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Armstrong v. United States

United States District Court, Seventh Circuit

December 13, 2013

ROBERT ARMSTRONG, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

OPINION

RICHARD MILLS, District Judge.

Pending is the Motion of Petitioner Robert A. Armstrong Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence [d/e 1]. The Government has filed a Response to the Motion [d/e 8]. The Petitioner has filed a Reply [d/e 9]. In addition, the Petitioner has filed a Supplement [d/e 13] to his Motion. As directed, the Government filed a Response [d/e 14] and the Defendant filed a Reply [d/e 15].

I. BACKGROUND

On November 7, 2007, Petitioner Robert A. Armstrong was charged by Indictment with Possession with Intent to Distribute 5 or more Grams of Cocaine Base ("crack"), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). See Case No. 3:07-CR-30107

On July 16, 2008, the Petitioner was arrested in the Northern District of Illinois and transferred to the Central District of Illinois. At his Initial Appearance and Arraignment on September 25, 2008, the Petitioner was found indigent and Assistant Federal Public Defender Robert Scherschligt was appointed to represent him. The Petitioner pled not guilty and consented to detention.

On April 22, 2009, the Government filed a Notice of Prior Felony Drug Conviction.

On April 27, 2009, the Petitioner entered an open plea of guilty to the Indictment.

The Presentence Investigation Report classified his base offense level as 24. He was given a three-level reduction for acceptance of responsibility, which yielded a total offense level of 21. Because he had two prior felony convictions for crimes of violence or controlled substance offenses, however, the Petitioner was designated as a career offender, which resulted in a total offense level of 37 under U.S.S.G. § 4B1.1(b)(A). After a three-level reduction for acceptance of responsibility, the Petitioner's total offense level was calculated to be 34.

A total offense level of 34 and a criminal history category of VI established a guideline range of 262 to 327 months.

At the sentencing hearing on January 25, 2010, United States District Judge Jeanne E. Scott discussed factors which she determined to warrant a sentence below the applicable guideline range. Judge Scott noted the disparity under the sentencing guidelines between crack and powder cocaine. Judge Scott further determined that because of the age of the Petitioner's armed robbery conviction, which was a predicate to his career offender status, a sentence below the 262 to 327 month range would be appropriate. The Court sentenced the Petitioner to 235 months imprisonment, eight years supervised release and the $100 special assessment. See Doc. No. 30, at 15-18.

On October 25, 2010, the Petitioner sent a letter to the Court which provided that he wanted to file a Notice of Appeal and requesting that an attorney be appointed to represent him for that purpose. The Court construed the letter as a Notice of Appeal and forwarded the document to the United States Court of Appeals for the Seventh Circuit on December 22, 2010.

The Court simultaneously construed the Petitioner's submission as a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 and ordered the Petitioner to supplement his re-characterized motion or file an objection.

On December 30, 2010, the Seventh Circuit directed the Petitioner to file a memorandum by January 13, 2011, stating why his appeal should not be dismissed for lack of jurisdiction due to its untimeliness. On January 21, 2011, that court again ordered the Petitioner to respond regarding why his appeal should not be dismissed for failure to respond to the court's order of December 30, 2010. On February 16, 2011, based on the Petitioner's continued failure to file a response as ordered, the Court directed the United States to file a memorandum addressing the timeliness issue on or before February 25, 2011. The United States filed the jurisdictional memorandum as directed, stating that the appeal should be dismissed for lack of jurisdiction based on the untimeliness of the Petitioner's notice of appeal. On March 9, 2011, the Petitioner's appeal was dismissed as untimely.

The Petitioner's § 2255 Motion and the Supplement thereto are ...


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