Booker v. United States of America

Filing 15

ORDER Denying Petitioner's Motion to Vacate, Set Aside or Correct Sentence 1 , Denying Certificate of Appealability and Dismissing Case. (cc: all counsel; via US Mail to Petitioner) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

AMANI BOOKER,
Petitioner,
v.

Case No. 12-C-1015

UNITED STATES OF AMERICA,
Respondent.

ORDER DENYING PETITIONER’S MOTION TO VACATE, SET ASIDE
OR CORRECT SENTENCE, DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING CASE
Amani Booker has filed a motion to vacate, set aside or correct sentence pursuant
to 28 U.S.C. § 2255 challenging his 2011 judgment of conviction. For the reasons set forth
below, the motion will be denied.
A July 13, 2010, indictment charged Booker with one count of conspiracy to sex
traffic a child in violation of 18 U.S.C. § 371, one count of sex trafficking a child in violation
of 18 U.S.C. § 1591, and one count of production of child pornography in violation of 18
U.S.C. § 2251(a), which carried a mandatory penalty of 15 years. (Case No. 10-CR-133,
Doc. 15.) After receiving Booker’s guilty plea to count two (sex trafficking a child), this
court sentenced Booker to 168 months and the government dismissed the other two
counts with leave of the court. (Case No. 10-CR-133, Docs. 35, 38, 64 and 66.) The
Seventh Circuit Court of Appeals affirmed Booker’s conviction on November 16, 2011.
United States v. Booker, 447 Fed. Appx. 726 (7th Cir. 2011). Booker’s initial 2255 motion
followed on October 5, 2012. (Doc. 1.)

