The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Before this Court is a motion filed by Petitioner Antwan Ramsey ("Ramsey") to correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the motion is DENIED.
On October 25, 2006, Ramsey was indicted and charged with (1) conspiring to possess with the intent to distribute in excess of 50 grams of mixtures containing cocaine base in the form of crack cocaine, in violation of 21 U.S.C. § 846, and (2) distributing in excess of 5 grams of mixtures containing cocaine base in the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). On October 4, 2007, Ramsey entered a guilty plea to the distribution charge pursuant to a written plea agreement. The charge carried a mandatory minimum sentence of 5 years' imprisonment. On March 19, 2008, the court sentenced Ramsey to 92 months' imprisonment and a term of supervised release of 5 years.
After Ramsey appealed his sentence, his counsel filed an Anders brief, seeking to withdraw because he was unable to identify any non-frivolous arguments to pursue. Defendant responded to counsel's brief. On November 18, 2008, the Court of Appeals granted defense counsel's motion to withdraw and dismissed defendant's appeal.
Under 28 U.S.C. § 2255, federal prisoners can challenge the imposition or length of their detention if their conviction or their sentence is based on an error that is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1995) (internal quotations and citations omitted). If the reviewing court determines that any such defect exists in the judgment or sentence, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255.
In addition, after reviewing the Petitioner's motion, the government's response, and any record of prior court proceedings, the court will determine whether an evidentiary hearing is required. See Rule 8(a) of the Rules Governing Section 2255 Proceedings. "If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the [court] shall make an order of summary dismissal." See Rule 4(b) of the Rules Governing Section 2255 Proceedings; Liss v. United States, 915 F.2d 287, 290 (7th Cir. 1990).
Ramsey requests a resentencing on two grounds: (1) this Court sentenced him without the benefit of recent Supreme Court jurisprudence and Department of Justice ("DOJ") policy changes relating to the crack/powder disparity in the Sentencing Guidelines,*fn1 and (2) Ramsey's lawyer was ineffective for cutting off contact before the submission of his Anders brief.
In Ramsey's first claim, he suggests that the Court did not know it had discretion to vary from the Guidelines in the manner authorized by Spears v. United States, 129 S.Ct. 840 (2009), which issued after the Seventh Circuit affirmed his sentence. Ramsey notes that the Court failed to explicitly comment on whether it categorically disagreed with the 100:1 crack to powder ratio, as permitted by Spears. Ramsey ultimately requests a resentencing in light of a DOJ policy statement, Spears, and other recent jurisprudence.
The Supreme Court may have decided Spears after Ramsey's sentencing and appeal, but the advisory nature of the Guidelines, including the crack/cocaine Guidelines, was well established by the time Ramsey received his sentence. See United States v. Booker, 543 U.S. 220, 244 (2005), Kimbrough v. U.S., 552 U.S. 85, 91 (2007). Spears merely clarified that district courts, in rejecting the Guidelines, were permitted to adopt "replacement ratios" in addition to making "individualized determinations." Spears, 129 S.Ct. at 843-44. The case in no way effects Ramsey's sentence. Whether the Court could vary from the Guidelines by way of a replacement ratio, on the one hand, or an individualized determination, on the other, was irrelevant to the Court's calculations. The Court, fully aware of its discretion, declined to depart from the Guidelines at all; it sentenced Ramsey within the Guidelines range. After reciting the record of Ramsey's extensive prior recidivism, the Court explained:
Yes, I do have discretion to take into account the differential in sentencing between powder and crack cocaine.... But I cannot say in this case, in this case, given the facts... that this is a proper case for further reduction.... I don't have any confidence whatsoever that you won't go out and continue to do exactly what you've done in the past. The other convictions didn't stop you. There's no reason to believe that this sentence will stop you either. So I think that the guidelines capture where the sentence ought to be. (June 6, 2008 Tr. 19:5-24.) Ramsey complains that the Court never expressly opined on the 100:1 ratio. But implicit in the Court's ruling was an admission that, in some cases, the crack/powder ratio suggested by the Guidelines is inappropriate. Ramsey's was simply not one of those cases.
At heart, Ramsey's claim derives from the Court's alleged misapplication of the Sentencing Guidelines. The Seventh Circuit already addressed and rejected this contention on direct appeal. The circumstances have not changed since then; neither Spears nor DOJ policy have recognized a constitutional right to be sentenced at odds with the Guidelines, nor have they instituted any changes to the Guidelines themselves. Consequently, the Court will not reconsider the issue. See Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995) (where there are no ...