The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Larry L. Jordan (Doc. 1). The government responded to the Petitioner's Motion. For the following reasons, the court DENIES the Motion.
Petitioner was indicted on July 8, 2003, in the United Stated District Court for the Southern District of Illinois for conspiracy to distribute a mixture and substance containing cocaine base, "crack cocaine," in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(C), and § 846. On June 16, 2004, an Information to Establish Prior Conviction was filed, pursuant to 21 U.S.C. § 851. Petitioner entered an open plea of guilty on June 17, 2004. On June 22, 2004, Petitioner's attorney filed a motion to withdraw guilty plea. Petitioner's attorney, Justin Kuehn, stated in the motion that he had wrongfully advised Petitioner regarding a mandatory minimum sentence. On July 8, Petitioner withdrew his motion to withdraw guilty plea.
Petitioner was sentenced on May 31, 2005. The Court sentenced Petitioner to 262 months imprisonment, a fine of $500, a special assessment of $100, and ten years supervised release. Petitioner was also ordered to participate in treatment for narcotic or alcohol addiction upon his release from prison. On appeal, Petitioner argued the following 1) the Court was not adequately justified in ordering him to participate in alcohol/narcotic addiction program because he does not use alcohol or drugs, 2) the Court improperly based his sentence on a prior conviction, 3) the Court did not take into account the disparity between guideline ranges for crack offenses and powder cocaine offenses, 4) his sentence was unreasonable under U.S. v. Booker, 543 U.S.220 (2005). The Seventh Circuit affirmed his conviction and sentence on May 11, 2007. United States v. Jordan, 485 F.3d 982 (7th Cir. 2007). The Supreme Court denied Petitioner's application for a writ of certiorari on October 1, 2007. United States v. Jordan, 128 S.Ct. 312 (2007), reh'g denied, 128 S.Ct. 827 (2007). On March 6, 2008, Petitioner filed this timely motion pursuant to 28 U.S.C. § 2255.
The Government filed a § 851 enhancement one day prior to Petitioner's change of plea hearing. At the plea hearing, Attorney Kuehn asked for a moment to explain the § 851 enhancement to Petitioner before Petitioner entered his guilty plea. Attorney Kuehn told Petitioner the § 851 enhancement meant Petitioner's sentencing range would be zero to thirty years, but it would not affect Petitioner's statutory minimum sentence.
Petitioner stated to the Court that he wished to plead guilty. Additionally, Petitioner stated that he understood the Court could not determine what guidelines applied to Petitioner's sentence until the Court reviewed the Presentence Investigation Report. The Court asked Attorney Kuehn for Petitioner's position on relevant conduct. Attorney Kuehn answered as follows:
To be as candid as I can, I've talked with Mr. Jordan at length about this. He understands that the weight will affect what sentence he receives. We've gone through some possibilities depending on how the weight comes out, but before I look at the presentence report myself, I, quite frankly, don't know exactly what it's going to come out yet either.
Immediately after the plea hearing, Attorney Kuehn consulted with colleagues and determined that Petitioner's sentence would likely be between 20 and 30 years. Petitioner's mandatory minimum sentence would be 20 years if the Court found that Petitioner's offense involved more than 50 grams of crack cocaine. Attorney Kuehn contacted Petitioner, and Petitioner decided to withdraw his guilty plea and proceed to trial. On June 22, 2004, Petitioner filed a motion to withdraw his guilty plea.
On July 8, 2004, Attorney Kuehn, Petitioner, and Assistant U.S. Attorney Amanda Robertson were present for the hearing on the motion to withdraw guilty plea. Attorney Kuehn informed the Court that Petitioner had reconsidered withdrawing his guilty plea. The Supreme Court had issued Blakely v. Washington on June 24, 2004. In Blakely, the Supreme Court held that a trial court could not enhance a statutory maximum sentence based on factual issues not determined by the jury. Blakely v. Washington, 542 U.S. 296 (2004). Attorney Kuehn explained to the Court that ultimately, the Supreme Court may find that the Blakely ruling also applied to statutory minimum sentences. If so, the Court would not be able to impose a statutory minimum on Petitioner based on the Court finding that more than 50 grams of crack cocaine were involved in Petitioner's offense. Attorney Kuehn had explained his reasoning to Petitioner. In addition, Attorney Kuehn had advised Petitioner there was a possibility he might face a superseding indictment if he withdrew his guilty plea.
Under the circumstances, Petitioner informed the Court that he wanted to persist with his guilty plea. Attorney Kuehn advised the Court that Petitioner understood that a guilty plea was a "roll of the dice," because it was too early to know if the Supreme Court would apply the Blakely decision to statutory minimum sentences. The Court asked Petitioner if he understood that under the circumstances, persisting with a guilty plea was a "roll of the dice." Petitioner answered affirmatively. The Court asked Petitioner if he understood that, ultimately, he may face a statutory minimum sentence of 20 years if he persisted with his guilty plea. Again, Petitioner answered affirmatively.
At the sentencing hearing, Attorney Kuehn argued the statutory 20-year mandatory minimum should not be applied to Petitioner's sentence because of the Supreme Court's then-recent decisions in Blakely v. Washington and United States v. Booker. Attorney Kuehn contended that the Court could not constitutionally impose the mandatory minimum upon Petitioner based upon a ...