United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, District Judge.
On November 20, 2009, a federal jury convicted Petitioner Tony Callion of conspiracy to commit bank extortion (Count I) and attempted bank extortion (Count II) in violation of 18 U.S.C. § 371 and § 2113. The jury acquitted Callion of a third charge: that he used or brandished a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). At his sentencing hearing on March 5, 2010, Judge Coar of this court found by a preponderance of the evidence that the offenses involved the discharge of a firearm, and imposed a firearms enhancement to Callion's Federal Sentencing Guidelines calculation. The court sentenced Callion to the statutory maximum for Counts I and II, to run concurrently. Callion appealed, and the Seventh Circuit affirmed his conviction and sentence on June 28, 2011.
On September 4, 2012, Callion filed this petition pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. Callion argues that his attorney was ineffective because (1) counsel failed to object to jury instructions that contained language that differed from the indictment, and (2) the court imposed a "twenty-year mandatory minimum sentence required by § 24(c)(1)(A)(iii)." As an alternate ground for relief, in his reply, Callion argues that his convictions and sentences for conspiracy to commit bank extortion and attempted bank extortion violate the Double Jeopardy Clause. In addition to his § 2255 Petition, Callion has filed a motion to supplement the petition with the Supreme Court's recent holding in Alleyne v. United States, 133 S.Ct. 2151 (2013), decided on June 17, 2013. The Government contends that Callion has not shown that his attorney was ineffective at sentencing; that his double jeopardy claim is procedurally defaulted and is meritless; and that because he was acquitted on the § 924(c) charge, he cannot establish ineffective assistance in connection with the jury instructions related to this charge. Callion's motion to supplement  is granted, but, for the reasons explained below, his § 2255 petition  is denied.
On October 9, 2008, a grand jury returned a three-count indictment against Tony Callion and five co-defendants, charging them with conspiracy to commit extortion of a federally-insured bank, in violation of 18 U.S.C. § 371 (Count I); attempted bank extortion, in violation of 18 U.S.C. § 2113(a) (Count II); and knowingly "us[ing], carr[ying], brandish[ing] and discharg[ing] firearms... during and in relation to a crime of violence" (the attempted bank extortion), in violation of 18 U.S.C. § 924(c)(1)(A) (Count III). (Indictment, United States v. Callion, No. 08-CR-549-1 (Oct. 9, 2008) .) Two of Callion's co-defendants, Daniel Gibbs and Natalie Hoisington, pleaded guilty and cooperated as witnesses, and Israel Collins and Sherman Swopes, two other co-defendants, also eventually pleaded guilty to Counts II and III. United States v. Durham, 645 F.3d 883, 890 (7th Cir. 2011). Callion and his co-defendant Hal Durham proceeded to separate jury trials, and both were convicted on Counts I and II. Durham, 645 F.3d at 888.
The evidence presented at trial showed that as early as June 2008, Callion suggested to Daniel Gibbs, another co-defendant, that they kidnap Charles Zachary (Callion's cousin) because Zachary owed Callion drug money. Durham, 645 F.3d at 888. Then, at a Fourth of July barbeque at the home of Hal Durham (Gibbs's father), Callion and Gibbs again discussed their plan, including Durham and Natalie Hoisington (Gibbs's girlfriend) in the conversation. Id. During this conversation, Callion instructed Gibbs to purchase handcuffs and duct tape. Id. Five days later, on July 9, 2008, Callion called Gibbs to let him know that the intended kidnapping would take place that night. Id. Gibbs, Hoisington, Callion, and Durham all met at Durham's home; and Callion, Gibbs, and Hoisington left around midnight or 1:00 a.m. to locate Zachary, recruiting Israel Collins and Sherman Swopes to assist while they were out. All of the defendants, excluding Durham, waited at Zachary's home, and when he returned, Swopes and Collins abducted and handcuffed him, placed him in the back of the vehicle, and drove him, with the other participants, back to Durham's house. Id.
While Zachary was being moved into Durham's house, Gibbs accidentally discharged a shotgun shell into the vehicle's center console. Id. The kidnapers brought Zachary into the house, duct-taped him to a chair, and wrapped his eyes shut with duct tape. Id. The Seventh Circuit's opinion explained what happened next:
Callion and Durham proceeded to use force to threaten and intimidate their hostage. Durham used an unloaded.22 caliber revolver to play "Russian Roulette" with Zachary, hit Zachary in the side of the head with the revolver, fired a gun loaded with.22 caliber low velocity power load ammunition at Zachary's leg, and briefly brought his pit bull into the room to scare Zachary. Callion pulled up on Zachary's toes with a wrench.
Id. at 888-89. Zachary told his captors that his girlfriend, Luella Dorenzo, worked at a TCF Bank and might be able to get money from the bank to satisfy them. Id. at 888. Callion arranged the ransom drop, and Durham picked up the money-$40, 220 in ransom money in a TCF-labeled bag that also included a tracker device and "four $20 pre-recorded bait bills." Id. at 889. After returning to his home, Durham and the others began dividing the money, and were arrested shortly thereafter. Id. At trial, an FBI agent testified that when he interviewed Callion the morning after the incident, Callion admitted that he had planned the kidnapping for ransom, and that he understood that Dorenzo had a key to the bank vault. Id.
The jury returned a verdict on November 20, 2009, finding Callion guilty of conspiracy to commit bank extortion (Count I) and attempted bank extortion (Count II). The jurors acquitted Callion of Count III, the charge of using, carrying, brandishing, and discharging a weapon during and in relation to the attempted bank extortion. Id. at 890.
In the Presentence Investigation Report ("PSR"), the probation officer calculated Callion's base offense level, for conspiracy and attempted extortion, at 18, and then added points for specific offense characteristics, including a seven level increase for discharge of a firearm. (Presentence Investigation Rep., United States v. Callion, No. 08-CR-549-1 (Apr. 7, 2010) , hereinafter "PSR, " at 7-9); see U.S. SENTENCING GUIDELINES § 2X1.1; § 2B3.2(a); § 2B3.2(b)(3)(A)(i). With respect to the firearms enhancement, the probation officer identified the following incidents during which a firearm was used or discharged in the course attempted bank extortion: Callion was present when Gibbs accidentally discharged a shotgun in the vehicle and when Durham threatened the victim with a.22 caliber handgun; Callion observed Durham fire a.22 caliber handgun loaded with blanks "near [the victim's] leg;" and agents recovered a.38 caliber revolver from Durham's home where the ransom proceeds had been counted. (PSR at 6.) The enhancements brought Callion's total offense level to 38, and with a criminal history category of II, his guideline range was 262 to 327 months, capped at 300 months by the statutory maximums. ( Id. at 9, 12.)
Callion's attorney, Laurence Bolon, identified several disputed facts, specifically relating to the use and discharge of a firearm, in his sentencing memorandum. (Def.'s Sentencing Mem., United States v. Callion, No. 08-CR-549-1 (Mar. 3, 2010) .) The probation officer's conclusion that Callion "observed" Durham fire blanks from a.22 caliber handgun near the victim's leg, Callion argued, was unsupported. ( Id. ¶ 5.) The evidence presented at trial only "suggest[ed]" that Callion was in the house at the time, but there was "no evidence as to what Callion was specifically doing at the time the gun was discharged." ( Id. ) Attorney Bolon emphasized that Callion had been "acquitted of the use of any of the three firearms mentioned at the trial, " and reasoned that the jury must have found that testimony concerning the use of firearms was not believable. ( Id. ¶¶ 31, 38.) Counsel concluded that "the seven point enhancement is not factually supported by the evidence or the ...