FRANKLIN, DAVID v. USA

Filing 9

ORDER denying 1 MOTION to Vacate Sentence per 28 USC 2255. Signed by Chief Judge Barbara B Crabb on 3/23/2009. (arw)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, O PIN IO N AND ORDER Plaintiff, 0 8 - cv -6 7 8 - b b c 0 6 - c r -1 8 9 - j c s v. D AV ID L. FRANKLIN, D efendan t. --------------------------------------------D e fen dan t David L. Franklin has filed a timely motion under 28 U.S.C. § 2255, se e k in g a reduction in the sentence imposed on him on April 11, 2007 by the Honorable Jo hn C. Shabaz and alleging that his court-appointed counsel was constitutionally ineffective. Because defendant has failed to show that his sentence is invalid in any respect an d because he has not shown that any act or omission by his attorney prejudiced him, his m otio n must be denied. Defendant was sentenced to a term of 295 months in prison on his plea of guilty to a one-count indictment charging him with possessing with intent to distribute 50 grams or m o re of cocaine base. The plea agreement provided that defendant was subject to a

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m an datory minimum sentence of 20 years. It showed that defendant was a career offender an d that his relevant conduct involved both powder and crack cocaine equivalent to at least 10,000 but less than 30,000 kilograms of marijuana, under § 2D1.1, giving him an advisory gu id elin e imprisonment range of 262-327 months. The career offender status was based on a prior felony drug conviction (possession with intent to deliver cocaine) and two crimes of v i o lence (felony substantial battery and felony escape). The drug quantity was based on bo th cocaine base and powder cocaine recovered from defendant's residence and from his co-con spirator's apartment. At defendant's sentencing, his attorney argued vigorously for a sentence at the statu to ry minimum term of 20 years and urged the court not to treat the sentencing guid elin es as mandatory. Judge Shabaz found that the guidelines were calculated correctly and said that he saw no reason to vary from the advisory guideline range. He found that defendant's criminal conduct demonstrated a need to protect the community and noted that defendant had not been deterred by a previous one-year jail term when he was 31 and had failed to get any help for his addiction to controlled substances. O n appeal, defendant's attorney argued that the sentencing court had erred in presum ing that the guidelines range was reasonable. He contended that the sentence the co urt imposed was unreasonable because the court had not given meaningful consideration to the mitigating factors in defendant's case. The court of appeals disagreed with defendant,

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findin g that the sentencing court had understood its discretion, given defendant's arguments co n sid eratio n , taken into account both mitigating and aggravating factors on the record and stated sufficient reasons for imposing the sentence it chose to impose. United States v. Fran klin, 2007 WL 4455433 (7th Cir. Dec. 20, 2007) (unpublished).

OPINION A lth ou gh defendant lists a number of alleged errors or omissions on the part of cou nsel, he has produced nothing to show how any of them might have prejudiced his d efen se or contributed to a higher sentence than he would have received otherwise. For exam p le , he says that his counsel told him he knew how to prevent defendant from doing a lot of time. Such a statement would be evidence of bad judgment on counsel's part but not of ineffective performance. To make that showing, defendant must show exactly what his atto rn ey did or failed to do for him and how it prejudiced him. Strickland v. Washington, 46 6 U.S. 668, 688 (to show ineffectiveness, "the defendant must show that counsel's representation fell below an objective standard of reasonableness" as well as show that cou nsel's deficiencies prejudiced defense). Vague allegations about counsel's misplaced em pty boasting do not suffice. The same is true of defendant's claim that his attorney filed a "canned appellate brief." That would not be grounds for relief unless defendant could sh ow that the brief never touched on the issues a reasonable attorney would have raised on

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his behalf. Defendant has not submitted the allegedly canned brief, but the court of appeals addressed the matters that defendant says now that his counsel failed to raise: the

im pro perly mandatory nature of the sentencing guidelines scheme; the improper presum ption of reasonableness given to within-guidelines sentences; and defendant's claim that his sentence was greater than necessary to comply with the purposes of federal s e n te n c i n g . The fact that the court discussed these is evidence that counsel raised them, w hether his brief was original or borrowed from another source. Defendant accuses his attorney of not having carried out an adequate pre-trial i n v e s t i g a t io n . It is settled law that such an accusation is meaningless unless it is

acco m p an ied by specific examples of exculpatory evidence that an adequate investigation w o u ld have turned up. Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003) (m ovant must provide the court "sufficiently precise information, that is, a comprehensive show ing as to what the investigation would have produced"). Defendant cannot leave it to th e court's imagination; he must identify exactly what counsel overlooked. He has made no effort to do so. The same analysis applies to defendant's allegation that his counsel was ineffective b ecau se he failed to object to inaccuracies in the presentence report. Defendant has not identified any of the so-called inaccuracies. Therefore, his allegation need not be addressed.

