation of a plea agreement. United States v. Hurlow, 726 F.3d 958 (7th Cir. 2013). If
successful, such a claim can invalidate a plea agreement and its accompanying waiver, id., and
Mr. Jones’ plea agreement specifically preserved his ability to raise such a claim, so the Court
considers this claim on its merits. To prevail on a claim of ineffective assistance of counsel, a
defendant must first show that his attorney performed deficiently—that the representation was
incompetent and “fell below an objective standard of reasonableness.” Strickland v. Washington,
466 U.S. 668, 688 (1984); Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011). Second, a
defendant must show that “the deficient performance prejudiced the defense.” Strickland, 466
U.S. at 687. “When the claim of ineffective assistance is based on counsel’s failure to present a
motion to suppress,” the Seventh Circuit has “required that a defendant prove the motion was
meritorious.” United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005).
Mr. Jones argues that his attorney should have moved to suppress evidence found in a
search of his garage, on the basis that that search was outside the scope of the search warrant.
The warrant in question stated that probable cause existed to believe that heroin and other
evidence was “Located and concealed on the following described premises: 809 E. Donald St.,
South Bend, IN.” [DE 44-1]. The warrant then described the property, including by noting that it
included a “blue, one story single family residence,” but the description did not specifically
mention the garage. [Id.] The warrant then concluded by stating, “YOU ARE THEREFORE
COMMANDED, . . . to enter into or upon the premise described herein, including each and

10

every room therein contained, any and all out buildings and vehicles on the property, and
diligently search for said items described herein . . . .” [Id. (italics added)].
The Fourth Amendment requires that a search warrant contain a description of the place
to be searched with particularity. Maryland v. Garrison, 480 U.S. 79, 84 (1987); United States v.
Aljabari, 626 F.3d 940, 947 (7th Cir. 2010). A search that exceeds the scope permitted by the
warrant may thus be unconstitutional. Horton v. California, 496 U.S. 128, 140 (1990). Here,
however, the search of Mr. Jones’ garage did not exceed the scope of the search warrant. To
begin with, the warrant expressly authorized the search of “any and all out buildings . . . on the
property.” [DE 44-1]. The garage constitutes an outbuilding on the property, so the warrant
authorized its search even though the warrant did not specifically mention the garage. Second,
warrants that permit the search of the “premises” at a particular address generally permit a search
of all buildings located on that property, even if they are not specifically identified in the
warrant. United States v. Griffin, 827 F.2d 1108, 1114–15 (7th Cir. 1987). The warrant here used
that language, and thus permitted a search of any building on the property.
For example, in Griffin, 827 F.2d at 1113–14, the search warrant authorized a search of
the “premises” at a particular address. Id. In describing the property, the warrant noted that it
contained a residence and a detached garage, but it did not mention a separate toolshed also
located on the property. Id. Officers nonetheless searched the toolshed while executing the
warrant and found incriminating evidence, which the defendant moved to suppress. Id. The
Seventh Circuit held that the motion to suppress was properly denied, holding that the term
“premises” encompasses all of the land and buildings located on a particular property. Id. at
1114–15. Even though the warrant mentioned the house and garage in describing the property,
the court held that that description “does not limit the scope of the search to those specific areas,

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but instead makes the premises to be searched more readily identifiable.” Id. at 1115.
Accordingly, the warrant authorized a search of the toolshed because the toolshed was a building
located on the premises identified in the warrant. Id.; see also Illinois v. Valle, 34 N.E.3d 231,
237–37 (Ill. App. Ct. 2015) (“[C]ourts have repeatedly and routinely held that a warrant that
authorizes the search of ‘premises’ at a given residential address allows the search of detached
garages, sheds, and other outbuildings even if these separate structures are not mentioned at all in
the warrant.” (citing Griffin and other cases)).
The warrant here likewise authorized a search of the “premises” at a particular address.
Though the description of the property in the warrant did not mention the existence of a garage,
nothing in the warrant limited the scope of the search to the buildings actually described in the
warrant; the description merely served to make the property more readily identifiable. In fact, as
noted above, the warrant expressly stated that the search could include “all out buildings” on the
property. Mr. Jones does not contend that his garage was not on the property at that address, so
the garage was included within the scope of the search warrant. A motion to suppress any
evidence found in the garage would therefore have been frivolous, and Mr. Jones’ attorney
cannot be considered ineffective for declining to file such a motion.
Second, Mr. Jones has failed to establish that he was prejudiced by any failure to file a
motion to suppress. To establish prejudice in this context, a defendant “must do more than
simply allege ‘that he would have insisted on going to trial’” had he received adequate
representation prior to his guilty plea; “he must also come forward with objective evidence that
he would not have pled guilty” and would have proceeded to trial. Hutchings, 618 F.3d at 697;
see also Cieslowski, 410 F.3d at 359. Here, there is little reason to believe that competent counsel
would have chosen to file a motion to suppress even if that motion could have been successful,

