The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Anthony Redmond has filed a pro se motion under 28 U.S.C. § 2255 seeking to vacate his conviction and sentence for armed robbery and related offenses. For the reasons stated below, the Court denies his motion.
Anthony*fn1 and Tracy Redmond were charged along with other defendants in a three-count indictment. Count one charged the defendants with conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951 by robbing an armored car, shooting a guard, and taking $400,000. Count two charged Tracy with robbing the armored car and Anthony with aiding and abetting the robbery, in violation of section 1951. Count three charged Tracy with possessing a firearm in furtherance of the robbery and using and carrying a firearm during and in relation to the robbery, in violation of 18 U.S.C. § 924(c)(1)(A), and it charged Anthony with aiding and abetting Tracy in the commission of that crime.
Two co-defendants, Estelle Suttle and Willie Watson, pled guilty to the conspiracy charge and testified against the Redmonds at trial. The evidence at trial showed that on October 29, 2004, Tracy, Anthony, and Watson carried out a planned robbery of an armored car outside of Metropolitan Bank in Chicago. Suttle, a teller at the bank, provided them with inside information in return for money. As one of the guards entered the bank with a bag containing $400,000 in currency, Tracy directed Watson to pull their stolen van to a spot behind the armored car. Tracy jumped out of the van, grabbed the guard, held a gun to his neck, and demanded the bag. He took the bag from the guard after a struggle. During the struggle, Tracy shot the guard three times. Tracy then got back into the van, and the three men drove away. Anthony assisted in planning the robbery and was present in the van during the robbery.
A jury convicted the Redmonds on all charges. The Court sentenced Anthony to concurrent seventy month prison terms on counts one and two and a consecutive 120 month term on count three, for a total of 190 months. The Court sentenced Tracy to a 136 month prison term on counts one and two and a consecutive 120 month term on count three, for a total of 256 months. On appeal, the Seventh Circuit affirmed their convictions and sentences.
In his section 2255 motion, Anthony argues that his trial counsel rendered ineffective assistance by failing to challenge the 120 month consecutive sentence and by failing to challenge the Court's restitution order, and that his appellate counsel rendered ineffective assistance by failing to challenge the reasonableness of the sentence on appeal.
1. Ineffective Assistance Concerning Section 924 Charge
Anthony first contends that his trial counsel was constitutionally ineffective for failing to challenge the basis for his 120 month consecutive sentence on the section 924 charge. Section 924(c)(1)(A) makes it a crime to (among other things) possess a firearm in furtherance of a crime of violence and to use or carry a firearm during and in relation to a crime of violence. 18 U.S.C. § 924(c)(1)(A). The statute provides that a person found to violate the statute shall be sentenced to a prison term consecutive to that provided for the crime of violence: not less than five years, or not less than seven years if the firearm is brandished, or not less than ten years if the firearm is discharged.
Anthony was not claimed to have possessed, carried, or used the firearm himself. Rather, the indictment alleged that he aided and abetted Tracy in violating section 924(c)(1)(A). Nothing in section 924(c)(1)(A) or the aiding and abetting statute -- 18 U.S.C. § 2, which the indictment also cited -- suggests that a person may not be convicted and sentenced under section 924(c)(1)(A) for aiding and abetting another person's violation of the statute.
The jury was correctly instructed regarding the elements of the charged section 924 offense. See Jury Instructions at 25. The jury was also correctly instructed regarding what it took to find Anthony guilty of that offense, either under an aider-andabettor theory or under a theory that the offense was a foreseeable act of the conspiracy with which Anthony was charged, under Pinkerton v. United States, 328 U.S. 640, 646-47 (1946). See Jury Instructions at 31-32.
Anthony's primary claim regarding the section 924 charge appears to be that the Court, in sentencing him to a 120-month term, improperly made a finding that the firearm was discharged. He argues, citing Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, that the Court cannot sentence him on this basis absent a finding by the jury to that effect. See Memorandum of Facts and Law at 5 & 8. The Court disagrees. The Supreme Court has held, in Harris v. United States, 536 U.S. 545, 556 (2002), that the enhanced minimum sentences for brandishing and discharging a firearm are sentencing factors appropriately determined by the sentencing judge, not elements of the offense that a jury must determine. For this reason, the government is not required to prove the discharge factor to a jury. See United States v. Jones, 418 F.3d 726, 731-32 (7th Cir. 2005). It is a corollary of this same principle -- discharge of a firearm is a sentencing factor, not an element of the offense -- that the government is not required to allege discharge in the indictment.
For this reason, Anthony was not prejudiced by his counsel's failure to challenge the 120 month ...