The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On July 24, 2006, Petitioner, Patrick Spain, filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1). Petitioner subsequently filed a Memorandum in Support (#6). In his Motion (#1), Petitioner claimed that he was denied the effective assistance of counsel because (1) his counsel failed to object under United States v. Edwards, 397 F.3d 570 (2005) regarding the exact nature of the cocaine base, and (2) his counsel failed to call witnesses at sentencing so he could receive a departure under 18 U.S.C. § 3553(e). On September 22, 2006, the Government filed its Response to Petitioner's Motion Pursuant to 28 U.S.C. § 2255 (#9). The Government argued that Petitioner's claims are without merit and his Motion should be denied. Following this court's careful review of Petitioner's Motion and Memorandum, as well as the Government's Response, this court agrees with the Government's arguments. Therefore, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) is DENIED.
On February 18, 2004, Petitioner was charged by indictment with the offenses of: (Count 1) possession of 5 or more grams of crack cocaine with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1); (Count 2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and (Count 3) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On April 14, 2004, the Government filed notice of Petitioner's prior felony drug convictions pursuant to 21 U.S.C. § 851. On the same date, Petitioner pleaded guilty to the charges contained in the indictment. At the plea hearing, this court conducted a thorough colloquy with Petitioner, during which this court advised Petitioner of the charges against him, the elements of the offenses, and the potential penalties. This court's colloquy with Petitioner included a discussion of the fact that Petitioner, because of his prior felony drug conviction, faced a mandatory minimum sentence under the statute of 10 years to life imprisonment on Count 1, and a mandatory minimum consecutive sentence of 5 years imprisonment on Count 2, for a total mandatory minimum sentence of 15 years imprisonment. Petitioner stated that, knowing the possible penalties for his offenses, he still wanted to proceed with his plea of guilty. Petitioner also stated that no one had promised him anything regarding his sentence.
The prosecutor presented a factual basis for Petitioner's guilty plea and stated that, during the execution of a search warrant at Petitioner's residence, police officers found a loaded Smith & Wesson .357 revolver and four individual baggies of what turned out to be crack cocaine. The Government stated that the crack cocaine was in excess of five grams. The prosecutor also stated that Petitioner waived his Miranda rights after his arrest and stated that he had recently purchased eight stolen guns. The guns were subsequently retrieved by Petitioner's girl friend and turned over to law enforcement. This court asked Petitioner if he agreed with what the prosecutor said and Petitioner responded, "Yes, sir." Petitioner further agreed that he was pleading guilty because he was in fact guilty. The following exchange then took place between this court and Petitioner:
Q: Did you on January 15, 2004, in the Central District of Illinois, knowingly and intentionally possess five or more grams of a mixture and substance containing cocaine base, crack, with the intent to distribute it?
Q: You knew it was crack, and you knew it was a violation of the law?
This court then accepted Petitioner's guilty plea. There was no written plea agreement.
Sentencing was originally scheduled for July 23, 2004. After several continuances, the sentencing hearing was held on March 8, 2005. At sentencing, Petitioner's counsel stated that she had discussed the Edwards issue with Petitioner and they had decided not to pursue that issue. Therefore, Petitioner's counsel stated that there were no unresolved objections to the presentence investigation report. In response to a question by this court, Petitioner agreed that was correct. This court then stated that the advisory guideline range for Counts 1 and 3 was 188 to 235 months, and that the guideline sentence for Count 2 was 60 months, to run consecutive to the sentence imposed on Counts 1 and 3.
The prosecutor then addressed the court and stated that he was glad, for Petitioner's sake, that Petitioner had decided not to make a frivolous objection as to the identity and type of the controlled substance after pleading guilty to those facts. This court agreed and noted that it was clear on the record that Petitioner pleaded guilty to possessing crack. This court stated that this case did not present the same situation as existed in Edwards. The prosecutor then stated that he mentioned this "just for the record so that [Petitioner] is aware that the government's view is that he wisely chose not to assert that objection because had he done so he would not be receiving any sentencing recommendation from the government and, in the government's view, would have also jeopardized his acceptance of responsibility."
The prosecutor then stated that Petitioner had a significant criminal history and that, in this particular case, "he was involved in the possession and certainly the intention to distribute a non- insignificant amount of crack cocaine" and was also in possession of multiple firearms. The Government stated, however, that Petitioner agreed to cooperate, to his credit, and did provide information that was of some intelligence value to law enforcement. The prosecutor then stated that "most significantly, he did testify in a murder trial in Kankakee County." The prosecutor stated that it was not unreasonable to assume that Petitioner's testimony played a significant part in the jury reaching a guilty verdict in that case. The prosecutor stated that Petitioner's cooperation was of substantial assistance and warranted a sentencing recommendation under § 5K1.1 of the sentencing guidelines. The prosecutor stated that the Government would not be making a motion under 18 U.S.C. § 3553(e) to depart below the statutory minimum sentence. The prosecutor stated that the total minimum guideline sentence was 248 months. The prosecutor stated that the Government was recommending a 20 % downward departure for Petitioner's assistance and therefore recommended a 50 month departure to 198 months.
Petitioner's counsel then expressed extreme dismay that the Government was not making a motion under 18 U.S.C. § 3553(e) so that Petitioner's sentence could be lower than the statutory mandatory minimum of 180 months. Petitioner's counsel suggested that the Government may be in violation of Petitioner's cooperation agreement. This court then reviewed the cooperation agreement and agreed with the prosecutor that the agreement gave the Government discretion as to whether it would make a motion under § 5K1.1 or 18 U.S.C. § 3553(e). This court rejected Petitioner's counsel's argument that the Government could not do one without doing the other and found no breach of the cooperation agreement by the Government. Petitioner's counsel then requested a continuance because Petitioner was "shocked" by the Government's recommendation and failure to make a motion under 18 U.S.C. § 3553(e). This ...