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or that Mr. Jones would have proceeded to trial on the original indictment even if a motion to
suppress was granted.
The original indictment charged Mr. Jones with three counts: (1) possession of heroin
with intent to distribute; (2) possession of a firearm in furtherance of a drug trafficking crime;
and (3) possession of a firearm as a felon. Relative to Count 1, for possessing heroin with the
intent to distribute, the government had conducted multiple controlled buys of heroin from Mr.
Jones, and the search of his residence revealed heroin and other paraphernalia. None of the
evidence in the garage that Mr. Jones wants to have been suppressed would have been necessary
to return a conviction on this count, and Mr. Jones has given no indication that he had any
plausible defense to that charge. If convicted at trial on that count alone, Mr. Jones would have
faced statutory penalties of up to 20 years of imprisonment, and he would have qualified as a
career offender under the Guidelines,1 meaning his guideline sentencing range would have been
210 to 240 months of imprisonment.2 Meanwhile, the count to which Mr. Jones actually pled
guilty—possessing a stolen firearm—carried a statutory maximum sentence of only 10 years,
and the guideline sentencing range on that count was 100 to 120 months. In return for Mr. Jones’
guilty plea to that charge by way of an information, the government agreed to dismiss all three of
the counts of the original indictment. Thus, even if Mr. Jones could have defeated with certainty

1

Mr. Jones’ attorney clearly considered this factor in advising Mr. Jones as to his plea, as he
filed a motion to continue trial for the express purpose of investigating whether Mr. Jones would
qualify as a career offender under the Sentencing Guidelines. [Case No. 3:13-CR-92, DE 21
(“[I]n order to make a knowing and voluntary plea counsel believes the Defendant must
understand the possible exposure he faces in terms of an executed sentence; if applicable, career
offender status would drastically increase Defendant’s exposure under the sentencing
guidelines.”)].
2

As a career offender, Mr. Jones’ offense level would be 32, and his criminal history category
would be VI. U.S.S.G. § 4B1.1(b). This would produce a range of 210 to 262 months under the
Sentencing Table, which would then be limited to 210 to 240 months by the statutory maximum
for this count.
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the charge to which he actually pled guilty, he has provided no reason to believe that he would
have done so and forgone the substantial benefit that his plea agreement provided to him. The
Court therefore finds that Mr. Jones has not established prejudice, and that his claim of
ineffective assistance of counsel relating to his plea agreement fails for that reason as well.
Because the Court has found that Mr. Jones’ waiver was made knowingly and
voluntarily, and that it was not the product of ineffective assistance of counsel, the collateral
review waiver is enforceable and precludes any claims within its scope. Dowell v. United States,
694 F.3d 898, 901–02 (7th Cir. 2012); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.
1999) (“[W]aivers [of collateral review] are enforceable as a general rule; the right to mount a
collateral attack pursuant to § 2255 survives only with respect to those discrete claims which
relate directly to the negotiation of the waiver.”). As noted above, the only exception to that
waiver is for a claim of ineffective assistance of counsel that relates directly to the plea
agreement or its negotiation, but the Court has considered that claim and rejected it on its merits.
Mr. Jones’ other claims, for ineffective assistance at sentencing and on appeal, are squarely
within the scope of the waiver, and are therefore barred. Nonetheless, for completeness, the
Court will discuss the merits of those claims.
B.

Mr. Jones’ Counsel Was Not Ineffective at Sentencing
Mr. Jones next argues that his attorney was ineffective for failing to challenge certain

