The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On February 16, 2007, Petitioner, Cedric Washington, filed a pro se Motion to Vacate, Set Aside or Correct Sentence (#1) pursuant to 28 U.S.C. § 2255. On April 16, 2007, the Government filed its Response to Petitioner's Motion Pursuant to 28 U.S.C. § 2255 (#4). This court has carefully considered Petitioner's claims, the Government's Response, and the record in this case. Following this careful and thorough review, Petitioner's Motion to Vacate, Set Aside or Correct Sentence (#1) is DENIED.
On May 22, 2003, in Case No. 03-CR-20045, Petitioner was charged by indictment with the offense of knowingly and intentionally distributing 5 or more grams of a mixture and substance containing cocaine base (crack), a Schedule II controlled substance. The indictment stated that this offense occurred on April 9, 2003. On June 17, 2003, the Government filed a Notice of Prior Conviction pursuant to 21 U.S.C. § 851(a)(1). The Notice stated that Petitioner had a 1994 conviction of delivery of controlled substance in Champaign County and that this conviction "may qualify as a basis for a sentencing enhancement." On December 3, 2003, Petitioner was charged in a superseding indictment which included the original charge as Count 1 and added Count 2, which charged Petitioner with the offense of knowingly and intentionally distributing a mixture and substance containing cocaine base (crack), a Schedule II controlled substance. The indictment stated that the offense charged in Count 2 occurred on April 17, 2003.
A jury was selected on December 4, 2003, and the jury trial commenced on December 16, 2003. On December 17, 2003, the jury returned a verdict of guilty on both counts charged in the superseding indictment. A sentencing hearing was held on April 8, 2004. Petitioner had no objections to the Presentence Report (PSR). Based on the PSR, this court concluded that Petitioner was a career offender under United States Sentencing Guideline § 4B1.1. Petitioner had an offense level of 37 and a criminal history category of VI, making his sentencing range under the guidelines 360 years to life. This court sentenced Petitioner to a term of 420 months for Count 1 and 360 months for Count 2, with the sentences to run concurrently.
Petitioner filed a timely Notice of Appeal. On appeal, Petitioner argued that: (1) this court improperly used its inquiry power to bolster the credibility of prosecution witnesses; (2) the prosecutor's rebuttal argument at trial was profoundly unprofessional and prejudicial; and (3) the sentence this court imposed was contrary to the Sixth Amendment principles explained in United States v. Booker, 543 U.S. 220 (2005). The Seventh Circuit rejected Petitioner's first two arguments and confirmed his conviction. United States v. Washington, 417 F.3d 780 (7th Cir. 2005). The Seventh Circuit concluded that Petitioner was not prejudiced by this court's questioning of witnesses. See Washington, 417 F.3d at 783-86. The Seventh Circuit also concluded that, even accepting that some of the prosecutor's comments in rebuttal were improper, Petitioner's claim "founders in the face of the strong evidence of his guilt." Washington, 417 F.3d at 787. The Seventh Circuit stated that the "overwhelming evidence of guilt in this case eliminates any lingering doubt that improper comments by the prosecutor prejudiced [Petitioner]." Washington, 417 F.3d at 788.
As far as Petitioner's challenge to the sentence imposed, Petitioner argued that this court "erred by making a series of factual findings at sentencing that enhanced his sentence beyond what he admitted or the jury found." Washington, 417 F.3d at 788. The Seventh Circuit found that Petitioner had forfeited this argument "by not bringing it to the district judge's attention at sentencing." Washington, 417 F.3d at 788. However, the Seventh Circuit also found that the argument was without merit. The court noted that Petitioner's argument ignored the Supreme Court's holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998) "that prior convictions need not be proven to a jury beyond a reasonable doubt, a holding that was left undisturbed by Booker." Washington, 417 F.3d at 788. The Seventh Circuit did, however, conclude that Petitioner was entitled to a limited remand pursuant to the procedure explained in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). Washington, 417 F.3d at 788-89.
On limited remand to this court, this court permitted the parties to state their respective positions as to whether it should adhere to the original sentence in light of the now-advisory nature of the Sentencing Guidelines. In his position statement, Petitioner, through counsel, argued that his 420 month sentence in this case was "over-kill." Petitioner's counsel also stated that Petitioner was determined to be a career offender based upon three Champaign County convictions: (1) Intimidation (Case #97-CF-1023); (2) Intimidation (Case #03-CF-208); and (3) Possession of a Controlled Substance with Intent to Deliver (Case #94-CF-902). Petitioner's counsel argued that, in imposing sentence, this court did not consider the fact that Petitioner was initially sentenced to probation for his two intimidation convictions. Petitioner's counsel argued that it "is unlikely that Congress intended such minimal 'crimes of violence' to support career offender enhancements, especially where [Petitioner] was initially given probation for those convictions." Petitioner's counsel also argued that Petitioner's history of depression, history of substance abuse, past use of psychotropic medications and mental health counseling were mitigating factors which warranted resentencing and the imposition of a lower sentence.
In its position statement, the Government noted that, because this court concluded that Petitioner was a career offender, any other enhancements had no effect on his sentencing range. The Government argued that Petitioner "was convicted of two serious drug offenses after testifying falsely in his own defense." The Government further argued that Petitioner "has a serious criminal history and was designated as a career offender, the very type of person for whom Congress specifically stated should be sentenced 'at or near the maximum term authorized," citing 28 U.S.C. § 994(h). The Government noted that, at Petitioner's original sentencing, this court stated that a sentence 60 months higher than the low end of the Guidelines range was appropriate. The Government argued that, notwithstanding Booker, there was no reason for this court to alter its original sentence.
On October 12, 2005, this court entered an Opinion (#76). This court stated:
This court has considered the arguments of counsel, the advisory sentencing guidelines, the reasons for the original sentence, and the factors set forth in 18 U.S.C. § 3553(a). Based upon Defendant's criminal history and the nature of the offenses of which he was convicted in this case, this court finds that, had this court known that the guidelines were advisory, it would have imposed the same sentence. This court would, therefore, adhere to its original sentence in this case.
This court therefore advised the Seventh Circuit that it would have imposed the same sentence on Petitioner even if it was aware that the sentencing guidelines were merely advisory. On November 17, 2005, the Seventh Circuit issued an Order and affirmed the sentence imposed by this court.
As noted, on February 16, 2007, Petitioner filed a pro se Motion to Vacate, Set Aside or Correct Sentence (#1) pursuant to 28 U.S.C. § 2255. Petitioner argued: (1) that he should not have been sentenced under U.S.S.G. § 4B1.1 because his prior convictions were not included in the indictment or proved to the jury beyond a reasonable doubt; (2) that his counsel was ineffective at trial, at sentencing, and on appeal; and (3) the prosecutor failed to serve notice that the Government intended to seek enhanced penalties pursuant to 21 U.S.C. § 851.
On April 16, 2007, the Government filed its Response to Petitioner's Motion Under 28 U.S.C. § 2255 (#4). The Government argued that Petitioner's claims are entirely without merit. ...