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United States of America v. Daniel Storm

November 30, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DANIEL STORM, DEFENDANT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

Before the court is defendant Daniel Storm's "Motion to Vacate, Set Aside or Correct a Sentence" pursuant to Federal Rule of Criminal Procedure 35(a). (Dkt. No. 1 ("Def.'s Mot.").) For the reasons set forth below, Storm's motion is denied.

BACKGROUND

On August 13, 1986, Daniel Storm ("Storm"), then going by the legal name of Daniel Slaughter, was convicted by a jury in case number 86 CR 0057 of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846 (Count One), distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (Count Two), traveling in interstate commerce with intent to distribute cocaine in violation of 18 U.S.C. § 1952(a)(3) (Count Three), and use of a communication facility to facilitate the distribution of cocaine in violation of 21 U.S.C. § 843(b) (Counts Four through Seven). (Dkt. No. 6-2, Gov't Ex. B ("Judgment and Probation/ Commitment Order").)

Storm was sentenced on January 16, 1987. In relevant part, Storm's sentence included ten years of imprisonment on Count One, ten years of imprisonment on Count Two (to run concurrently with the sentence imposed on Count One), and five years of probation on Count Five (to run consecutively to the sentence imposed on Count One). (Id.) The sentence on Count Two also included a "special parole term of LIFE" with the conditions that "defendant is to refrain from distributing or possessing narcotics or firearms and refrain from all contact and association with any person known to possess narcotics, firearms, or known to be a convicted felon." (Id.) The sentence of probation on Count Five applied "the same special conditions as imposed on Count 2." (Id.) On January 30, 1989, after a remand from the United States Court of Appeals for the Seventh Circuit in United States v. Rollins, 862 F.2d 1282 (7th Cir. 1988), Storm's conditions of special parole were modified so that Storm was barred from contact with any convicted felon except his then-fiancee, and co-defendant, Kelly Rollins. (See Dkt. No. 6 ("Gov't Resp.") at 3.)

LEGAL STANDARD

The version of Rule 35(a) applicable to Storm's motion "allows for the correction at any time of an illegal sentence imposed for offenses committed before [November 1, 1987]." United States. v. Boyd, 591 F.3d 953, 955 (7th Cir. 2010). The Seventh Circuit has held that although 28 U.S.C. § 2255 and Rule 35(a) overlap, a petitioner is entitled to have his or her motion treated as one under Rule 35(a) if it falls within the scope of the rule. Id. at 956-7. The government does not dispute that Storm's pending motion is properly construed as a Rule 35(a) motion. (Gov't Resp. at 1, n.1.)

Under Rule 35(a), the validity of the conviction is assumed. United States v. Makres, 741 F. Supp. 727, 733 (7th Cir. 1990). For motions made more than 120 days after the sentence becomes final, like Storm's, "the court's authority is limited to correcting sentences that are illegal even if there was no irregularity in the sentencing proceeding; the court may not 're-examine errors occurring at the trial or other proceedings prior to the imposition of sentence.'" Boyd, 591 F.3d at 956 (quoting Hill v. United States, 368 U.S. 424, 430 (1962)). A sentence is illegal if it is "ambiguous, inconsistent with the defendant's conviction, or otherwise defective." Id. (quoting United States v. Bennett, 172 F.3d 952, 953 (7th Cir. 1999)).

ANALYSIS

Storm assets that the sentence he received in 1987 is "invalid [and] contrary to Constitutional proscriptions and statutory provisions." (Def's Mot. at 1.) Specifically, Storm argues that (1) the term of probation he received on Count Five "has expired" and cannot now be enforced by the United States Probation Office in 2012, and (2) the special parole term he received on Count Two "was not authorized" because "the statutory provisions under the Comprehensive Crime Control Act, denied the imposition of a 'special parole term'" in 1987. (Id. at 2.) The court addresses each argument in turn.

1. Term of Probation on Count Five Storm's first argument is that the term of probation he received on Count Five "has expired" and cannot now be enforced by the United States Probation Office in 2012.

Although the allegations in Storm's Rule 35 motion are somewhat unclear, it appears that Storm began serving his ten-year sentence in 1987 and was later "paroled at the minimum eligibility date by the U.S. Parole Commission, in or about 1994." (Def.'s Mot. at 2.) Seven years later, in 2003, Storm was convicted of additional crimes in the Eastern District of Wisconsin and was sentenced to 79 months of imprisonment. (Id.) Storm was then "released with good conduct credits in 2009" and, after presumably being subject to a period of supervised release, "is being discharged from the 2003 conviction in 2012." (Id.) Storm alleges that he "is being advised by the U.S. Probation Office, that he is now on 'probation' from the 1986 criminal matter." (Id.)

Storm does not appear to argue that has already served his five-year sentence of probation for Count Five, but instead appears to argue that the government missed its opportunity to enforce this sentencing term. In Storm's words, "the probation imposed in this matter, could not be intended to run consecutive to terms not yet contemplated or imposed." (Id.) In either event, Storm's complaint regarding Count Five appears to focus on a perceived error in the government's enforcement of his probation term, rather than the nature or content of the sentencing term itself. Because the relief afforded by Rule 35(a) is limited to correcting illegal sentences, Storm's argument misses the mark. The court finds no illegality in Storm's sentence of probation on Count Five that requires correction by this court.

As a practical matter, the court notes that the conditions of Storm's probation on Count Five are indistinguishable from the conditions of Storm's "special parole term of LIFE" on Count Two, perhaps explaining the U.S. ...


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