The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before the court on the motions of Randall Re and Anthony Calabrese to vacate, correct, or set aside their sentences pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motions are denied. All other motions are denied as moot.
In 2002, Calabrese and Re were indicted for conspiring to commit extortion in violation of 18 U.S.C. § 1951 ("the Hobbs Act") and conspiring to travel to commit extortion in violation of 18 U.S.C. § 1952. The two were tried together before a jury. Re was represented by Richard Bueke and Terry O'Donnell; Calabrese was represented by Joseph Lopez. Both were convicted on both counts. On April 15, 2003, both defendants were sentenced to 87 months' imprisonment on Count I and a concurrent sentence of 60 months' imprisonment on Count II. Each was also fined $12,500.
Defendants timely appealed their convictions and sentences to the Seventh Circuit. Re was represented by John Moran, Calabrese by Sean Burke. On January 12, 2005, the Supreme Court decided that the federal Sentencing Guidelines were unconstitutional if applied in a mandatory fashion in United States v. Booker, 543 U.S. 220. On March 22, the Seventh Circuit considered Re and Calabrese's direct appeals and affirmed their convictions. United States v. Re, 401 F.3d 828, 837 (7th Cir. 2005). However, because the appeals of the sentences imposed were pending when Booker was decided, the court ordered a limited remand to allow this court to consider whether the sentence imposed would have been the same if this court had known that the Sentencing Guidelines were advisory according to the procedure set forth in United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005). After receiving briefing and hearing argument on the Paladino issue, this court concluded that the same sentences would have been imposed even if the guidelines had been known to be advisory. United States v. Re, 02 CR 448 (N.D. Ill. June 9, 2005). The Seventh Circuit then affirmed both sentences. U.S. v. Re, 419 F.3d 582, 584 (7th Cir. 2005).
Re and Calabrese petitioned the Supreme Court for a writ of certiorari; the request was denied on April 3, 2006. In March 2007, the defendants filed the instant motions seeking relief under § 2255.
Section 2255 permits a prisoner to "move the court which imposed the sentence to vacate, set aside, or correct the sentence" on the grounds that the sentence was imposed in violation of the Constitution or laws of the United States, or that "the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" Such collateral relief is only available, however, where there was "an error of law that is jurisdictional, constitutional, or constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.' " Bischel v. United States, 32 F.3d 259, 263 (7th Cir.1994) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir.1991)). In evaluating a § 2255 petition, the district court must review the record and draw all reasonable inferences in favor of the government. Carnine v. United States, 974 F.2d 924, 928 (7th Cir.1992).
Re's petition advances three grounds for relief: first, that O'Donnell rendered ineffective assistance, rendering his sentence illegal;*fn1 second, that the sentence imposed was illegal in light of the decision in Booker; third, that the government's theory of depletion of assets on the Hobbs Act claim was so flawed that any conviction resulting therefrom represented a fundamental miscarriage of justice. Calabrese's petition mirrors Re's, with the exception of the ineffective assistance claim and the challenge to the fine. We examine each ground in turn, focusing first on those common to both petitions.
A. Legality of the Sentences Imposed
Each petition contends that the sentences imposed run afoul of the Supreme Court's ruling in Blakely v. Washington, 542 U.S. 296 (2004). According to Re and Calabrese, Blakely precluded the application of a nine-level enhancement of the base offense level. The two contend that this enhancement violates their Sixth Amendment rights because the facts underlying the determination were found by a preponderance of the evidence standard at sentencing rather than beyond a reasonable doubt by the jury. They opine that the resulting sentences are in excess of the statutory maximum resulting from facts found by the jury in the original verdict.
To the extent that Re and Calabrese's argument is a challenge to the application of the Sentencing Guidelines, the issues they raise are fodder for direct appeal, not a § 2255 motion. United States v. Redding, 104 F.3d 96, 99 n.3 (7th Cir. 1996). To the extent that they can be construed as a constitutionally based challenge, the injury has already been remedied. The constitutional issues Re and Calabrese advance were addressed in the context of the Federal Sentencing Guidelines in Booker, and the constitutional infirmities of the previous system were identified and remedied. Paladino provided the mechanism for preventing a constitutional injury occurring to defendants like Re and Calabrese whose cases were pending on direct appeal at the time of the Booker decision. Both defendants in this case had the benefit of consideration of ...