Because many of Booker’s assertions are contradicted by the record, the court will
first address the procedural history of the underlying criminal action. Attorney Thomas G.
Wilmouth entered his notice of appearance on behalf of Booker on June 18, 2010. (Case
No. 10-CR-133, Doc. 4.) A plea agreement was docketed on September 14, 2010, in
which Booker said he would plead guilty to count two (sex trafficking of a child) and
acknowledged the charge carried a minimum term of imprisonment of ten years. (Case
No. 10-CR-133, Doc. 35.) Notably, at paragraph 16 of the document, the parties agreed
that the applicable base offense level charged in count two was 30 under U.S.S.G.
§ 2G1.3(a)(2). Further, the parties understood and agreed that the government would
recommend a two-level increase for the use of a computer under § 2G1.3(b)(3) of the
Sentencing Guidelines and that a two-level increase for the “commission of a sex act”
under § 2G1.3(b)(4) was applicable. Booker agreed that he did not object to those
enhancements. (Id., ¶ 17.) Finally, at paragraph 38 Booker acknowledged, understood,
and agreed that he would plead guilty because he was in fact guilty and added that no
other promises, representations or other inducements had been made, nor agreements
reached other than those set forth in the plea document, to induce him to plead guilty.
Attorney Tom Wilmouth represented Booker during the plea hearing, but Attorney
Mullins entered a notice of appearance later that day. (Case No. 10-CR-133, Doc. 42.)
On December 27, 2010, Attorney Mullins filed a motion for an extension of time to file
objections to the presentence report to allow him to opportunity to consult with Booker in
prison. (Case No. 10-CR-133, Doc. 45.) Attorney Mullins also filed psychiatric and expert
reports. (Case No. 10-CR-133, Docs. 50 and 51.) Later, this court sustained Attorney
Mullins’s objection to a two-level increase under U.S.S.G. § 3B1.1, but denied his request
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for a sentence of 120 months. Attorney Mullins argued that the child-victim had been
prostituting herself before meeting Booker and that the victim looked older that she was,
citing a pediatrician’s report that a layperson could not tell whether the child was under 18
years of age.
The court rejected Booker’s request for a 120-month sentence with the following
comments:
I have weighed the facts and circumstances of this case and have
noted that the child who was enticed to engage in prostitution here was 14
years old. While the doctor who submitted his report suggests that it might
be difficult to tell from looking at her whether she was 14 or older, what you
and Miss Arnold said and did suggests strongly that you didn’t think she was
18. In fact, in my view you knew she was not 18. You quizzed this child
about her age. Miss Arnold did also.
Miss Arnold noted how inappropriately she was dressed when you
and Miss Arnold approached this child on the street at about 1:30 in the
morning as she was clearly soliciting business on the street corner. You and
Miss Arnold schooled this child and made it clear to her that what she was
selling for $50 could be sold for a lot more. You humiliated this young
woman and exposed her to the world by taking photographs of her and
posting them on the Internet so the world can see. Her privacy was at that
point shot, eliminated, perhaps for all time.
....
Mr. Wall has requested that the court impose a 168-month sentence.
And when I take into account all of the facts that have been set out in this
record, I concur. Such a sentence is no greater than is necessary under the
circumstances. It’s reasonable, yet exacts the right amount of punishment
with due regard for your incarceration prior to this case, in this particular
case, as well as other sentences that have been imposed.
(Doc. 8-2 at 27-28.)
The Seventh Circuit Court of Appeals decision indicates that Booker was
represented by Brian Mullins on appeal. Booker, 447 Fed. Appx. 726. Indeed, the briefs
were prepared and signed by Attorney Mullins who argued that the district court made
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procedural errors by not adequately considering his two arguments for a below-guidelines
sentence and by referring to a matter that was not in the record. (Appeal No. 11-1241,
Docs. 7, 8, 15, and 17.) Because Attorney Mullins was not available for oral argument,
Attorney Brian Fahl entered a notice of appearance form. (Appeal No. 11-1241, Doc. 16,
18.) Following the November 8, 2011, oral argument, the Seventh Circuit issued its
decision on November 16, 2011, affirming the conviction. (Appeal No. 11-1241, Doc. 34.)
The mandate issued on December 8, 2011. (Appeal No. 11-1241, Doc. 36.)
In affirming, the Seventh Circuit noted that the district court recognized that the
victim was already a sex worker but determined that a below-guidelines sentence was not
warranted because Booker taught her how to prostitute herself more profitably and posted
nude photos on the internet. In addition, the district court had explained that Booker
questioned the victim about her age repeatedly thereby indicating that he did not believe
her claim that she was eighteen. With respect to the district court’s statement about the
victim’s attire, the Seventh Circuit determined that the district court’s finding that Booker
