The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
This case comes before the court on a motion made pursuant to
28 U.S.C. § 2255 to vacate or set aside a sentence of 292 months
imprisonment. I deny the motion for the reasons stated below.
On July 2, 1997, after a three month jury trial, Jathel Garrett
was found guilty of participating in an extensive conspiracy
among members of the Gangster Disciples, a street gang, to
possess and sell cocaine or crack cocaine. Mr. Garrett bore the
title of "regent" in the Gangster Disciples, signifying his
position in the gang hierarchy as one of authority. On July 22,
1998, Judge Marovich sentenced Mr. Garrett to 240 months (20
years) imprisonment. When the conviction was appealed to the
Seventh Circuit, the government cross-appealed, arguing that four
of the defendants, including Mr. Garrett, had erroneously been
granted downward departures in sentencing. The Seventh Circuit
affirmed the convictions and granted the government's
corss-appeal, remanding the cases of Mr. Garrett and his three
similarly situated co-defendants to this court for re-sentencing.
United States v. Jackson, 207 F.3d 910 (7th Cir. 2000), cert. denied,
531 U.S. 953 (2000) (Jackson I). The Supreme Court, although denying
certiorari, also remanded Jackson I to the Seventh Circuit as
to one defendant, Harold Jackson, with instructions to reconsider
in light of the rule announced in Apprendi v. New Jersey,
530 U.S. 466 (2000) (any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury and proved beyond a reasonable doubt).
On April 22, 2004, I held a sentencing hearing in Mr. Garrett's
case. At the hearing, he sought a downward adjustment in his
sentence on the ground of extraordinary rehabilitation, which the
government opposed. On its part, the government argued that under
the order of remand I had no option but to increase the sentence
to at least the 292-month minimum required by section 3B of the
Guidelines. I concluded that the government's position was
legally correct and sentenced Mr. Garrett to 292 months (24.5
years) in prison.
Mr. Garrett claims that he received ineffective assistance from
his counsel, namely, that she failed to argue vigorously at the
hearing for the application of the Apprendi rule and that,
subsequently, she advised him not to take a direct appeal from my
re-sentencing order, but to seek collateral review instead. He
also asserts that counsel was under a conflict of interest at the
time she advised against direct appeal, because to do so properly
she would have had to argue the incompetence of her own
Because facts relating to alleged ineffectiveness of counsel
are often not fully set forth in the appellate record and thus
not susceptible of being determined on appeal, the issue may be
raised for the first time by collateral attack under
28 U.S.C. § 2255. Galbraith v. United States, 313 F.3d 1001, 1007-08 (7th
Cir. 2002). In order to establish ineffective assistance of
counsel, a defendant has the burden of showing that counsel's
conduct fell below an objective standard of reasonableness and
that but for counsel's errors, there is a reasonable probability
that the outcome of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668 (1984). The courts have
been highly deferential to counsel in applying the Strickland
test. Counsel are presumed to have made reasonable strategic
judgments. Valenzuela v. United States, 261 F.3d 694, 698-99
(7th Cir. 2001). Moreover, where it is found that counsel's
alleged legal deficiency did not prejudice the defendant, the
first prong of the Strickland test need not be considered. U.S.
v. Fudge, 325 F.3d 910, 924 (7th Cir. 2003).
Mr. Garrett's allegations as to ineffective assistance of
counsel on grounds of conflict of interest are without merit.
