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Warner v. United States

August 21, 2007

ANTHONY T. WARNER, MOVANT,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

In 2004, Anthony Warner pled guilty to a charge of bank robbery. The Court found Warner to be a career offender within the meaning of Sentencing Guidelines section 4B1.1 and sentenced him to 151 months in prison, the low end of the applicable Guideline range. Warner has filed a pro se motion pursuant to 28 U.S.C. §2255 challenging his conviction and sentence. For the following reasons, the Court denies Warner's motion.

Facts

The Court takes the facts of this case from Warner's plea declaration and the government's summary of the evidence against Warner presented at his May 31, 2005 sentencing.

On the morning of March 19, 2004, Warner robbed the LaSalle Bank branch located at 7310 W. Dempster in Morton Grove, Illinois. Warner entered the bank, jumped over the counter holding a carpenter's knife, and announced, "This is a robbery."

He then asked a teller, "Where is the reserve?" Warner then took United States currency from a vault and three teller drawers, placed it in a bag, and left the bank. He escaped with over $31,000 in currency.

After Warner left the bank, he climbed into his vehicle and drove off. When the police were notified, they identified Warner's car and attempted to pull him over. Upon seeing the police vehicle, Warner accelerated and led officers on a high speed chase for three miles in residential Morton Grove. After driving down a dead-end street, Warner exited the vehicle and attempted to flee on foot but was apprehended.

On that same date, March 19, 2004, a complaint was filed in the Northern District of Illinois charging Warner with bank robbery. On April 14, 2004, a one count indictment was returned charging Warner with bank robbery. On April 21, 2004, Warner appeared before the Court for an arraignment hearing and entered a plea of not guilty.

On September 22, 2004, a superseding indictment was returned, specifying certain Sentencing Guideline enhancements that the government contended should apply. On October 5, 2004, Warner entered a plea of not guilty to the superseding indictment. On October 26, 2004, Warner withdrew his previously entered plea of not guilty and pled guilty to the superseding indictment.

Before sentencing, Warner was examined by Dr. Bernard Rubin, a psychiatrist, at the request of Warner's counsel. Dr. Rubin submitted a report containing findings that Warner suffered from acute stress disorder and a moderate to serious impairment of "global functioning." On May 31, 2005, the Court sentenced Warner to 151 months imprisonment after concluding that he was a career offender. See U.S.S.G. § 4B1.1. On June 9, 2005, Warner's counsel filed a motion to reconsider the sentence, which the Court denied.

Warner filed a timely notice of appeal on June 15, 2005. On March 30, 2006, the Seventh Circuit allowed Warner's appellate counsel to withdraw from the case pursuant to Anders v. California, 386 U.S. 738 (1967), because counsel could not identify a non-frivolous issue. The Seventh Circuit allowed Warner to proceed pro se but did not find any potential non-frivolous appellate issues and dismissed his appeal. United States v. Warner, Case No. 05-2770, 175 Fed. Appx. 52, 53 (7th Cir. Mar. 30, 2006). On April 11, 2006, Warner filed a petition for rehearing with the Seventh Circuit. On April 12, 2006, the Court denied the petition. On February 28, 2007, Warner filed the present section 2255 motion.

Discussion

Warner asserts several claims, which fall into two categories: the Court should have departed downward from the Guidelines sentencing range due to coercion and duress pursuant to Sentencing Guidelines section 5K2.12, and Warner was denied effective assistance of counsel at sentencing as guaranteed by the Sixth Amendment. The government argues that Warner's claims in the first category are procedurally barred because challenges to the Guidelines' application can be raised only on direct appeal and cannot be maintained in a section 2255 motion. The government also argues that the Court should deny those claims on the merits, because it considered and rejected the claim of duress and coercion and the Seventh Circuit found Warner's potential arguments on appeal to be frivolous. On the claim of effective assistance ...


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