The opinion of the court was delivered by: CHARLES NORGLE, District Judge
Before the court is Anselmo Carrillo's Motion to vacate, set
aside, or correct his sentence brought pursuant to
28 U.S.C. § 2255. Movant, Anselmo Carrillo ("Carrillo"), challenges his
sentence for possession with intent to distribute cocaine, and
conspiracy with intent to distribute cocaine. For the reasons
stated below, the motion is denied.
In August 1998, Ross Braatsch ("Braatsch"), the owner of an
electronics store, agreed to provide information to Drug
Enforcement Administration ("DEA") agents regarding certain
customers whom Braatsch suspected were involved in drug
trafficking. Braatsch's store sold and installed hidden
compartments in cars, called "traps," which could only be opened
by remote control. These traps are commonly used for legitimate
purposes, such as the storage of car stereo components. However, Braatsch informed DEA agents that one of his
customers, Tavo Perez ("Perez") had these traps installed in
twelve different cars, and Braatsch suspected that Perez was
using the traps to transport drugs. Braatsch identified Carrillo
as one of the individuals who came to pick up Perez's cars after
the traps had been installed. Braatsch also indicated to the DEA
agents that he had shown Carrillo how to operate the traps.
In December of 1998, Perez brought two of his cars, including a
red Mercury Sable, into Braatsch's store for repairs. While the
Sable was being repaired, a DEA agent confirmed that it contained
a trap and recorded the license plate number. The DEA then began
conducting surveillance of Perez's residence. On January 27,
1999, the DEA observed the red Mercury Sable at Number 20, West
327 Belmont Place in Addison, Illinois and set up surveillance on
that location as well. At 3:45 P.M. on that date, Carrillo and
two other men arrived at the Belmont Place location. Carrillo
then got into the Sable and drove to 109 Clarendon Street in
Addison. Initially, the Sable was parked on the driveway of the
residence, but the DEA agents later noticed it was no longer on
the driveway, and the garage door had been closed.
Approximately two hours after the cars arrived at the
residence, Carrillo was seen driving away in the red Mercury
Sable. Two other men then left in a red Toyota pick-up truck. The
DEA agents attempted to follow the Toyota but it was driven
evasively, and the agents lost the car. Approximately twenty
minutes later they found the Toyota in a movie theater parking
lot, and there were now three men inside the cab of the truck.
The red Mercury Sable was also parked in the same lot. The Toyota
left the parking lot and was again driven in an evasive manner.
Upon returning to the movie theater parking lot, the truck was
stopped by the DEA agents. At the time the Toyota was stopped, Carrillo was in the
passenger seat. On his person, the agents found a garage door
opener for 109 Clarendon, a house key to the basement at 109
Clarendon, and a computer chip that operated the trap inside the
red Mercury Sable. Carrillo and the other two men were arrested
and taken to the Addison Police Department. Carrillo identified
himself using the alias of "Joshua Rivera," and had a driver's
license in that name. During questioning by investigators,
Carrillo gave multiple stories regarding his activities that day.
Upon receiving consent to search the Sable, the DEA agents
found 48 one-kilogram bricks of cocaine inside the car's trap.
The agents also received consent to search 109 Clarendon and 20
West 327 Belmont. The agents found a trap in the basement floor
of 20 West 327 Belmont that contained two kilograms of cocaine, a
scale, a semi-automatic handgun, ammunition, and drug ledgers.
Carrillo and another Defendant, Francisco Soto, were indicted for
possession with intent to distribute cocaine in violation of
21 U.S.C. § 841(a)(1), and conspiracy with intent to distribute
cocaine in violation of 21 U.S.C. § 846.
On December 10, 1999, a jury found Carrillo guilty of
possession with intent to distribute cocaine, and conspiracy with
intent to distribute cocaine. Carrillo called no witnesses on his
behalf. On June 21, 2000, the court sentenced Carrillo to 151
months imprisonment and five years supervised release. On appeal,
the Seventh Circuit affirmed both the conviction and sentence.
Carrillo, 269 F.3d at 771.
On November 6, 2002, Carrillo filed his Motion under
28 U.S.C. § 2255. The court then ordered the government to file a Response
to Carrillo's Motion. On October 31, 2003, the government filed
its Response. Finally, Carrillo filed his Reply to the
Government's Response on December 4, 2003. Carrillo's Motion is
fully briefed and before the court. II. DISCUSSION
Section 2255 allows a person convicted of a federal crime to
vacate, set aside, or correct his or her sentence. 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). The statute states:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
28 U.S.C. § 2255 ¶ 1. If the court determines that any of these
grounds exists, it "shall vacate and set the judgment aside and
shall discharge the prisoner or resentence him or grant a new
trial or correct the sentence as may appear appropriate."
28 U.S.C. § 2255 ¶ 2. In making that determination, the court must
review evidence and draw all reasonable inferences from it in a
light most favorable to the government. See United States v.
Galati, 230 F.3d 254
, 258 (7th Cir. 2000); Carnine v. United
States, 974 F.2d 924
, 928 (7th Cir. 1992).
Section 2255 petitions are subject to various bars, including
that of procedural default. They are "neither a recapitulation of
nor a substitute for a direct appeal." McCleese v. United
States, 75 F.3d 1174, 1177 (7th Cir. 1996) (citations omitted).
Thus, a § 2255 motion cannot raise: (1) issues that were raised
on direct appeal, unless there is a showing of changed
circumstances; (2) non-Constitutional issues that could have been
raised on direct appeal, but were not; and (3) Constitutional
issues that were not raised on direct appeal. See Belford ...