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United States v. Waltower

United States District Court, Seventh Circuit

October 7, 2013

UNITED STATES OF AMERICA,
v.
STEPHEN T. WALTOWER,

MEMORANDUM OPINION AND ORDER

SHARON JOHNSON COLEMAN, District Judge.

Before the Court is pro se petitioner Stephen T. Waltower's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Waltower's Section 2255 motion and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

Background

On September 7, 2007, Chicago police officers executed a search warrant at the apartment of Kimesia Gooden, petitioner Stephen Waltower's then-girlfriend. Waltower also lived in the apartment. Waltower was not present during the search, but Ms. Gooden was on the porch when the police arrived. Police Officer Chad Bauman searched the bedroom and recovered the following items: a loaded Glock Model 19, 9-millimeter caliber semi-automatic pistol, serial number GHP 572, with nine rounds of 9-millimeter caliber bullets that was manufactured outside of the State of Illinois that was found under the mattress; 222 plastic baggies containing a total of 48.78 grams of cocaine base in the form of crack cocaine that were found in a male's athletic shoe and in the pockets of a jacket in the closet; 37 rounds of various types of ammunition were found in a small bag in the closet; a "drug ledger" and 11 documents and pieces of mail with Waltower's name were found on the dresser; and a scale and grinder that were found inside a dresser drawer. Sergeant John Lucid, who also participated in the search of the bedroom found $640 in United States currency in the pocket of a jacket.

Waltower did not return to the residence after the search, which he learned about from Ms. Gooden. Ms. Gooden testified that she told Waltower that the police had found his gun. She also testified that during a later conversation with Waltower about the search, he asked her to tell the police that the gun was hers because of her lack of criminal history and that Waltower would take responsibility for the drugs.

Police arrested Waltower on unrelated charges approximately one month after the search. Officers Bauman and Greenwood interviewed Waltower about the items recovered by the police in the search. Officer Greenwood advised Waltower of his Miranda rights and testified that Waltower voluntarily spoke with the officers. When Officer Greenwood asked Waltower about the gun, he told the officer that he purchased the gun for $300 or $400 from someone named Jeff, who also went by "Joe" and resided in the 600 block of North Lawler in Chicago. Waltower also claimed that he was holding the drugs that the police recovered for someone else.

A federal grand jury returned a three-count indictment followed by a superseding indictment charging Waltower with possession with intent to distribute 50 grams or more of cocaine base in the form of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count I); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count II); and being a felon in possession of a firearm in violation of U.S.C. § 922(g)(1) (Count III).

On April 16, 2008, Waltower moved to suppress items recovered by the Chicago Police Department in the search of an apartment, pursuant to a warrant, arguing that the warrant was not supported by probable cause. The district court denied Waltower's suppression motion on June 1, 2009. Waltower proceeded to trial on the charges in the second superseding indictment: conspiracy to possess with intent to distribute and to distribute 5 grams or more of cocaine base in the form of crack cocaine and a detectable amount of heroin in violation of 21 U.S.C. § 846 (Count I); possession with intent to distribute 5 grams or more of cocaine base in the form of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count II); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count III); and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count IV). On June 10, 2009, the jury found Waltower guilty of Count Four (felon in possession) and acquitted him of the remaining counts.

In preparation for sentencing, the United States Probation Office ("USPO") submitted a Presentence Investigation Report (PSR). After sentencing the USPO prepared a corrected PSR to reflect a correction to Waltower's criminal history category calculation. Relying on the November 2008 Guidelines Manual, the USPO calculated Waltower's adjusted offense level as 30 and his criminal history category as III. Based on the calculations, the advisory Guidelines range was 121 to 151 months' imprisonment. However, because the statutory-maximum sentence for the offense of conviction was 10 years, pursuant to 18 U.S.C. § 924(a)(2), the USPO determined that the advisory Guidelines range was limited to 120 months.

On November 8, 2009, Waltower's counsel filed a sentencing memorandum in which he challenged, among other things, the USPO's four-level enhancement under Guideline § 2K2.1(b)(6) for possessing a firearm in connection with another felony offense, arguing that Waltower was acquitted of the narcotics-related offenses, and that the testimony of Ms. Gooden regarding petitioner's drug trafficking should not be credited by the district court. The memorandum also contained arguments for a sentence five years below the maximum ten years' imprisonment based on: (1) his period of incarceration for four months when he faced identical charges by the State; (2) his conduct while on home confinement; (3) his request that his bond be revoked before his sentencing date so that he could begin serving his term of incarceration; (4) his lifelong struggle with substance abuse; (5) his upbringing surrounded by gangs and drugs; and (6) his rapport with defense counsel.

On November 12, 2009, the district court held a sentencing hearing. Waltower's counsel reiterated his challenge to the four-level enhancement under § 2K2.1(b)(6). The court rejected the argument and adopted the USPO's calculations, finding that Waltower's advisory range was 121 to 151 months, limited by statute to 120 months. The court sentenced Waltower to 120 months' imprisonment. Waltower appealed his sentence, arguing that the district court erred in relying on acquitted conduct to calculate his guideline range and imposing his sentence. Waltower also argued that his trial counsel should have moved to suppress his post-arrest statements and the district court should not have admitted the statements. The Seventh Circuit Court of Appeals affirmed his conviction in U.S. v. Waltower, 643 F.3d 572 (7th Cir. 2011), but left Waltower's argument regarding the post-arrest statements for collateral review.

In his pro se Petition to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255, Waltower makes three arguments for relief from his sentence: (1) he claims his trial counsel was ineffective for failing to move to suppress Waltower's post-arrest statements to Chicago police officers regarding the gun and narcotics retrieved in the search; (2) he claims his trial counsel was ineffective because he did not argue the factors that would allow the court to sentence him below the guideline; and (3) he claims that the district court improperly relied on acquitted conduct in calculating his sentencing range.

Legal Standard

"[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); see also Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Section 2255 relief "is available only when the sentence was imposed in violation of the Constitution or laws of the United States, ' the court lacked jurisdiction, the sentence was greater than the maximum authorized by ...


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