knew the victim was not 18 had ample support in the record. Booker avoided demanding
valid identification, knew that the victim could not carry on an adult conversation, and the
police knew she was a minor. Booker, 447 Fed. Appx. 726.
In the pending motion, Booker asserts two grounds for relief. First, he claims that
counsel was ineffective on various grounds. Allegedly, counsel failed to argue against a
U.S.S.G. § 2G1.3(b)(3)(enhancement for use of a computer). Additionally, Booker took
issue with his representation by multiple attorneys—one or more of whom failed to fully
investigate the case before advising him to plead and refused his calls. Second, Booker
asserted that the district court erred by increasing his Guidelines range for use of a
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computer in the crime. This second claim was dismissed upon the initial screening of the
petition because Booker failed to raise the issue on direct appeal; however, the court
ordered the parties to brief the second claim and noted that Booker could challenge
counsel’s failure to object to the enhancement. (Doc. 2.)
Booker’s brief in support of the motion framed the issues as follows: (1) counsel
violated his due process and Sixth Amendment rights when he failed to investigate, object
to, or otherwise challenge the court’s application of U.S.S.G. § 2G1.3(b)(3); and
(2) counsel provided ineffective assistance during the plea negotiations by giving him
incorrect advice regarding the charge and sentencing range as well as by preventing him
from filing a motion to withdraw his plea after he was aware of counsel’s erroneous advice.
Both claims arise under the Sixth Amendment, where relief is available only in
extraordinary situations such as an error of constitutional or jurisdictional magnitude or
where a fundamental defect has occurred resulting in a complete miscarriage of justice.
Blake v. United States, 723 F.3d 870, 878-879 (7th Cir. 2013), citing Prewitt v. United
States, 83 F.3d 812, 816 (th Cir. 1996). A party asserting ineffective assistance of counsel
under the Sixth Amendment bears the burden of establishing two elements: (1) counsel’s
performance fell below objective standards for reasonably effective representation; and
(2) that counsel’s deficiency prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
To satisfy the first element of the Strickland test, the court considers whether in light
of all of the circumstances counsel’s performance was outside the wide range of
professionally competent assistance. Wyatt v. United States, 574 F.3d 455, 457-458
(7th Cir. 2009). The court’s assessment is highly deferential with a strong presumption that
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counsel’s conduct falls with the wide range of reasonable professional assistance.
Strickland, 466 U.S. at 689, 104 S. Ct. 2051. To that end, courts are admonished not to
become “Monday morning quarterbacks” in evaluating counsel’s performance. Harris v.
Reed, 894 F.2d 871, 877 (7th Cir. 1990). As for prejudice, Booker must show that there
is a reasonable probability, that, but for counsel’s errors, the result of the proceedings
would have been different, such that the proceedings were fundamentally unfair or
unreliable. A reasonable probability is defined as one that is sufficient to undermine
confidence in an outcome. Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir. 2006).
Booker contends that Attorney Wilmouth “was vehement in arguing that
§ 2G1.3(b)(3) was applicable” and that he felt “overwhelmed by counsel’s arguments and
succumbed to the pressure from him to accept the government’s plea offer.” He also
maintains that Attorney Mullins disregarded his concerns about § 2G1.3(b)(3), refused to
challenge the court’s application of the enhancement, counseled against withdrawing the
plea, and told him that a jury would find him guilty by “strict liability.” Finally, Booker
contends that he never had the opportunity to discuss this issue—or any issue—with
Attorney Fahl on appeal. Booker maintains that he informed counsel that he never posted
ads to the internet, that the computer on which the pictures were found and the credit card
information used to place the ads was in Holly Arnold’s name, that Holly Arnold admitted
the computer was hers, and that he never entered the hotel room.
The § 2G1.3(b)(3) enhancement for use of a computer increases the offense level
by two levels [i]f the offense involved the use of a computer or an interactive computer
service to . . . entice encourage, offer, or solicit a person to engage in prohibited sexual
conduct with the minor. The commentary provides that “[s]ubsection (b)(3) is intended to
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apply only to the use of a computer or an interactive computer service to communicate
directly with a minor or with a person who exercises custody, care, or supervisory control
of the minor. Id. cmt. 4. Booker relies on a Seventh Circuit decision in which the court
found the enhancement inapplicable based on application note 4’s language, where
internet ads for the defendant’s minor prostitute were posted by another minor who was
working for a different pimp. United States v. Patterson, 576 F.3d 431, 434, 443 (7th Cir.
2009). However, the Seventh Circuit rejected the argument that Booker makes regarding
