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United States v. McIntosh

August 27, 2007


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


Robert McIntosh, who pled guilty to a narcotics charge and received a 188 month prison sentence, has filed a pro se motion under 28 U.S.C. § 2255 to vacate his conviction and sentence. For the reasons stated below, the Court denies four of McIntosh's seven claims but is unable to determine the other three based on the present record.


1. The Proceedings in McIntosh's Criminal Case

In August 2003, a grand jury indicted McIntosh on charges of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (the latter provision being the "armed career criminal" provision of the firearms laws, which provides for an enhanced sentence); possessing a machine gun, in violation of 18 U.S.C. § 922(o)(1); and distributing more than five grams of "mixtures containing cocaine base," in violation of 21 U.S.C. § 841(a)(1). United States v. McIntosh, No. 03 CR 742 (N.D. Ill.).

McIntosh pled guilty in March 2004 to distributing over five grams of cocaine base, pursuant to a written plea agreement. The factual basis for the guilty plea was recited in the plea agreement, and McIntosh orally reaffirmed its accuracy when he entered his guilty plea. See Mar. 31, 2004 Tr. at 18-19. In the plea agreement, McIntosh stated that in July 2003, he negotiated with an informant on several occasions to exchange what the plea agreement described as "crack cocaine" for hand grenades and a machine gun. See Gov't Resp., Ex. A (Plea Agr.) ¶ 5. On July 30, 2003, McIntosh met with the informant, who introduced McIntosh to an undercover law enforcement agent. The undercover agent displayed a machine gun and a hand grenade, and McIntosh handed the agent a plastic bag containing 18.7 grams of "cocaine base." Id.

In the plea agreement, McIntosh also stipulated to other "relevant conduct" that he agreed could be considered for purposes of sentencing. The plea agreement stated that on two occasions in July 2003, McIntosh had distributed a total of 10.3 grams of "crack cocaine" to the informant in return for $760. Id. ¶ 6. In sum, the plea agreement provided, "[t]he aggregate amount of cocaine involved in the conduct described in Paragraphs 5 and 6 is approximately 29.0 grams." Id.

McIntosh stipulated in the plea agreement that the base offense level was 28, representing his responsibility for between 20 and 35 grams of "cocaine base," and that the offense level should be increased by two levels because a firearm was possessed in connection with the offense. McIntosh also stipulated to several prior convictions and to the fact that he was a criminal history category VI offender under the Sentencing Guidelines. The plea agreement also contained a stipulation that McIntosh was a "career offender" pursuant to Sentencing Guidelines section 4B1.1 based on the offense of conviction and his two prior controlled substance distribution convictions, thereby increasing the offense level to 34. Finally, the plea agreement contained a stipulation that McIntosh was entitled to a three level reduction in the offense level due to acceptance of responsibility.

In the presentence report prepared by the Probation Office, the probation officer agreed with the parties' stipulations and recommended that the Court find the total offense level under the Sentencing Guidelines to be 31 and McIntosh to be a criminal history category offender. This produced a sentencing range of 188 to 235 months.

At the sentencing hearing on August 2, 2005, McIntosh gave a lengthy allocution in which he admitted that he had been dealing drugs for a long time but stated, in substance, that he had been importuned by the government's informant to engage in a drugs-for-weapons deal. He also said that the government could have arrested him for drug dealing much earlier but had not done so because it wanted to make a case involving a drugs-for-weapons deal. He stated that he was "taking responsibility" but claimed that the government had "crossed the line" and had "assisted me" in the drugs-for-guns deal by putting the guns into his car when the exchange was made. He also stated that he "felt threatened" when the deal was going down, suggesting that was why he had gone ahead to complete the deal.

The Court sentenced McIntosh to 188 months. The Court said that it was "sorely tempt[ed]" to deny McIntosh credit for acceptance of responsibility but declined to do so, saying that he had "accepted responsibility, although by about a hair." Aug. 5, 2005 Tr. at 36-37. The Court ordered that the entire sentence was to be served consecutively to a sentence of 131 months imposed by Judge Ronald Guzman in a narcotics case, pointing out that the two cases were "completely separate" and that McIntosh had engaged in the drugs-for-weapons transaction as he was "literally almost about to get on the bus to go to . . . prison" in the earlier case. Id. at 38.

McIntosh did not file a notice of appeal from the judgment of conviction.

2. McIntosh's Section 2255 Motion

a. McIntosh's Claims

On July 27, 2006, McIntosh filed a pro se motion under 28 U.S.C. § 2255 seeking to vacate his conviction and sentence, arguing that his attorney John Meyer failed to provide him with effective assistance of counsel in violation of his Sixth Amendment rights. In a memorandum accompanying his motion, McIntosh made several contentions in support of his motion. First, he argued, Meyer failed to tell him that he was not an "armed career criminal" and that § 924(e) thus did not apply to him. Second, he said, Meyer presented him with a draft plea agreement that classified him as an armed career offender, which McIntosh says was "intimidating" but which he nonetheless turned down. Third, McIntosh argued, when he signed the plea agreement that was ultimately filed with the Court, he did so under the assumption that he was admitting to a charge involving "cocaine base," not "crack cocaine." Fourth, McIntosh alleged, Meyer filed a motion to withdraw that did not include sufficient grounds and was therefore denied. Fifth, McIntosh said, Meyer "abandoned" him at the sentencing hearing and did not speak on his behalf. Sixth, McIntosh contended, Meyer failed to request an evidentiary hearing on the question of whether the narcotics were actually crack cocaine. Seventh, he alleged, he wrote to Meyer asking him "to reserve his rights on appeal" but that Meyer failed to do so. McIntosh Mem. (filed July 27, 2006) at 4-5.

b. The Government's Response and Trial Counsel's Affidavit

The government responded to McIntosh's motion, arguing that he had asserted no meritorious grounds for relief under section 2255. With its response, the government submitted an affidavit from attorney Meyer, who stated the following. After receiving the presentence report, he reviewed the records of McIntosh's prior convictions and determined that one of his earlier narcotics convictions was for a possession offense, not a delivery offense. Gov't Resp., Ex. C ΒΆ 2. As a result, Meyer concluded, McIntosh was not a "career offender" and had been incorrectly classified as such at sentencing in the earlier case before Judge Guzman. Id. He assisted McIntosh in preparing a section 2255 motion for that case, and as a result, Judge Guzman resentenced McIntosh to a lower prison term. Id. Meyer also stated that he advised McIntosh that he was not an "armed career criminal" for purposes of his case before this Court, but ...

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