Stanton v. USA

Filing 1

OPINION AND ORDER: GRANTING 29 Motion to Vacate (2255) as to Schuyler Stanton (1); DIRECTING the Clerk to vacate Mr. Stanton's sentencing 22 & 23 , with resentencing to be scheduled by future order; APPOINTING the Federal Community Defende rs to represent Mr. Stanton at his resentencing; DIRECTING the Probation Department to prepare a revised pre-sentence investigation report; and DENYING AS MOOT 33 Motion to Appoint Counsel for the motion to vacate. Signed by Judge Robert L Miller, Jr on 3/30/17. (Copy mailed to pro se party)(jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
SCHUYLER STANTON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Cause No. 3:16-cv-747 RLM
(Arising out of 3:15-cr-50 RLM)

OPINION AND ORDER
Schuyler Stanton asks that the court vacate or correct his sentence after
the parties discovered a factual error in his pre-sentence report that resulted in
an incorrect calculation of his guideline sentence range. The government doesn’t
oppose Mr. Stanton’s motion and the court grants it.

I. BACKGROUND
Mr. Stanton pleaded guilty to one count of possessing with intent to
distribute cocaine. 21 U.S.C. § 841(a)(1). The pre-sentence investigation report
explained that law enforcement seized 757.47 kilograms of marijuana from the
residence from which Mr. Stanton sold drugs. This amount of marijuana moved
Mr. Stanton to a base offense level of 28. U.S.S.G. § 2D1.1(c)(6). After a two-level
increase for possession of firearms, § 2D1.1(b)(1), and a three-level of reduction
for acceptance of responsibility, § 3E1.1, Mr. Stanton’s offense level was 27. With
his criminal history, the Guidelines recommended a sentence between 63 and
78 months imprisonment. Both parties recommended a sentence of 60 months

and the court sentenced Mr. Stanton to 60 months followed by three years
supervised release.
Mr. Stanton’s then-girlfriend and co-defendant was sentenced for the same
crime in a separate proceeding. In preparing for that sentencing, the government
realized that there had been a mistake in Mr. Stanton’s pre-sentence
investigation report. The amount of marijuana seized was actually 190
kilograms, not 757.47 kilograms. If corrected in time for Mr. Stanton’s
sentencing, his base offense level would have been four levels lower. By the time
the error was discovered, the deadline for Mr. Stanton to appeal had passed.
The government then moved to correct Mr. Stanton’s sentence pursuant
to Rule 35. The court denied its motion because Rule 35 allows the court to
correct a sentence that resulted from clear error only within 14 days of
sentencing, which had already elapsed. Fed. R. Crim. P. 35(a). Rule 36 also didn’t
provide Mr. Stanton with a remedy, because his sentence was based on a clerical
error contained in the PSR, not the sentence itself. The only way for Mr. Stanton
to have his sentence corrected would be through collateral attack. Mr. Stanton
filed a motion to vacate or correct his sentence pursuant to 28 U.S.C. § 2255.

II. DISCUSSION
One convicted of a federal crime can challenge his sentence on grounds
that the sentence violates the Constitution or laws of the United States, was
imposed without jurisdiction, exceeds the statutory maximum, or is otherwise
subject to collateral attack. 28 U.S.C. § 2255(a). An evidentiary hearing isn’t
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required if “the motion and files and records of the case conclusively show that
the petitioner is entitled to no relief.” 28 U.S.C. § 2255(b). After reviewing Mr.
Stanton’s petition and the record of this case, the court concludes that the
factual and legal issues raised can be resolved on the record in Mr. Stanton’s
favor, so a hearing is unnecessary. See Menzer v. United States, 200 F.3d 1000,
1006 (7th Cir. 2000).
Generally, issues not argued and decided on direct appeal can’t be raised
in a § 2255 petition unless the petitioner can show good cause and actual
prejudice for the procedural default. United States v. Frady, 456 U.S. 152, 167
(1982); Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002). But the
government supports Mr. Stanton’s petition and doesn’t raise this defense, so
it’s waived. United States v. Rezin, 322 F.3d 443, 446 (7th Cir. 2003).
Mr. Stanton’s § 2255 petition can move forward based on the discovery of
a fact counter to that on which the court relied in sentencing him: the amount
of drugs seized. 28 U.S.C. § 2255(f)(4). Generally, a fact-based challenge to a
sentence requires that it be filed within a year of when the facts “supporting the
claim . . . presented could have been discovered through the exercise of due
diligence.” Id. Limitations periods are affirmative defenses. To the extent this or
any other limitations period could apply to Mr. Stanton’s claim, the government
waived them when it decided to support Mr. Stanton’s motion. See Day v.
McDonough, 547 U.S. 198 (2006); Grigsby v. Cotton, 456 F.3d 727, 731 (7th Cir.
2006).

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“[N]ot every error is corrigible in a postconviction proceeding, even if the
error was not harmless.” Hawkins v. United States, 706 F.3d 820, 823 (7th Cir.
2013). For this reason, mistakes in guideline interpretation are not typically
correctable on collateral review. Id. An example is if “the probation service in
recommending a sentence to a district judge makes a mistake in applying the
(advisory) guideline that the judge doesn’t catch.” Id. But this isn’t an example
of the probation service feeding an incorrect guideline to the judge based on facts
that are correct. It’s an example of the probation service inadvertently feeding an
incorrect fact to counsel and the judge, which resulted in an improper guideline.
The court sentenced Mr. Stanton based on misinformation of how much
marijuana had been seized, not because the probation service or lawyers
misconstrued the guideline that would have applied had that quantity been
correct the first time. The situation is analogous to a guideline enhancement
imposed based on the “fact” of a prior conviction that is vacated after final
judgment. See Johnson v. United States, 544 U.S. 295 (2005). These errors can
and should be corrected through § 2255.
Mr. Stanton argued this motion without counsel and so the court
construes it liberally. See Ray v. Clements, 700 F.3d 993, 1002 (7th Cir. 2012).
Even though Mr. Stanton argued his case as one of miscarriage of justice or,
alternatively, ineffective assistance of counsel, the discovery of a fact provides a
clearer avenue for relief. The court will take that route instead.

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III. CONCLUSION
Based on the foregoing, the court:
(1) GRANTS Mr. Stanton’s motion to vacate or correct his sentence [Doc.
No. 29];
(2) DIRECTS the Clerk to vacate Mr. Stanton’s sentencing [Doc. Nos. 22,
23], with resentencing to be scheduled by future order;
(3) APPOINTS the Federal Community Defenders to represent Mr. Stanton
in his resentencing, 18 U.S.C. § 3006A(a);
(4) DIRECTS the Probation Department to prepare a revised pre-sentence
investigation report; and
(5) DENIES as moot Mr. Stanton’s motion requesting counsel for the
motion to vacate [Doc. No. 33].
SO ORDERED.
ENTERED: March 30, 2017

/s/ Robert L. Miller, Jr.
Judge
United States District Court
Cc: Schuyler Stanton

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