Guidelines enhancements at sentencing. Specifically, Mr. Jones believes that he should not have
received a 2-level enhancement for possessing a stolen firearm, or a 4-level enhancement for
possessing a firearm in connection with another felony offense. As to the 2-level enhancement,
Mr. Jones argues that an enhancement for possessing a stolen firearm constitutes doublecounting, as his offense of conviction was for possessing a stolen firearm. And as to the 4-level
enhancement, Mr. Jones maintains that he should not have received an enhancement under the
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Guidelines for possessing the firearm in connection with another felony offense because he was
not convicted for any other felony offense. In his opening brief, Mr. Jones argues that his
attorney was ineffective because he failed to object to these enhancements at all. In his reply
brief, Mr. Jones concedes that his attorney discussed these issues at the sentencing hearing, but
he argues that his attorney should have raised them sooner so that they could be more fully
considered.
However, Mr. Jones’ attorney did in fact object to these enhancements in advance of the
sentencing hearing. On April 10, 2014, over a month prior to the sentencing hearing, Mr. Jones’
attorney submitted objections to the draft Presentence Report. [DE 11]. Those objections stated,
in pertinent part:
Regarding Paragraphs 12 & 24:
The presentence report indicates that a two (2) level enhancement is applicable due
to the fact that the .44 revolver was stolen, pursuant to U.S.S.G. § 2K2.1(b)(4)(A).
Defendant does not dispute that the gun was stolen. He denies stealing the weapon
himself, but acknowledges possession of the firearm and knowledge it was stolen.
However, defendant pled to receipt/possession of a stolen firearm in violation of 18
U.S.C. § 922(j). An essential element of that offense is that firearm in question be
stolen. Applying § 2K2.1(b)(4)(A) would amount to double counting in that
defendant would be punished twice for the same conduct. As such, defendant would
assert that application of § 2K2.1(b)(4)(A) is inappropriate.
Regarding Paragraphs 12 & 25:
Defendant continues to accept responsibility for his actions and understands that
the Court may consider a wide range of circumstances surrounding the offense as
relevant conduct.
While defendant acknowledges possession of the stolen firearm, he maintains that
he did not, nor was it ever his intent to possess or use said firearm to further a felony
offense, or to be used in connection with any other felony offense. While illegal
narcotics were found in various locations of the residence, the firearm itself was
found in a trash can in the garage where it was not otherwise readily accessible.

15

[DE 11]. The Addendum to the Presentence Report that the probation officer filed on April 21,
2014 thus reflected those objections. [DE 13].
Mr. Jones’ counsel then reiterated those same objections in his sentencing memorandum,
which was filed a full week prior to the sentencing hearing:
Having plead guilty to a violation of § 922(j), which requires as an essential
[element] that the firearm in question be stolen, the Probation Department indicates
that a two (2) level enhancement, pursuant to § 2K[2].1(b)(4)(A) is appropriate
because the revolver possessed by defendant was stolen. Applying
§ 2K[2].1(b)(4)(A) would amount to double counting in that defendant would be
punished twice for the same conduct. As such, application of § 2K[2].1(b)(4)(A) is
inappropriate.
Defendant does not dispute the gun was stolen. He denies stealing the weapon, but
acknowledges possession of the weapon and knowledge it was stolen.
The probation department then adds a four (4) level enhancement pursuant to
§ 2K[2].1(b)(6)(B) on the belief that defendant possessed the firearm in connection
to the felony offense of drug trafficking. While defendant acknowledges possession
of the stolen firearm, he maintains that he did not use the firearm in connection with
any other felony offense, nor did he possess it with the intent to further any other
felony offense. While illegal narcotics were found in various locations of the
residence, the firearm itself was found in a trashcan in the garage where it was not
otherwise readily accessible.
Defendant continues to accept responsibility for his actions and understands that
the Court may consider a wide range of circumstances surrounding the offense to
which he plead, but simply asserts that that possession of the firearm was unrelated
to anything else.
Given the arguments regarding application of § 2K[2].1(b)(4)(A) (stolen firearm)
and § 2K[2].1(b)(6)(B) (possessed firearm in connection with another felony
offense), defendant maintains that the appropriate adjusted offense level is properly
calculated at level twenty-one (21).
[DE 18 p. 3–4]. Finally, at the sentencing hearing, the parties discussed these objections at
length, and both parties had the opportunity to submit evidence on these objections. Thus, Mr.
Jones’ attorney did exactly what Mr. Jones says he should have—he raised these objections well
in advance of the sentencing hearing so that they could be fully argued by the parties and