They are belied by the record. His counsel, far from denying her
own culpability, asserted vigorously at the re-sentencing hearing
that she should have argued Apprendi on direct appeal. (Tr. of
4/22/04 re-sentencing hearing at 19 ("Well, [Apprendi] wasn't
raised because I believe Mr. Garrett had ineffective assistance
of counsel, and that would be me."). Counsel's mea culpa
notwithstanding, I do not find that Mr. Garrett has shown or
could show a reasonable probability that a timely invocation of
Apprendi, either on direct appeal or in connection with the
decision not to appeal my April 24, 2004 order, would have made
any difference in his ultimate sentence, and for that reason a
full analysis of whether counsel's conduct fell below an
objective standard of reasonableness is unnecessary. Fudge,
325 F.3d at 924.
Apprendi held that other than the fact of prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to the jury and
proved beyond a reasonable doubt. Apprendi did not hold that
sentences above the statutory maximum which are imposed because
of upward adjustments under the federal Sentencing Guidelines
must be supported by jury findings. Apprendi was not even
decided until two years after Mr. Garrett was convicted and he
had received the sentence which the Seventh Circuit, at the
government's urging, found to be clear error.
Mr. Garrett was first sentenced in 1998. His conviction was
affirmed in March 2000 and rehearing and rehearing en banc were denied in May of that year. Jackson I. Apprendi was argued in
March of 2000 and decided in June 2000. On October 30, 2000, when
the Supreme Court denied certiorari in Jackson I, it remanded
the case for consideration of the Apprendi issue as to
defendant Jackson, the only defendant who had raised that
argument on appeal.*fn1 In Jackson II, the Seventh Circuit
adhered to its decision affirming Jackson's thirty year sentence.
The court held that Jackson could not prevail on the Apprendi
issue, since he had not raised it at trial. The same is true of
Mr. Garrett. Jackson I is very clear: the Seventh Circuit
directed me to re-sentence Mr. Garrett for the sole purpose of
correcting the error in his prior sentence. Jackson I,
207 F.3d at 922.
Mr. Garrett also argues that his sentence must be reviewed
under the decisions in United States v. Booker, 125 S. Ct. 738
(2005) and United States v. Blaylock, 413 F.3d 616 (7th Cir.
2005). In Booker, the Court held that the Federal Sentencing
Guidelines, to the extent that they purported to require courts
to impose sentences greater than the statutory maximum on the
basis of facts not submitted to the jury and proved beyond a
reasonable doubt, violated the right to a fair trial conferred by
the Sixth Amendment to the Constitution. However, the Court did
not strike the Guidelines; it held only that they were not mandatory. The
Guidelines remain in effect as advisory standards by which to
review sentences for reasonableness. Booker, 125 S.Ct. at 764.
But even that is not required where the conviction became final
and the sentence was imposed prior to the decision in Booker.
The Seventh Circuit holds that re-sentencing in all criminal
cases decided prior to Booker's date of decision, but still
pending on direct appeal, is not mandatory. The relevant inquiry
is whether there was or was not plain error committed in the
original sentencing, and that where there is doubt, the most
efficient way to proceed is to order a limited remand in order to
determine from the judge who imposed the initial sentence whether
she would have meted out a lighter one had she known that the
Guidelines were merely advisory. United States v. Paladino,
401 F.3d 471, 483 (7th Cir. 2005). On the record before me, both at
the re-sentencing and now on this motion, even if that point had
not been procedurally defaulted, I could not say that I would
have imposed a lighter sentence had the issue been timely raised.
While it is true that neither the quantity nor the type of
narcotics involved in Mr. Garrett's case was submitted to the
jury and proved beyond a reasonable doubt, at the time that would
not have been the legal standard for testing the validity of his
sentence. There was ample proof in the record of both the type
and the quantity of the narcotics involved, so that the trial
judge's original sentence would not have been subject to attack under the
plain error standard. The Seventh Circuit laid that issue to rest
in Jackson I and Jackson II. It has also upheld the
government's contentions that the trial judge erred in granting
both upward and downward adjustments under the same section of
the Guidelines. Jackson I, 207 F.3d at 921.
Thus, Mr. Garrett's collateral attack on his sentence must fail
for two reasons: (1) he failed to preserve his Apprendi
argument by not filing a timely direct appeal from his
resentencing, (2) and even if he had done so, he could not have
prevailed because he is unable to show a reasonable probability
that preservation of that argument would have led to a different
outcome. No ...