ROMERO, RAUL v. USA

Filing 2

ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255 Signed by Judge Barbara B Crabb on 12/12/07. (mmo),(ps)

ROMERO, RAUL v. USA

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Case: 3:07-cv-00685-bbc

Document #: 2

Filed: 12/12/2007

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IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, ORDER Plaintiff, 3 : 0 7 -c v-0 0 6 8 5 - b b c 3:04-cr-00164-bbc v. R AU L ROMERO, D efendan t. --------------------------------------------D e fen dan t Raul Romero has filed a motion for postconviction relief pursuant to 28 U .S.C . § 2255. He contends that he was sentenced illegally when the court took into con sideration matters not found by the jury or admitted by him in his plea agreement. D efendan t objects to the court's determination that his relevant conduct included at least 2.5 kilograms of cocaine, that he obstructed justice by beating a potential witness and that he did not accept responsibility for his criminal conduct. Unfortunately for defendant, he cannot proceed on his postconviction motion because he either raised or could have raised in his direct appeal all of the issues he seeks to raise here. "`A § 2255 motion is "neither a recapitulation of nor a substitute for a direct

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Case: 3:07-cv-00685-bbc

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app eal.'" Varela v. United States, 481 F.3d 932, 935-36 (7th Cir. 2007) (quoting McCleese v . United States, 75 F.3d 1174, 1177 (7th Cir. 1996). In the absence of changed

circum stances (none of which are present in this case), issues that were raised on direct app eal may not be reconsidered on a § 2255 motion. Id. (citing Olmstead v. United States, 55 F.3d 316, 319 (7th Cir.1995); Belford v. United States, 975 F.2d 310, 313 (7th Cir. 19 92 )). D e fen dan t appealed from his sentence, raising the issue of the amount of cocaine for w h ich he was held responsible and the court's refusal to give him a three-level reduction for acceptance of responsibility. He did not contest the court's enhancement of his offense level for obstruction of justice. The court of appeals found that the amount of cocaine for which he was held responsible was well supported by the evidence. In fact, the court questioned w hy the United States Attorney had "acquiesced to the under-reporting of [defendant's] relevant conduct in the PSR." United States v. Romero, 469 F.3d 1139, 1149 (7th Cir. 20 06 ). The court of appeals found ample support for denying defendant a reduction in his offense level for acceptance of responsibility. For the same reasons that it found that it was ap pro p riate to conclude that defendant had been involved in more than 2.5 kilograms of cocain e, it agreed with this court that his challenge to the refusal to give him an acceptance of responsibility reduction was frivolous.

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Case: 3:07-cv-00685-bbc

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N o w that the court of appeals has decided these matters, defendant is barred from raising them again for consideration. The court of appeals' decision is the law of the case, not subject to review by a lower court. Prewitt v. United States, 83 F.3d 812 (7th Cir. 19 96 ). D efendan t did not raise on appeal the issue of the two-point enhancement of his sen ten ce for obstructing justice, but could have done so. Therefore, he is barred from raising it in a postconviction motion unless he can show both cause and prejudice for his failure to assert it on appeal or if a refusal to consider the issue would lead to a fundamental m iscarriage of justice. Reed v. Farley, 512 U.S. 339, 354 (1994); Prewitt, 83 F.3d at 816. D efendan t says that his appellate counsel was ineffective for failing to raise the issue. In some situations, this allegation would be enough to provoke further inquiry, but not in th is one. Even if counsel's failure to make the argument constituted good "cause" for defendan t's failure to raise the issue on appeal, it would not amount to prejudice. This is because the government had strong and compelling evidence that defendant had participated in the beating of Ramon Cruz, a potential witness to defendant's drug dealing. Even assu m in g that appellate counsel failed to raise this issue by omission, rather than after evaluating its chances of success, counsel's failure would not constitute prejudice, given the strength of the evidence against defendant. Police reports and Cruz's statements to the p o lice supported the conclusion that defendant and nine other individuals attacked Cruz and

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Case: 3:07-cv-00685-bbc

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that defendant had stuck a pistol into Cruz's mouth, after which Cruz was pistol whipped. As to defendant's contention that it was error for the court to enhance his sentence o n the basis of information that he had not admitted in his plea agreement, this argument w as foreclosed by the United States Supreme Court in United States v. Booker, 543 U.S. 22 0 (2005). In that case, the Court held that the sentencing guidelines were advisory in na ture and because they did not mandate the imposition of a particular sentence, they did no t limit a sentencing judge's authority to exercise broad discretion in sentencing. Under Bo oker, it is proper for a judge to consider facts about the defendant that are relevant to the sentencin g decision but have not been found by the jury. Id. at 234.

ORDER IT IS ORDERED that defendant Raul Romero's motion for postconviction relief pursu an t to 28 U.S.C. § 2255 is DENIED for defendant's failure to show that he is in custody illegally. E n tered this 12th day of December, 2007. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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