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considered by the Court. Therefore, Mr. Jones has not shown that his attorney’s performance was
deficient.
Moreover, the reason the objections were overruled was not due to any shortcoming of
Mr. Jones’ attorney, but because both of those enhancements were proper, so the Court was
bound to apply them. First, as to the enhancement for possessing a stolen firearm, the Seventh
Circuit has held that double-counting—using the same conduct more than once to increase a
defendant’s guideline range—“is generally permissible unless the text of the guidelines expressly
prohibits it.” United States v. Vizcarra, 668 F.3d 516, 520–21 (7th Cir. 2012). Here, the text of
the guideline states, “If any firearm was stolen, increase by 2 levels.” U.S.S.G. § 2K2.1(b)(4)(A).
The only pertinent exception to that provision is where “the base offense level is determined
under subsection (a)(7).” Id. cmt. n.8(A), because all other subsections are driven by conduct
other than that the firearm was stolen. That exception does not apply here, though, because Mr.
Jones’ base offense level was determined under subsection (a)(2), not subsection (a)(7).
Therefore, because the text of the guideline does not “expressly prohibit[]” double counting
under these circumstances, the 2-level enhancement properly applied even though Mr. Jones’
offense of conviction was for possessing a stolen firearm.
As to the 4-level enhancement for possessing a firearm in connection with another felony
offense, the Court applied that enhancement based on the firearm’s close proximity to heroin and
drug paraphernalia (baggies and a scale) when it was discovered. That was consistent with
application note 14(B), which states that this enhancement should apply “in the case of a drug
trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing
materials, or drug paraphernalia. In these cases, application of [this enhancement] . . . is
warranted because the presence of the firearm has the potential of facilitating another felony

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offense . . . .” U.S.S.G. § 2K2.1 cmt. n.14(B). Mr. Jones argues that he should not have received
this enhancement because he was not convicted of a controlled substance offense. However, the
Guidelines are not limited in scope to conduct for which a defendant is convicted. To the
contrary, a court must consider “all acts and omissions committed . . . by the defendant . . . that
occurred during the commission of the offense of conviction, in preparation for that offense, or
in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G.
§ 1B1.3(a)(1). Further, the application notes to this enhancement state that it can apply
“regardless of whether a criminal charge was brought, or a conviction obtained” for the other
felony offense.” U.S.S.G. § 2K2.1 cmt. n.14(C); see also Alleyne v. United States, 133 S. Ct.
2151, 2163 (2013) (“We have long recognized that broad sentencing discretion, informed by
judicial factfinding, does not violate the Sixth Amendment.”); Thomas, 606 F. App’x at 843
(holding that this enhancement properly applied even though the defendant had not been charged
with or convicted of the other felony offense). Accordingly, it does not matter at all that Mr.
Jones was not convicted for possessing or distributing heroin; because the firearm was found in
close proximity to heroin and drug paraphernalia, the Court was bound to apply this
enhancement whether Mr. Jones was convicted of that offense or not.
In sum, Mr. Jones’ attorney was not ineffective at sentencing, as he promptly objected to
the enhancements just as Mr. Jones argues he should have. Moreover, both of the enhancements
in question were properly applied, so his attorney could not have been ineffective in failing to
challenge them and Mr. Jones could not have suffered any prejudice. Accordingly, the Court
finds that Mr. Jones did not receive ineffective assistance of counsel at sentencing.
C.

Mr. Jones’ Counsel Was Not Ineffective for Failing to File a Notice of Appeal
Finally, Mr. Jones argues that his attorney rendered ineffective assistance by failing to

