BOTTOMS v. USA

Filing 31

ENTRY on Petition for Relief Pursuant to 28 U.S.C. 2255 - Bottom's Petition for relief pursuant to 28 U.S.C. § 2255 is DENIED. A copy of this Entry shall be docketed in the underlying criminal action, No. 4:10-cr-0006-TWP-VTW-1. Finally, th e Court denies a certificate of appealability because Bottoms has failed to show that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Judgment consistent with this Entry shall now issue. See Entry for details. Signed by Judge Tanya Walton Pratt on 3/23/2016.(LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
JESSE K. BOTTOMS, SR.
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:13-cv-044-TWP-DML

ENTRY ON PETITION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255
Jesse Bottoms was convicted of a conspiracy drug offense and of a related financial crime
in Case No. 4:10-cr-0006-TWP-VTW-1. Bottoms now seeks relief in this action pursuant to 28
U.S.C. § 2255. He asserts that the United States breached the plea agreement at sentencing and
that he was denied the effective assistance of counsel. Having closely examined the record, the
Court concludes that no evidentiary hearing has been required to fully address Bottoms’ claims.
See Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). For the reasons stated below,
the Court finds that there was no breach of the plea agreement which would require a remedy, that
Bottoms’ Petition must be denied, and that a certificate of appealability should not be issued.
I.

LEGAL STANDARD

A petition pursuant to 28 U.S.C. § 2255(a) is the presumptive means by which a federal
prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343
(1974). “Section 2255(a) authorizes relief when a sentence was imposed in violation of the laws
of the United States.” United States v. Bailey, 777 F.3d 904, 907 (7th Cir. 2015). This relief is
available only in limited circumstances, such as where an error is jurisdictional, of Constitutional

magnitude, or there has been a “complete miscarriage of justice.” See Harris v. United States, 366
F.3d 593, 594 (7th Cir. 2004).
Ineffective assistance of counsel claims are rarely appropriate for direct review since they
often turn on events not contained in the record of a criminal proceeding. Massaro v. United
States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). For these reasons,
ineffective assistance of counsel claims, regardless of their substance, may be raised for the first
time in a § 2255 petition.
II.

BACKGROUND

On December 14, 2010, Bottoms was charged in a Superseding Indictment with (1)
conspiracy to possess with intent to distribute and to distribute five kilograms or more of a
substance containing cocaine, and (2) engaging in a monetary transaction in criminally derived
property of a value greater than $10,000.00. A plea agreement was filed by the parties on
December 19, 2011, and on April 12, 2012, a combination change-of-plea and sentencing hearing
was conducted.
Bottoms’ plea agreement was governed by Federal Rule of Criminal Procedure
11(c)(1)(B), therefore the determination of his sentence was within the discretion of the Court.
Bottoms agreed to plead guilty to Counts One and Five of the Superseding Indictment. In
connection with the sentence, (a) the parties did not agree on the sentence in the plea agreement,
but left it up to the Court, (b) the parties disagreed as to whether Bottoms played a leadership role
in the conspiracy, (c) the Court was presented with information concerning Bottoms’ role in the
conspiracy, (d) the Court concluded, pursuant to U.S.S.G. § 3B1.1(a), that Bottoms had played a
leadership role in the conspiracy, and (e) the Court imposed executed concurrent sentences of 168
months for the conspiracy offense and 120 months for the financial offense. The sentence imposed

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for the conspiracy offense was the mandatory minimum sentence at the time. The executed
sentence for the conspiracy offense will be modified to 135 months pursuant to 18 U.S.C. §
3582(c)(2) based on the Stipulation filed on March 2, 2016.
The plea agreement did not prohibit or restrict the United States—or Bottoms himself, for
that matter—from arguing that any particular sentencing adjustment was or was not appropriate.
Moreover, at the sentencing hearing, Bottoms’ counsel did not protest the fact that the United
States had made an adjustment-oriented argument, but did dispute the appropriateness of that
argument. The plea agreement further provided, in part, that Bottoms waived his right to appeal
and his right to contest his conviction in an action pursuant to 28 U.S.C. § 2255.
III.

