United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, District Judge.
Petitioner James McKenzie, proceeding pro se, moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. McKenzie pled guilty to conspiracy to possess with intent to distribute mixtures containing in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846 and knowingly possessing and carrying firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) and c(2). This Court sentenced McKenzie to 200 months imprisonment: 140 months for his violation of 21 U.S.C. § 846 and 60 months for his violation of 18 U.S.C. § 924(c)(1)(A) and c(2). In affirming this sentence, the Seventh Circuit explained that "McKenzie's sentence of 200 months' imprisonment was within a Guidelines range the district court calculated to be 168 to 210 months, a sharp decrease from the PSR calculation of 262 to 327 months." United States v. McKenzie, 656 F.3d 688, 692 (7th Cir. 2011). McKenzie now claims that he received ineffective assistance of counsel at sentencing because his lawyer failed to challenge the application of 21 U.S.C. § 841(b)(1)(A)(ii) to his conduct and because his lawyer failed to seek a downward departure to avoid a sentencing disparity. For the reasons stated herein, this Court denies McKenzie's petition.
McKenzie was one of four individuals arrested on September 9, 2008, as part of an undercover sting operation involving the planned armed robbery of a drug stash house. On July 1, 2008, co-defendant Tony Mahan met with an undercover agent posing as a drug courier to learn the details of the planned robbery. In a recorded conversation, the agent said he transported approximately five kilograms of cocaine per month for a Mexican drug trafficking organization. He said he was unhappy with the organization and needed a crew to help him rob the stash house. He described that the house typically had three men inside and that he usually saw twenty to thirty kilograms of cocaine being prepared for distribution there. Mahan told the agent he could put together a team of four with multiple firearms to help carry out the robbery and then recruited McKenzie to help.
On July 22, 2008, the agent met with Mahan, McKenzie, and Mario Barber and discussed at length various methods of carrying out the robbery. He relayed the same information he had previously told Mahan to McKenzie and Barber. They said they wanted to participate.
On the date of their arrest, McKenzie waited in a parking lot for a call telling them the location of the stash house. Barber and McKenzie arrived separately. At one point, they entered the agent's car and the agent confirmed the details of the plan they thought they were about to execute. Specifically, he asked whether everyone present was aware that they were going to invade a home suspected of containing twenty kilograms of cocaine, armed with firearms; no one expressed reservations and, shortly after, the defendants were taken into custody. Following his arrest, a loaded.357 semi-automatic pistol was found underneath McKenzie's seat, and a ballistic vest and latex gloves were found on McKenzie's person.
As part of the factual basis for his plea agreement, McKenzie admitted (1) that between July and September 2008, he conspired with Barber and others to carry out the robbery of a drug stash house containing cocaine, (2) that he had participated in the July 22 and September 9 conversations detailed above, (3) that on the date of the planned robbery, he had armed himself with a.357 semi-automatic pistol to be used in the robbery, and (4) that on the date of the planned robbery, he had worn a ballistic vest.
A presentence report calculated McKenzie's base offense level under § 2D1.1 of the Federal Sentencing Guidelines (the "Guidelines") at 34 for the type and quantity of drugs involved. McKenzie had 2 points added for obstruction because the probation officer concluded he had lied during a suppression hearing, bringing his total offense level to 36.
At sentencing, McKenzie disputed the amount of cocaine for which he should be held accountable under the Guidelines. This Court reviewed transcripts of the recorded conversations and concluded that the general understanding was that McKenzie expected to recover twenty kilograms or more of cocaine from the stash house on the planned date of the robbery. This was consistent with the base offense level of 34, which covers drug quantities of at least fifteen, but less than fifty kilograms of cocaine. McKenzie also disputed a 2-level increase for obstruction of justice. But a 2-level increase was appropriate because McKenzie lied during a suppression hearing to make it seem as though police officers did not read him his Miranda rights. With a criminal history category of IV and an offense level of 36, McKenzie's Guidelines range would have been 262-327 months imprisonment.
Despite his obstruction of justice, McKenzie sought and received a 3-level reduction for acceptance of responsibility. McKenzie also challenged his criminal history category of IV as an overrepresentation of his actual criminal history. This Court agreed with McKenzie and reduced his criminal history category to III. Together, the offense level of 33 and criminal history category of III resulted in a Guidelines range of 168-210 months imprisonment for his conviction under 21 U.S.C. § 846. After reviewing the factors that must be considered in determining an appropriate sentence under 18 U.S.C. § 3553, this Court sentenced McKenzie to 140 months imprisonment for his violation of 21 U.S.C. § 846 and 60 months imprisonment for his violation of 18 U.S.C. § 924(c)(1)(A) and c(2).
STANDARD OF REVIEW
A federal prisoner may move the court that imposed a sentence to vacate, set aside, or correct that sentence on the grounds that the court imposed the sentence in violation of the Constitution or laws of the United States, the court lacked jurisdiction to impose the sentence, the sentence exceeded that permitted by law, or the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. "Relief under § 2255 is an extraordinary remedy because it asks the district court to essentially 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). A district court may dismiss a petition under § 2255 at an early stage-and without an evidentiary hearing-if the record before the court shows that the petitioner is not entitled to relief. Id.
The Sixth Amendment provides criminal defendants with the right to effective counsel. Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011). Courts presume that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." United States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)). To rebut this presumption, a petitioner must show that his counsel's performance fell below an objective standard of reasonableness and that, but for his counsel's performance, the result of the proceeding would have been different. Lathrop, 634 F.3d at 937; see also United States v. Peterson, 711 F.3d 770, 780 n.4 ("Ordinarily, when a defendant challenges a sentence on the basis of ineffective assistance of counsel, the Strickland standard will apply."). "The benchmark for ...