file a notice of appeal as requested. As a general matter, “a lawyer who disregards specific
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instructions from the defendant to file a notice of appeal acts in a manner that is professionally
unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 476–77 (2000). “And ‘when counsel fails to
file a requested appeal, a defendant is entitled to an appeal without showing that his appeal
would likely have merit.’” Dowell v. United States, 694 F.3d 898, 901 (7th Cir. 2012) (quoting
Peguero v. United States, 526 U.S. 23, 28 (1999)) (internal alterations omitted). “In other words,
when a defendant asks his attorney to pursue a direct appeal and the attorney does not do so, it is
per se ineffective assistance of counsel.’” Id. (quoting Gant v. United States, 627 F.3d 677, 681
(7th Cir. 2010)).
In certain other circuits, that would be the end of the analysis, and Mr. Jones could
prevail on a claim of ineffective assistance of counsel (at least if he had not waived his right to
bring such a claim in a collateral proceeding) by simply proving that he directed his attorney to
file a notice of appeal. However, the Seventh Circuit has recognized an exception to that rule
when a defendant agrees in a plea agreement to waive his right to appeal:
Once a defendant has waived his right to appeal not only in writing but also in open
court under Rule 11(b)(1)(N) [at a change of plea hearing], the sixth amendment
does not require counsel to disregard the waiver. The regimen of Strickland applies:
the defendant must show both objectively deficient performance and prejudice.
Unless a non-frivolous issue could be raised on appeal, counsel should protect the
client’s interest in retaining the benefit of the plea bargain.
Nunez v. United States, 546 F.3d 450, 456 (7th Cir. 2008); see also Solano v. United States, No.
15-1290, 2016 WL 456204, at *1 (7th Cir. Feb. 5, 2016) (“[T]he Sixth Amendment does not
require an attorney to accede to a defendant’s request to file an appeal where the defendant has
knowingly and voluntarily waived that right as part of a valid plea agreement.”). These cases
acknowledge that the fundamental decision of whether to appeal rests with the defendant, as Mr.
Jones argues. But they also recognize that when a defendant enters an agreement waiving his
right to appeal, the defendant has already made that decision. As the Seventh Circuit explained in
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Nunez, “It will not do to reply that the decision to appeal is entrusted to the defendant personally,
and that counsel must do the client’s bidding. [The defendant] had made a personal decision—a
decision not to appeal. That’s what the waiver was about.” 546 F.3d at 455.
Because Mr. Jones agreed in his plea agreement not to appeal, the analysis in Nunez
applies, and Mr. Jones’ attorney was not required to file a notice of appeal merely because he
asked him to. Rather, because the waiver did not exclude from its scope any claims that could
have been brought on direct appeal,3 Mr. Jones’ attorney was both entitled and obligated to
exercise his professional judgment in deciding whether to file a notice of appeal. Nunez, 546
F.3d at 455. Mr. Jones never states what issues he wanted to raise on appeal, though, so he has
not satisfied his burden of showing that any non-frivolous arguments existed that might have led
a competent attorney to file a notice of appeal. Accordingly, Mr. Jones has not shown that his
attorney rendered ineffective assistance by declining to do so, so this claim would fail even on its
merits.
IV. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United
States District Courts, the Court must “issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” A certificate of appealability may be issued “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

3

As noted above, the only exception was for ineffective assistance of counsel relative to the
waiver or its negotiation. But Mr. Jones does not state that he wanted to raise such a claim in his
appeal, and without having first raised that claim in the district court, Mr. Jones could not have
properly presented it on direct appeal. United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014)
(“[W]e have said many times that it is imprudent to present an ineffective-assistance argument
on direct appeal.”). And because such a claim can always be brought in a motion under § 2255,
no prejudice could result from a failure to present it on direct appeal. See id. (“[A] defendant is
never obliged to raise an ineffective-assistance argument on direct appeal— . . . in other
words, . . . it is always safe to reserve the issue for collateral review.”).
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§ 2253(c); Rule 11, Rules Governing Section 2255 Proceedings for the United States District
Courts. The substantial showing standard is met when “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.’” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
(1983)); see Young v. United States, 523 F.3d 717 (7th Cir. 2008). A defendant is not required to
show that he will ultimately succeed on appeal. Miller-El v. Cockrell, 537 U.S. 322, 342 (2003)
(stating that the question is the “debatability of the underlying constitutional claim, not the
resolution of that debate”).
Here, the Court does not find that Mr. Jones has made a substantial showing of the denial
of any constitutional rights. The record indicates that Mr. Jones was well-represented at each
stage of this proceeding, and that he also knowingly and voluntarily waived his right to file a
motion under § 2255. Accordingly, the Court does not believes that any issues in this motion
could be resolved in a different manner or are adequate to deserve encouragement to proceed
further. The Court therefore denies the issuance of a certificate of appealability.
The Court advises Mr. Jones that pursuant to Rule 22(b) of the Federal Rules of
Appellate Procedure, when the district judge denies a certificate of appealability, the applicant
may request a circuit judge to issue the certificate. The Court further advises Mr. Jones that Rule
4(a) of the Federal Rules of Appellate Procedure governs the time to appeal an order entered
under the rules governing § 2255 proceedings. See Rule 11(b), Rules Governing Section 2255
Proceedings for the United States District Courts. Under Rule 4(a), when the United States is a
party in a civil case, any notice of appeal may be filed by any party within 60 days after the
judgment or order appealed from is entered. Fed. R. App. P. 4(a); Guyton v. United States, 453

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F.3d 425, 427 (7th Cir. 2006) (stating that “the time to contest the erroneous denial of [the
defendant’s] first § 2255 motion was within 60 days of the decision”).
V. CONCLUSION
For the foregoing reasons, the Court DENIES Mr. Jones’ motion for relief under § 2255,
and DENIES the issuance of a certificate of appealability.
SO ORDERED.
ENTERED: February 16, 2016

/s/ JON E. DEGUILIO
Judge
United States District Court

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