DISCUSSION

Every argument Bottoms makes here flows from his insistence that the United States
breached the plea agreement by arguing that a leadership adjustment was warranted. (The
exception to this understanding of Bottoms’ petition may be the Court’s determination that a
leadership adjustment was warranted, but that point is beyond challenge in the circumstances.)
The existence and the terms of the plea agreement are undisputed. It is likewise undisputed that
“[a] plea bargain is a contract, the terms of which necessarily must be interpreted in light of the
parties’ reasonable expectations.” United States v. Fields, 766 F.2d 1161, 1168 (7th Cir. 1985)
(quoting United States v. Mooney, 654 F.2d 482, 486 (7th Cir. 1981)). The parties’ reasonable
expectations are judged on the basis of an objective standard, id.; see also United States v.
Osborne, 931 F.2d 1139, 1162 (7th Cir. 1991). The Seventh Circuit “has taken a restrictive view
towards implying sentencing promises into agreements.” United States v. Doe, 940 F.2d 199, 203
(7th Cir.) (citing cases), cert. denied, 502 U.S. 869 (1991). Nonetheless, “when a plea rests in any
significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of

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the inducement or consideration, such promise must be fulfilled,” Santobello v. New York, 404
U.S. 257, 262 (1971), and the government “undercutting a sentencing recommendation may rise
to the level of a breach of an agreement.” United States v. Navarro, 804 F.3d 872, 877 (7th Cir.
2015) (citing cases). In turn, “[a] breach by the government of any express or implied terms of a
plea agreement is a violation of due process, and thus may be challenged under § 2255.” Downen
v. United States, 12 F.3d 1100 (7th Cir. 1993) (citing cases).
Bottoms argues that the plea agreement induced him to have a reasonable expectation that
the United States would not make an argument for the imposition of a particular sentence. The
Court does not agree. As already noted, the plea agreement did not preclude the United States
from arguing its view of an appropriate sentence. Bottoms concedes that the plea agreement left
the question of sentence “open” for the Court’s determination, and in the adversarial setting
process in which the proceedings occurred here this could hardly be reasonably construed in any
way other than the parties being free to argue what sentence they felt was appropriate. As such,
when the United States did so, it did not breach the plea agreement.
Guideline § 3B1.1(a) provides for a four-level increase in the base offense behavior level
where “the defendant was an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). To qualify for an adjustment under
§ 3B1.1(a), the defendant must have been the organizer or leader of one or more other participants.
Id. comment n.2. During the sentencing hearing, the Court made clear that it believed the leader
adjustment of U.S.S.G. § 3B1.1(a) applied and explained in detail why that finding was
appropriate. Contrary to Bottoms’ argument, the United States was not responsible for persuading
the Court to apply the adjustment.

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The foregoing finding also makes clear that the waiver provisions of the plea agreement
were not invalidated by the United States’ argument and hence there was no ineffective assistance
of counsel when Bottoms’ attorney failed to pursue an appeal. See United States v. Malone, 2016
WL 890972 (7th Cir. Mar. 9, 2016); Black v. United States, 2016 WL 496005, at *2 (S.D.Ind. Feb.
9, 2016) (citing Solano v. United States, 2016 WL 456204, at *1 (7th Cir. Feb. 5, 2016), and Nunez
v. United States, 546 F.3d 450, 456 (7th Cir. 2008)).
“If the United States breaches express or implied terms in these agreements, then it violates
due process. But the content of the promises is a question of fact . . . .” United States v. Doe, 940
F.2d 199, 202 (7th Cir.), cert. denied, 502 U.S. 869 (1991) (omitting internal citations). The
underlying record here actually refutes Bottoms’ argument that the plea agreement between him
and the United States creates or supports a reasonable expectation that the United States was
contractually obligated to not argue that a § 3B1.1(a) leadership role adjustment to Bottoms’
offense level was justified. Without such a reasonable expectation, Bottoms’ claims collapse. His
sentence is not tainted by the due process error of a breached plea agreement and the waiver
provision in the plea agreement is entirely enforceable. See Solano v. United States, 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.”); Jones v. United States, 167 F.3d
1142, 1145 (7th Cir. 1999) (“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”).

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IV. CONCLUSION
For the reason stated above, Bottom’s Petition for relief pursuant to 28 U.S.C. § 2255 is
DENIED.
A copy of this Entry shall be docketed in the underlying criminal action, No. 4:10-cr-0006TWP-VTW-1.
Finally, the Court denies a certificate of appealability because Bottoms has failed to show
that reasonable jurists would find “it debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Judgment consistent with this Entry shall now issue.

SO ORDERED.

Date: 3/23/2016

DISTRIBUTION:
Jeremy Brian Gordon
LAW OFFICE OF JEREMY GORDON
[e-mail]
Lauren M. Wheatley
UNITED STATES ATTORNEY’S OFFICE – Evansville
[e-mail]

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