the application for § 2G1.3(b)(3)(B) in United States v. McMillian, 777 F.3d 444, 449-450
(7th Cir. 2015) . There, the Seventh Circuit affirmed this court’s guideline for enhancement
where the defendant used a computer to create Craigslist posts. The Seventh Circuit
reasoned:
[T]he note is wrong. The guideline section provides a 2-level enhancement
whenever the defendant uses a computer to “entice, encourage, offer, or
solicit a person to engage in prohibited sexual conduct with the minor,” which
the defendant did when he created Craigslist pages on which to advertise
Jessica's and the girls' services as prostitutes. When an application note
clashes with the guideline, the guideline prevails. Stinson v. United States,
508 U.S. 36, 38, 113 S. Ct. 1913, 123 L. Ed. 2d 598 (1993).
It's true that United States v. Patterson, 576 F.3d 431, 443 (7th Cir.
2009), applied the application note, despite its inconsistency with the
guideline, without attempting to distinguish, or even citing, Stinson. But
Patterson is distinguishable from the present case, because the government
there had conceded, albeit erroneously, that the application note controlled;
we had no reason to reject a party's concession regarding an issue raised by
its opponent.
Moreover, any doubt about the applicability of Stinson to the
computer-use guideline is dispelled by the lengthy analysis of the issue in
United States v. Pringler, 765 F.3d 445, 451–55 (5th Cir.2014). And as
pointed in that opinion, “the [computer-use] enhancement would not have
been applicable [in Patterson ], irrespective of application note 4,” because
“neither the defendant nor someone part of the same criminal activity used
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a computer to solicit patrons,” id. at 454 n. 4, as was done in both Pringler
and our case today. Essentially, then, the statement in Patterson about the
application note is dictum.
Id., 777 F.3d at 449-450.
More importantly, Booker appeared in this court—under oath—and contradicted the
statement he makes in his motion. At the beginning of the plea hearing, this court
explained to Booker the consequences of making false statements under oath, Booker’s
right to speak privately with his attorney, and his right to change his mind regarding the
guilty plea before the conclusion of the day’s proceedings. The court told Booker that if he
changed his mind the court would respect his decision and set the case for trial on the
court’s calendar. Booker unequivocally stated that he wanted to plead guilty. (Case No.
10-CR-133, Doc. 101 at 3-4.)
At page 6 of the plea hearing transcript, the court asked Booker how he was getting
along with his attorney. According to Booker, the two of them spoke freely about the case
and that there were no matters that Attorney Wilmouth “refused to discuss or pursue.”
(Case No. 10-CR-133, Doc. 101 at 6.) Booker stated that he felt that he had effective legal
help up to that point. (Id.) The court found Booker competent to proceed.
Next, Attorney Wilmouth discussed count 2—sex trafficking of a minor—charge and
their disagreement with the government as to whether it was a strict liability charge.
Attorney Wilmouth explained that Booker agreed, that at the very least, he recklessly
disregarded the fact that the victim had not reached the age of 18 and that Booker took no
steps to learn her true age. (Case No. 10-CR-133, Doc. 101 at 8.) According to Attorney
Wilmouth, Booker’s decision to enter a guilty plea was “in candor influenced by the fact that
he was also charged in count 3 with production of child pornography,” which is a strict
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liability charge carrying a minimum term of 15 years. (Id. at 8-9.) Count 2 only carried a
10-year mandatory minimum. (Id.) Attorney Wilmouth explained that Booker was giving
up his right to say “I was negligent about her age,” which he believed could be a defense.
(Id. at 9.) Representing that Booker was a “very bright and savvy man,” Attorney Wilmouth
said he had no concerns that Booker was acting “knowingly and voluntarily and giving up
his right to a trial and admitting guilt under the law concerning Count 2.” (Id. at 10.) At that
point, Booker confirmed that he reviewed the matters as outlined by his attorney and
considered those matters as commented upon. (Id. at 10.) Booker then acknowledged
his signature, and represented that he read and understood the plea agreement and did
not require further explanations. (Id. at 11.)
Under oath, Booker stated that he faced penalties up to life imprisonment, a million
dollar fine, a minimum of a ten-year mandatory sentence and a hundred dollar assessment
fee and a five-year term of supervised release. (Case No. 10-CR-133, doc. 101 at 12.)
According to Booker there were no deals that were not set forth in the agreement. (Id. at
13.) Moreover, Booker agreed he was waiving his right to file pretrial motions. (Id. at 15.)
Significantly, Booker told this court— in his own words—that he picked up a young
lady walking on North Avenue. He did not further investigate whether she was 18. He
dropped her off at the hotel with Holly Arnold and then came back the next day to take
photos of her without clothing. (Case No. 10-CR-133, Doc. 101 at 20-21.) The following
exchange then took place:
Q.
A.

