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Bonds v. United States

December 9, 2009

LELEN BONDS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This cause is before the Court on Petitioner Lelen Bonds's Memorandum in Support of 28 U.S.C. § 2255 Relief (Motion) (d/e 1).*fn1 Respondent filed Government's Response to Petitioner's § 2255 Motion (d/e 4). Petitioner was given until November 27, 2009, to file a reply brief, but has not done so. Accordingly, this matter is fully briefed and ripe for adjudication. For the reasons described below, Petitioner's Motion is denied.

FACTS

On January 29, 2007, a Government informant wired with video and audio surveillance equipment purchased 1.1 grams of crack cocaine from Petitioner in Quincy, Illinois. Central District of Illinois Case No. 07-30030, Transcript of Proceedings Dated June 21, 2007 (d/e 19), p. 17. A grand jury on April 4, 2007, indicted Petitioner on one count of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). Central District of Illinois Case No. 07-30030, Indictment (d/e 1). On April 11, 2007, the Court appointed Assistant Federal Public Defender Douglas Beevers to represent Petitioner, who pleaded not guilty to the Indictment that same day. Central District of Illinois Case No. 07-30030, Minute Entry of April 11, 2007. Assistant Federal Public Defender Karl W. Bryning joined the case April 19, 2007, relieving Beevers and taking over as Petitioner's counsel of record. Central District of Illinois Case No. 07-30030, Docket Entry of April 19, 2007.

In May 2007, Petitioner decided to change his plea. Central District of Illinois Case No. 07-30030, Text Order of May 25, 2007. On June 21, 2007, Petitioner pleaded guilty in an open plea to the Indictment before U.S. Magistrate Judge Byron G. Cudmore. Central District of Illinois Case No. 07-30030, Transcript of Proceedings Dated June 21, 2007 (d/e 19), p. 19-20. This Court accepted Petitioner's plea of guilty on July 20, 2007. Central District of Illinois Case No. 07-30030, Text Order of July 20, 2007.

The U.S. Probation Office prepared a Presentence Investigation Report (PSR), and revised it twice prior to Petitioner's sentencing hearing on December 17, 2007. See Central District of Illinois Case No. 07-30030, PSR (d/e 13). Petitioner's initial base offense level was 16, with a 3-point reduction for acceptance of responsibility. Id., ¶¶ 10, 16. However, the PSR revealed that Petitioner had two prior felony drug convictions, qualifying him as a career offender under the U.S. Sentencing Guidelines, and giving him a base offense level of 34. Id., ¶ 18. After the 3-point acceptance of responsibility reduction, Petitioner's total offense level was 31. Id., ¶¶ 19-20. Under the U.S. Sentencing Guidelines, this offense level, combined with a Criminal History Category of VI, resulted in an advisory range of 188 to 235 months imprisonment. Id., ¶ 79.

Petitioner objected to portions of the PSR relating to his classification as a career offender. Id., Addendum. Specifically, he argued that an Illinois felony drug conviction contributing to his career-offender status was for possession of a controlled substance, as opposed to possession with intent to deliver. Id. Despite initially making these objections, Petitioner withdrew them at his sentencing hearing on December 17, 2007. Central District of Illinois Case No. 07-30030, Transcript of Proceedings Dated December 17, 2007, p. 9-10.

On December 17, 2007, this Court held Petitioner's sentencing hearing and adopted the PSR. Id., p. 1. The Government recommended a sentence of 169 months, 19 months fewer than the low end of the Guideline range, because Petitioner had provided substantial assistance to both the Government and the Drug Enforcement Agency. Id., p. 8. The Government also stated that if Petitioner's continuing assistance proved fruitful, it would consider filing a motion to reduce his sentence under Federal Rule of Criminal Procedure 35. Id., p. 8-9. Petitioner's counsel brought to the Court's attention the fact that, but for Petitioner's career-offender status, he would be facing a Guideline range between 33 and 41 months imprisonment. Id., p. 11. Counsel also pointed out that the case involved only a small amount of crack cocaine, and that Petitioner had endured an abusive childhood. Id., p. 11-12.

The Court sentenced Petitioner to a 162-month term of imprisonment, 6 years supervised release, and imposed a $100 special assessment. Id., p. 17-20. Before the Court imposed this sentence, it considered a variety of factors, including the Sentencing Guidelines; the need to avoid sentencing disparities among offenders who committed similar crimes; the recommendations of the Government and Petitioner's counsel; Petitioner's statement to the Court; the small quantity of drugs involved in the offense and in Petitioner's prior offenses; Petitioner's assistance to the DEA; and letters written to the Court on Petitioner's behalf. Id. 15-18. The Court told Petitioner:

But I am hopeful for you that in the coming months that you'll be able to demonstrate a reason for the Government to come back and ask to have you re-sentenced to lesser time. And they can do that by filing a motion within the next year if your cooperation yields benefits in their view. So I'm hopeful that will come about.

Id., p. 16.

On December 28, 2007, Petitioner timely filed a Notice of Appeal. Central District of Illinois Case No. 07-30030, Notice of Appeal (d/e 16). Attorney Hannah Valdez Garst replaced Bryning as Petitioner's counsel of record on February 21, 2008. Central District of Illinois Case No. 07-30030, Docket Entry of February 21, 2008. However, on April 18, 2008, she filed a motion to withdraw before the U.S. Court of Appeals for the Seventh Circuit together with an Anders brief, indicating that there was no non-frivolous issue on which to base Petitioner's appeal. Central District of Illinois Case No. 07-30030, Notice of USCA (d/e 24). The Seventh Circuit granted Garst's motion, and gave Petitioner an opportunity to raise issues pro se. Id. Petitioner did so, but on July 18, 2008, the Seventh Circuit dismissed his appeal. Central District of Illinois Case No. 07-30030, Judgment of USCA (d/e 29). The Seventh Circuit held that any challenge to Petitioner's sentence would be frivolous. Petitioner did not petition the U.S. Supreme Court for certiorari.

On August 26, 2009, Petitioner filed the instant matter, alleging violations of his ...


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