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D efendant's challenges to his representation falls for another reason, as well. He cannot show that anything about his sentence is invalid at the time it was imposed. He was s e n ten ced before the crack amendment went into effect, but it would not have applied to h im because he was sentenced as a career offender and was therefore ineligible for the twolevel downward adjustment introduced by the crack guidelines amendments. United States v. Forman, 563 F.3d 585 (7th Cir. 2009) (persons sentenced as career offenders are not entitled to downward adjustment under crack cocaine amendment). In a supplemental filing with the court, defendant argues that he was classified im pro perly as a career offender because one of the predicate offenses for finding him a career offender was for a crime of not returning to the Dane County Huber Law Center. If defendan t were being sentenced today, that offense would not count as a predicate offense. The Supreme Court held in Chambers v. United States, 129 S. Ct. 687 (2009), that a court cann ot count as a predicate offense an escape that does not have as element the use, attem p ted use, or threatened use of physical force and does not involve conduct presenting a serious potential risk of physical injury to another. However, Chambers has no effect on defendant's sentence. First, the holding is not retroactive and defendant's sentence became final before the case was decided. Second, defendant had two other offenses that would suffice as predicates: one for felony drug distribution and one for felony battery of his wife. T hus, even if Chambers did have retroactive effect and wiped out defendant's escape offense,

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he would still be classified as a career offender. T hese leaves defendant's final objection to his sentence, which is that it is invalid u nd er Kimbrough v. United States, 128 S. Ct. 558 (2007), and Gall v. United States, 128 S. Ct. 586 (2007). In Kimbrough, the Court held that sentencing courts were free to take into consideration the disparity between sentences for crack cocaine and those for powder cocain e when determining a sentence. In Gall, the Court held that appellate courts are to review sentences under an abuse-of-discretion standard, whether the sentences imposed are inside or outside the guidelines range. The court of appeals' recent decision in United States v. Millbrook, 553 F.3d 1057 (7th Cir. 2009), controls this question. In Millbrook, the court of appeals held that

"Kim bro ugh's discussion of a district court's discretion to take into account the crack/powder disparity is of no consequence to a defendant sentenced under § 4B1.1 as a career offender." Id . at 1067. The crack and powder disparities in the guidelines do not affect the sentencing of a career offender because his base offense level is determined, "not by drug quantity, but by the statutory maximum applicable to his offense under 21 U.S.C. § 841(b)(1)(A)." Id. (citing U.S.S.G. § 4B1.1(b)). T h e court recognized that the ultimate guideline range remains advisory, but it found n o th in g in the record of Millbrook's case to suggest that the district court had not understood its authority to depart from the guideline range. The sentencing court had

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considered the § 3553(a) factors, calculated Millbrook's guideline range correctly and made an "`individualized assessment based on the facts presented.'" Id. at 1067 (citing Gall v. U nited States, 128 S. Ct. 586, 597 (2007)). A s a career offender, defendant is not eligible for any reduction in his sentence below the mandatory minimum sentence of 20 years. As to whether he should have received a sen ten ce lower than 295 months, nothing in the record suggests that Judge Shabaz did not co n sid er the § 3553(a) factors, did not calculate defendant's sentence properly and did not m ak e "an individualized assessment based on the facts presented." In the statement of reaso n s he gave at sentencing, he said explicitly that he declined to sentence defendant below the advisory guideline range. He found that defendant's criminal conduct and prior record d em o n strated a need to protect the community from further criminality on his part and achieve parity with the sentences of similarly situated defendants. un derstoo d his authority to depart from the guideline range. It is an oddity of this case that the court of appeals decided defendant's appeal only days after Kimbrough was decided; presumably it had written the opinion before the S u prem e Court released Kimbrough. Defendant's counsel failed to move for reconsideration, b ut, as I have explained, there is no reason to think that his failure to do so caused defendant an y prejudice. It is unlikely that a motion for reconsideration would have been granted. given the court's acknowledgment that Judge Shabaz had exercised his discretion properly when It is clear that he

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sentencin g defendant. It is unnecessary to reach a related question, which is whether defense counsel said eno ugh at sentencing to preserve a Kimbrough objection. Not only would it have been futile, as explained above, but a failure to raise the Kimbrough issue would not constitute i neffectiveness. "The Sixth Amendment does not require counsel to forecast changes or advan ces in the law." Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir.1993). See also V a len zu ela v. United States, 261 F.3d 694, 700 (7th Cir. 2001). Counsel had not way of kn ow ing at the time of the appeal that the Court would reach the decision it did in that case. In summary, I conclude that defendant has failed to show any reason why his sentence should be vacated.

ORDER IT IS ORDERED that defendant David Franklin's motion to vacate, set aside or co rrect his sentence under 28 U.S.C. § 2255 is DENIED. E n tered this 23d day of March, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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