Kellogg v. USA
OPINION AND ORDER dismissing [DE #75 in 3:17cr9] Motion to Vacate (2255) as to Nathan Kellogg (2) and DIRECTS the Clerk to enter judgment accordingly. The Court DENIES the issuance of a certificate of appealability. Signed by Judge Jon E DeGuilio on 1/9/2018.(Copy mailed to pro se party)(rmc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
UNITED STATES OF AMERICA
Case No. 3:17-CR-009 JD
OPINION AND ORDER
Defendant Nathan Kellogg pled guilty to four counts of Hobbs Act robbery, 18 U.S.C.
§ 1951, each associated with a separate armed robbery. In each of the robberies, Mr. Kellogg
drove his co-defendant, Timothy Bennitt, to and from the sites, while Mr. Bennitt entered the
stores or restaurants, brandished or referenced a firearm, and committed the robberies. After their
arrests, Mr. Kellogg and Mr. Bennitt each confessed their involvement in the robberies. Mr.
Kellogg subsequently entered a plea agreement in which he admitted that he knowingly assisted
Mr. Bennitt’s commission of the armed robberies. In return for his guilty plea, the government
dismissed an additional charge for brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c). The Court sentenced Mr. Kellogg to 85 months of
imprisonment, and Mr. Kellogg did not appeal.
Now proceeding pro se, Mr. Kellogg filed a motion under 28 U.S.C. § 2255, seeking to
vacate his sentence on the basis that he received ineffective assistance of counsel at sentencing.
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Courts, “If it plainly appears from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to relief, the judge must dismiss the
motion . . . .” Here, it plainly appears from the motion and the record of prior proceedings that
Mr. Kellogg is not entitled to relief on his claim, so the Court dismisses his motion.
To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that
his counsel’s performance was deficient, meaning that it fell below an objective standard of
reasonableness; and (2) that he was prejudiced by the deficiencies in his counsel’s performance,
meaning that there is a reasonable probability that the results of his sentencing hearing would
have been different with effective representation. Strickland v. Washington, 466 U.S. 687 (1984);
Fuller v. United States, 398 F.3d 644, 650 (7th Cir. 2005).
Mr. Kellogg primarily argues that his attorney was ineffective for failing to object to a 5level enhancement under § 3B3.1(b)(2) of the Sentencing Guidelines, which applies “if a firearm
was brandished or possessed.” There is no question that Mr. Kellogg’s co-defendant brandished
or possessed a firearm during each of the robberies. However, Mr. Kellogg argues that he should
not have received this enhancement because he was “merely the getaway driver” and never “set
foot in the robberies” himself, and that only his co-defendant brandished or possessed a firearm.
[DE 75 p. 1]. This argument relies on the premise that the guidelines are based only on a
defendant’s own conduct, not the conduct of any co-defendants, but that premise is mistaken. In
calculating the guideline range, a court must consider not only the defendant’s own actions, but
also any other individuals’ actions that were “(i) within the scope of the jointly undertaken
criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in
connection with that criminal activity.” § 1B1.3(a)(1).
Mr. Kellogg does not offer any basis on which counsel could have argued that those
elements were not met here as to the brandishing or possession of the firearm—he argues only
that he did not brandish or possess the firearm himself, which is beside the point. In addition, the
facts plainly support the enhancement. Mr. Bennitt’s brandishing and possession of a firearm
while demanding money from the victims was within the scope of and in furtherance of the
robberies that he and Mr. Kellogg undertook to commit. And it was not only foreseeable to Mr.
Kellogg that Mr. Bennitt would possess a firearm, he actually knew that Mr. Bennitt would do
so; he confessed to the involvement of a firearm in the robberies, and even noted that he took the
ammunition out of the firearm before the latter robberies so that Mr. Bennitt would not shoot
anyone. Defense counsel noted that fact at sentencing as a mitigating factor, and absent any
reason to believe that an objection to this enhancement would have been successful, it was
reasonable for counsel to address this factor in that manner. Accordingly, Mr. Kellogg did not
receive ineffective assistance in this respect, nor has he shown any possibility of prejudice from
this alleged error.
Mr. Kellogg also argues that his attorney failed to clarify that one of his previous
convictions noted in the Presentence Report had been converted from a felony to a misdemeanor.
That clarification would have had no effect on the outcome of the sentencing hearing, though.
That distinction would not have altered the calculation of the Guidelines’ sentencing range, nor
would it have caused the Court to impose a different sentence. In considering the factors under
§ 3553(a), the Court is concerned more with the nature of the conviction and the conduct it
entails, as opposed to whether it is labeled a felony or misdemeanor. And as the Court discussed
at sentencing, Mr. Kellogg has a lengthy criminal history that includes multiple other felony
convictions. Thus, characterizing this one conviction as a misdemeanor instead of a felony would
not have caused the Court to impose a different sentence. Mr. Kellogg therefore suffered no
prejudice as a result of any oversight in this regard.
Finally, Mr. Kellogg argues that the § 924(c) charge that was dismissed pursuant to the
plea agreement was invalid, as he contends that Hobbs Act robbery is not a crime of violence
under § 924(c). He suggests that the threat of a § 924(c) charge may have affected his attorney’s
decisions at sentencing (though it’s not clear how that charge, which was already being
dismissed pursuant to the plea agreement, could have done so). First, however, as just discussed,
Mr. Kellogg has not identified anything else that his attorney could have done at sentencing that
would have benefitted him, so Mr. Kellogg has not suffered any prejudice. And second, the
Seventh Circuit has repeatedly held that Hobbs Act robbery is a crime of violence under § 924(c)
and can support a conviction for that offense. E.g., United States v. Rivera, 847 F.3d 847, 848–49
(7th Cir. 2017); United States v. Allen, 702 F. App’x 457, 459 (7th Cir. 2017); United States v.
Starwalt, 701 F. App’x 508, 509 (7th Cir. 2017). In arguing to the contrary, Mr. Kellogg cites
only the Tenth Circuit’s opinion in United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017).
However, that decision addressed only whether Hobbs Act robbery qualifies as a crime of
violence under the Sentencing Guidelines; it specifically noted that its holding does not apply to
§ 924(c), which uses a different definition of that term. Id. at 1158. Therefore, O’Connor is
inapplicable to Mr. Kellogg’s case.
For those reasons, the Court finds that it plainly appears that Mr. Kellogg is not entitled
to relief under § 2255, so the Court DISMISSES his motion and DIRECTS the Clerk to enter
judgment accordingly. For the same reasons, the Court DENIES the issuance of a certificate of
appealability, as the claim is not sufficient to deserve encouragement to proceed further and its
resolution is not debatable. The Court advises Mr. Kellogg 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. Kellogg that any notice of appeal must be filed within 60 days after judgment is
entered on this motion. Fed. R. App. P. 4(a); Guyton v. United States, 453 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”).
ENTERED: January 9, 2018
/s/ JON E. DEGUILIO
United States District Court
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