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United States v. Austin

March 12, 2010

UNITED STATES OF AMERICA, PLAINTIFF - RESPONDENT,
v.
ARTURIO AUSTIN, DEFENDANT - MOVANT.



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

MEMORANDUM OPINION AND ORDER

Arturio Austin has filed a pro se motion under 28 U.S.C. § 2255. The Court conducts a preliminary assessment of the motion to determine whether a response is required. See Rule 4(b), Rules Governing Section 2255 Cases.

Background

Mr. Austin pled guilty "blind" to a narcotics conspiracy charge -- in other words, without a written plea agreement. Mr. Austin's Sentencing Guidelines criminal history category was III and his offense level was 36, making the advisory Guidelines range 235 to 293 months imprisonment. The Court imposed a sentence of 151 months, which was considerably below the low end of the range -- a reduction of a little over one-third. The Court expressly based the below-Guidelines sentence on, among other things, his extensive cooperation with the government in this and related cases. Mr. Austin did not appeal the sentence.

Mr. Austin's Contentions

Mr. Austin makes the following arguments in his section 2255 motion:

1. He alleges that the indictment did not cite the provision of the criminal narcotics statute that sets forth the applicable penalty, and he seems to argue that a jury finding was required regarding the type and quantity of narcotics involved in his case.

2. He says that the government unfairly refused to make a motion for downward departure under U.S.S.G. § 5K1.1 and that the government breached the plea agreement by failing to make the motion.

3. He also alleges that his trial counsel was ineffective for failing to contest the government's refusal to make the downward departure motion.

4. He says that he should have been found eligible for the Guidelines' "safety valve" provision, U.S.S.G. § 5C1.2.

5. He argues that his sentence was grossly disproportionate and a violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

6. He contends that the Court should have sentenced him under the provisions of 18 U.S.C. § 3553 rather than under the Sentencing Guidelines. In this argument, Mr. Austin also cites section 3553(e), suggesting that he contends that the Court should have imposed a sentence under the mandatory minimum of ten years imprisonment.

Discussion

None of Mr. Austin's arguments has any conceivable merit as part of a section 2255 motion. Mr. Austin could have raised arguments 1, 2, 4, 5, and 6 via a direct appeal from his sentence, but he did not appeal. Contentions that a defendant could have but failed to raise on direct appeal are considered procedurally defaulted and cannot be asserted via a section 2255 motion absent a viable excuse for the default. See, e.g., Ballinger v. United States, 379 F.3d 427, 429 (7th Cir. 2004). Mr. Austin offers no excuse for the procedural default ...


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