United States District Court, C.D. Illinois, Urbana Division
WILLIAM R. HIBLE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MICHAEL P. McCUSKEY, District Judge.
On February 20, 2014, Petitioner William R. Hible filed this Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1). The government filed its Response (#3) on March 21, 2014. For the following reasons, Petitioner's Motion (#1) is DENIED.
The following background facts are taken from the Seventh Circuit opinion adjudicating Petitioner's direct appeal ( United States v. Hible, 700 F.3d 958 (7th Cir. 2012)):
Petitioner was charged in a three-count indictment with criminal drug conspiracy involving the distribution of cocaine and crack cocaine from May 2008 through February 2010 (Count 1) and with the distribution of cocaine in October 2009 (Count 2) and the distribution of crack cocaine in December 2009 (Count 3) in violation of 21 U.S.C. §§ 841 and 846. In June 2010, the government filed notice pursuant to 21 U.S.C. § 851 that it would seek an enhanced sentence due to Petitioner's prior felony drug conviction. The law in effect at the time had a mandatory minimum penalty of 10 years' imprisonment and a maximum penalty of life imprisonment for a defendant who distributed 5 grams or more of crack cocaine and had a prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006).
On January 12, 2011, Magistrate Judge David G. Bernthal held a change of plea hearing. The government stated its intent to dismiss Counts 1 and 2 at sentencing, and Petitioner pleaded guilty to Count 3, charging him with distributing 5 grams or more of crack cocaine. Judge Bernthal advised Petitioner of the potential penalties and asked him if he had any questions about them. Petitioner asserted that he should be sentenced under the new law, the Fair Sentencing Act of 2010. The FSA increased the threshold amount of crack cocaine for certain penalties and as a result lowered the penalty for offenses involving crack. Under the FSA, a defendant who distributed 12.8 grams of crack and had a prior felony drug conviction faced no mandatory minimum term of imprisonment and a maximum term of imprisonment of not more than 30 years. See 21 U.S.C. § 841(b)(1)(B)(iii), (C) (2006 & Supp.IV).
Judge Bernthal said he did not know the sentencing judge's position on the applicability of the FSA to defendants such as Petitioner who committed an offense prior to the change in law but who would be sentenced afterwards, but advised Petitioner that he could appeal the decision to sentence him under the "old law, " if that was the judge's decision. The government stated that the Seventh Circuit had rejected Petitioner's argument that the FSA applied to offense conduct occurring before the FSA's enactment on August 3, 2010 (presumably referring to United States v. Bell, 624 F.3d 803, 814-15 (7th Cir. 2010)), but noted that the defendant would preserve the right to make that argument. Petitioner agreed to the factual basis for his plea, including that on December 3, 2009, he sold 12.8 grams of crack to an informant. Petitioner pled guilty to the charge of distributing 5 grams or more of crack cocaine. Judge Bernthal found that there was a factual basis for the plea, that the plea was voluntary and knowing, and that Petitioner was guilty as charged in Count 3.
A presentence report (PSR) was prepared prior to sentencing. The report calculated Petitioner's base offense level under the drug quantity guideline, U.S.S.G. § 2D1.1, resulting in a base offense level of 36, based in part on relevant conduct, and after adjustments, a total offense level of 39. The report also calculated Petitioner's offense level under the career offender guideline, § 4B1.1, assuming the FSA did not apply, which resulted in a career offender level of 37, and after adjustments a total offense level of 34. If the FSA applied, however, the career offender guideline total offense level would have been 31. Petitioner had nine criminal history points, which put him in a category IV. But under the career offender guideline, every offender is in category VI.
Using the drug quantity guideline, offense level 39 and criminal history category VI, Petitioner's advisory guideline range was 360 months to life. Under the career offender guideline, offense level 34 and criminal history category VI, the advisory guideline range was 262 to 327 months. The recommended offense level was the higher of the two levels, that is, the one under the drug quantity guideline (39). See U.S.S.G. § 4B1.1(b) ("[I]f the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply."). Thus, the PSR recommended a guideline range of 360 months to life.
Prior to sentencing, Petitioner objected to the paragraphs of the PSR detailing his relevant conduct, which greatly increased the drug quantity for which Petitioner could be held accountable. His objections did not mention the FSA. In response to the objections, the government said that it "believed... a sentence that is sufficient but not greater than necessary to achieve the sentencing purposes of Section 3553(a) can be found within the advisory career offender range" of 262 to 327 months of imprisonment. Although the government agreed with the PSR's relevant conduct findings, it said that a ruling on Petitioner's relevant conduct objections was unnecessary.
At sentencing on July 7, 2011, this court said that it had reviewed the PSR and noted that there were objections that "boiled down to" what the advisory guideline range should be. The court noted that the PSR recommended an offense level of 39, criminal history category VI, and an advisory guideline range of 360 months to life. The court confirmed that Petitioner had "no objection to the career offender [guideline], which would put [his] advisory guideline range at 262 to 327" months. The court also confirmed that the government and probation had no objection to using the career offender advisory guideline range of 262 to 327 months as "our starting point." Then the court asked defense counsel, "So... if I agree that our starting point is the career offender advisory guideline range of 262 to 327[, ]... would that mean there would be no objections to the presentence report?" Counsel answered "That's correct" and the government and probation officer stated that they had no objection to that "starting point." The court said that "the career offender advisory guideline range would start at offense level 34, " after factoring acceptance of responsibility, and both the government and Petitioner's counsel agreed. Accordingly, the court found that "the starting point in this case under the advisory guidelines, by agreement of counsel and probation, is that this is an offense level 34/criminal history category VI and that the advisory guideline range is 262 to 327."
The court reconfirmed with Petitioner, through counsel and with Petitioner directly, that he withdrew his objections "with the agreement that the court start at the offense level 34/criminal history category VI/advisory guideline range 262 to 327, instead of 360 to life." The court found that "all objections have been withdrawn" and "the parties agree that [Petitioner] is a career offender, ... is a criminal history category VI, and... has an advisory guideline range of 262 to 327 months because he is an offense level 34 as adjusted." Then, the court adopted the PSR's findings, as amended by the parties' agreement.
Petitioner offered mitigation evidence, which included evidence to mitigate his career offender status-testimony that although he was convicted of a crime of violence occurring in 2005, he did not actually commit the crime, but pled guilty for other reasons. The government requested a within-guideline sentence of 25 years (300 months). Petitioner's attorney recommended a below-guideline sentence of 15 years (180 months). This court gave Petitioner a "final break" and considered him to have a criminal history category IV, which provided an advisory ...