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Jeremy S. Cary v. United States of America

February 11, 2013


The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge


Tuesday, 12 February, 2013 11:12:45 AM

Clerk, U.S. District Court, ILCD


This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1), filed on November 13, 2012. Respondent filed a Response (Doc. 14) and Petitioner filed a Reply (Doc. 16). For the reasons stated below, Petitioner's Motion is granted.


Petitioner was convicted of failure to register as a sex offender in violation of 18 U.S.C. § 2250(a) after a guilty plea, without a plea bargain. (Doc. 1 at 1). The presentence investigation report (PSR) stated that "the defendant was required to register as a Tier III offender." (11-cr-10054, Doc. 15 at 5). Under the sentencing guideline for a failure to register offense, this corresponded with a base offense level of 16. U.S. Sentencing Guidelines Manual § 2A3.5. The total offense level was calculated as 13, incorporating a three level reduction for acceptance of responsibility. (11-cr-10054, Doc. 15 at 6). Based on Petitioner's criminal history, the guidelines range for this offense level was calculated as thirty-three to forty-one months' imprisonment and supervised release for life. (11-cr-10054, Doc. 15 at 18-19). Petitioner was sentenced to thirty-three months of incarceration, the lowest end of the guidelines range for the calculated offense level. (Doc. 1 at 1). He was also sentenced to twenty years of supervised release, below the guidelines recommendation. (Doc. 1 at 1). His supervised release included a condition that Petitioner install filtering software on his computer at his cost and allow his probation officer to monitor his computer use. (11-cr-10054, Doc. 18 at 4). Petitioner did not appeal this sentence. (Doc. 1 at 2).

In Petitioner's § 2255 Motion, he raises five grounds to challenge his conviction and sentence. His first claim is that he received ineffective assistance of counsel based on the failure to argue certain points Petitioner wanted raised during his sentencing hearing. This claim is closely related to the other four arguments raised in the Petition: that he should have received a downward departure based on family responsibilities, that the Court abused its discretion in setting a supervised release condition limiting Petitioner's use of computers, that a twenty-year supervised release term is "greater than necessary punishment," and that his calculated base offense level was "improper and unconstitutional." (Doc. 1 at 4-14).


A sentence may be vacated, set aside, or corrected pursuant to § 2255 if the sentence "was imposed in violation of the Constitution or laws of the United States."

28 U.S.C. § 2255(a). "[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Thus, § 2255 is limited to correcting errors of a constitutional or jurisdictional magnitude or errors constituting a fundamental defect that results in a complete miscarriage of justice. E.g., Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). "A § 2255 motion is not a substitute for a direct appeal." Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003). Where a petitioner failed to appeal his sentence, his claims in a § 2255 motion may be procedurally barred. Constitutional issues are barred unless the petitioner can show good cause for and prejudice from the failure to appeal the issue, or if refusal to hear the issue would result in a fundamental miscarriage of justice. See Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). "[N]onconstitutional issues that could have been but were not raised on direct appeal" cannot be raised in a § 2255 motion regardless of cause or prejudice. Belford, 975 F.2d at 313; see also Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000).*fn1 However, to the extent such claims form the basis for ineffective assistance of counsel claims, they may be considered in that context. See Belford, 975 F.2d at 313 n.1. An ineffective assistance of counsel claim may be raised in a § 2255 motion regardless of whether it could have been raised on appeal. Massaro v. United States, 538 U.S. 500, 504 (2003).

I. Failure to Award Downward Departure

Among Petitioner's claims is an argument that he was entitled to a downward departure from the sentencing guidelines range because of his family responsibilities. (Doc. 1 at 10). Petitioner also claims his counsel was ineffective for failure to ask the Court for this downward departure. (See Doc. 1 at 10). Neither of these arguments entitles Petitioner to relief.

First, as a stand-alone claim, this non-constitutional claim for failure to award the departure is procedurally barred for failure to appeal the issue. Though neither Petitioner nor his counsel specifically asked for a downward departure pursuant to U.S. Sentencing Guidelines Manual § 5H1.6, both made it known to the Court that Petitioner's girlfriend had recently given birth to a child.*fn2 (See 11-cr-10054, Docs. 14-1, 23). Petitioner could have appealed the ...

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