Did you then transmit these photographs in any way?
Yeah, I - - I downloaded them to the computer and posted them on
backpage.com.

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Q.
A.
Q.

A.
Q.
A.

And was there anything associated with these photographs which
would enable someone to communicate with you or with her?
Yes. A phone number.
All right. And what was the purpose behind sending these
photographs across the wires via the Internet and providing this
phone number?
Just to make some money.
To make money doing what?
Prostitution.

(Id. at 22.)
As a result of the post, the phone rang and Booker’s co-defendant (Holly Arnold) and the
victim engaged in prostitution with a third party. (Id. at 22-23.) Again, under oath, Booker
stated that he was pleading guilty because he was guilty, that he had not told the court
anything other than the truth, that he understood that he could not easily withdraw his plea,
and that he could not withdraw his plea simply because he disagreed with findings
regarding the sentencing guidelines. (Id. at 24.) No one “used any threat, force or
intimidation with respect to th[e] case or th[e] proposed plead of guilty.” (Id. at 24.)
Hence, with respect to each argument raised by Booker, the files and records
conclusively establish that he is not entitled to relief. 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 his contradiction.

United States v.

Peterson, 414 F.3d 825, 827 (7th Cir. 2005). Booker offers no explanation, let alone a
compelling explanation, for the contradiction. Like the defendant in Peterson, if Booker’s
representations to this court were true, his current submission—under penalty of perjury—
must be false. See id. at 827.

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Similarly, the Seventh Circuit rejected a request of an ineffective assistance of
counsel argument based on an alleged misrepresentation by counsel where, during the
plea colloquy, the court provided correct information regarding the defendant’s exposure
and the defendant stated that he was fully satisfied with his attorney’s representation
“belying his subsequent claims that [his attorney] did nothing to prepare from the start of
the case.” United States v. Bjorkman, 270 F.3d 482, 503 (7th Cir. 2011). The Seventh
Circuit noted that the defendant neither refused to enter his plea nor voiced any objection
when confronted with information concerning the sentence he could receive upon
conviction, thereby precluding any argument that he plead guilty in reliance on counsel’s
misinformation. Id. The Court of Appeals also cited the defendant’s statement under oath
that no one made any promises or assurances to induce him to plead guilty as support for
its finding that the trial court did not abuse its discretion by denying defendant’s motion to
substitute counsel. Id .
On this record and with nothing more to support his arguments, Booker cannot
assert credibly that counsel should have objected to the application of U.S.S.G.
§ 2G1.3(b)(3) or that either or both of his attorneys provided incorrect advice “with regard
to the charge and potential sentencing range.” Further, Booker contradicts himself by
contending that he raised these issues with Attorney Wilmouth prior to the plea while also
arguing that counsel prevented him from filing a motion to withdraw his plea after he
became aware of the erroneous advice. The bottom line is that Booker agreed to the
application of the enhancement, testified regarding his conduct which supported the
application of the enhancement, and stated that he had no issues that were not raised or
addressed by counsel.
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Lastly, Booker states that Attorney Mullins was removed from the case and that
Brian Fahl was appointed to represent him on appeal. Booker states:
Mr. Fahl never once contacted him regarding the issues to be raised in his
appeal. Despite Mr. Booker’s many attempts to contact him by phone or
through letters, Mr. Fahl never once answered his phone calls or replied to
his letters. Thus, Mr. Booker was unable to discuss potential appellate
issues with Mr. Fahl.
(Doc. 4 at 7.)
However, the record reveals that Attorney Mullins represented Booker on appeal
and throughout the briefing process. Attorney Fahl simply stepped in for oral argument
when Attorney Mullins was not available, but Booker never states that Attorney Mullins
refused to speak with him or discuss the appeal. Importantly, Booker has not identified any
issues that should have been raised beyond the § 2G1.3(b)(3) enhancement and there
was no argument under that guideline provision because of the admissions that Booker
made in the trial court. Additionally, the issues on appeal had been briefed by Attorney
Mullins, and Attorney Fahl could not cite or discuss any case at oral argument unless it had
been cited in a brief or drawn to the attention of the appellate court and opposing counsel
by a filing under Fed. R. App. P. 28(j). See 7th Cir. R. 34.
In his petition and memorandum, Booker contradicts himself with no explanation and
misrepresents the events in the underlying case. Booker is reminded that at sentencing,
he said he was “here to accept responsibility, you know, for everything that I’ve done in my
life that’s been so negative on everybody else.”

The record confirms that Booker

understood that counsel successfully negotiated a plea agreement that avoided the
15-year minimum penalty and avoided the two-level enhancement under § 3B1.1(c), and

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that his counsel zealously argued mitigation factors. Hence, there is no evidence of
deficient performance by counsel or prejudice to Booker.
Having ruled against Booker, the court must issue or deny a certificate of
appealability. 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. § 22 53(c)(2); Rule
11 of Rules Governing Section 2255 Proceedings. 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). Mindful of this standard and in the face of Booker’s blatant contradictions, the
court finds no basis for the issuance of a certificate of appealability.
IT IS ORDERED that Bookers motion to vacate, set aside, or correct sentence is
denied.
IT IS FURTHER ORDERED that Booker is denied a certificate of appealability.
IT IS FURTHER ORDERED that this case is dismissed.
Dated at Milwaukee, Wisconsin, this 25th day of February, 2016.
BY THE COURT

/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE

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