Criminal Law

Dist. Ct. did not err in sentencing defendants to 69-month terms of incarceration on drug conspiracy charge arising out of defendants’ roles as middlemen in cocaine deal involving others. While defendants argued that Dist. Ct. erred in attributing five kilograms of cocaine to both men, where relevant transaction involved only one kilogram of cocaine that was actually sold, since Dist. Ct. could properly find that conspiracy was not limited to single kilogram of cocaine, where testimony and recorded conversations among other members of conspiracy included information regarding negotiation for five-to-ten kilograms of cocaine. Ct. rejected defendants’ claim that instant negotiation was not foreseeable to them as part of conspiracy, even though defendants noted that there no evidence that conspiracy involved multiple transactions that occurred over long period of time. Also, Dist. Ct. could properly deny defendants’ requests for downward adjustment based on claim that they played only minimal roles in conspiracy when linking drug supplier with drug buyers, after Dist. Ct. compared defendants’ roles with roles played by others who received such downward adjustment. Too, Dist. Ct. did not abuse its discretion by permitting non-party witness at sentencing hearing to consult with his attorney prior to defendants’ cross-examination of said witness, where Dist. Ct. has authority to implement procedures to avoid wasting time and to protect witnesses.

Dist. Ct. did not err in denying defendant’s Rule 60(b) motion to reopen his section 2255 petition, where Dist. Ct. had previously rejected defendant’s claim that his trial counsel was ineffective for failing to challenge Dist. Ct.’s finding that defendant's prior California drug conviction qualified as controlled substance offense pursuant to section 4B1.2(b) of USSG to support his 420-month sentence, as well as Dist. Ct.'s reliance on incorrect charging document in determining that defendant was career offender. Record showed that Ct. of Appeals had denied defendant’s request for certificate of appeal of Dist. Ct.’s denial of his 2255 petition, and defendant may not generally use Rule 60(b) motion to attack federal court’s prior resolution of habeas/section 2255 petition. As such, Dist. Ct. could properly conclude that defendant’s Rule 60(b) motion was unauthorized successive 2255 petition, where defendant had adequately presented his ineffective assistance of counsel claims in his initial section 2255 petition, and where Dist. Ct. had previously addressed and denied each of those arguments, thereby making instant Rule 60(b) motion duplicative of instant section 2255 proceeding.

Dist. Ct. did not err in sentencing defendant to 36-month term of incarceration on drug distribution charges, even though said sentence was based in part on inclusion in defendant’s criminal history defendant’s prior Wisconsin conviction of operating vehicle with detectable amount of restricted controlled substance in defendant’s blood. While defendant insisted that said conviction should not have been included in his criminal history because said conviction was his first violation, which, under Wisconsin law, did not carry criminal penalty, Ct. of Appeals found that said conviction could properly be counted in defendant’s criminal history, where: (1) Application Note 5 to section 4A1.2(c)(2) of U.S.S.G. provided that driving under the influence and similar offenses are always counted when calculating criminal histories; and (2) instant Wisconsin statute was similar to driving while under influence offense. Ct. rejected defendant’s argument that Wisconsin statute was not similar to driving while under influence offense because it did not include intoxication or impairment as element.

Dist. Ct. did not err in denying defendant’s habeas petition challenging his 40-year sentence on drug offenses, even though he argued that his trial counsel was ineffective, where: (1) prosecutor offered plea deal that capped his sentence at 25 years; (2) prosecutor mistakenly told defendant that he would be required to serve 85 percent of his sentence, even though defendant could be released after serving only 50 percent of his sentence; (3) defendant would have taken plea deal if he had known about 50 percent rule; and (4) his trial counsel failed to alert him to prosecutor’s misstatement of law, and defendant eventually took case to trial, where he received 40-year sentence. Defendant procedurally defaulted on instant claim by failing to raise it in his direct appeal or in his initial post-conviction petition, and state courts thereafter refused to hear instant claim that was contained in his successive post-conviction petition. Moreover, although Martinez, 566 U.S. 1, and Trevino, 569 U.S. 413, permit review of defaulted ineffective assistance of counsel claims under certain circumstances, defendant failed to show that Illinois imposes sort of restrictive procedural rules on ineffective assistance of counsel claims that would warrant review of instant defaulted claim. Ct. further noted that Illinois gives prisoner meaningful opportunities to litigate claims of ineffective assistance of counsel on direct review.