United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
This matter is before the Court on Petitioner Joe Hester's motion to vacate, set aside, or correct sentence by person in federal custody pursuant to 28 U.S.C. § 2255  and motion to request "order" or "standing order" for unimpeded access to the court . For the reasons stated below, the Court denies Petitioner Hester's motion to vacate, set aside, or correct sentence  and denies as moot Petition's motion to request "order" or "standing order" for unimpeded access to the court .
On October 21, 2008, Hester was arrested on a criminal complaint charging him with a violation of 18 U.S.C. §922(g). After the Government was granted several extensions of time to return an indictment, on February 17, 2009, the grand jury returned a three-count indictment charging Hester with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of possession of narcotics with intent to distribute . On December 9, 2009, a grand jury returned a superseding indictment based on substantially the same charges . After a lengthy pre-trial process and considerable motion practice, a jury trial commenced on October 24, 2011. On October 27, 2011, the jury returned a verdict of guilty as to all three counts. Defendant then filed a motion for judgment notwithstanding the verdict and a motion to dismiss; the Court denied both motions . While the parties prepared for sentencing, Defendant filed another post-trial motion, asserting many of the same arguments previously raised and rejected as well as a few new contentions, which the Court also denied.
The initial presentence investigation report ("PSR") determined that Hester's total offense level was 37. The offense level was based on Hester's status as a career offender and used the offense statutory maximum of life for Count Two, which, pursuant to USSG § 4B1.1(b)(A), resulted in an overall total offense level of 37. The PSR based this calculation on a statutory maximum of life imprisonment for Count Two of the super superseding indictment, which charged Hester with the possession with intent to distribute 5 or more grams of crack cocaine on August 1, 2007, pursuant to 21 U.S.C. § 841(a)(1). Hester was subject to enhanced penalties for this offense as a result of an Information Stating Previous Conviction to Be Relied Upon in Seeking Increased Punishment pursuant to 21 U.S.C. § 851(a) filed on December 2, 2009.
As of the date that this offense was committed, the enhanced penalty pursuant to 21 U.S.C. § 841(b)(1)(B)(iii) consisted of a 10-year mandatory minimum and a statutory maximum of life. The current enhanced penalty, as a result of the Fair Sentencing Act, for 5 or more grams of crack cocaine but less than 28 grams was a statutory maximum of thirty years. Cf. 21 U.S.C. § 841(b)(1)(B)(iii) and (C) (2010); 21 U.S.C. § 841(b)(1)(B)(iii) and (C)(2011).
The PSR's initial position on this issue was consistent with the prevailing Seventh Circuit case law that the Fair Sentencing Act was not retroactive and applied only to offenses committed after August 3, 2010. United States v. Fisher, 635 F.3d 336 (7th Cir. 2011). At the time, the Attorney General took the position that the Fair Sentencing Act applies to all criminal prosecutions in which sentence was imposed on or after August 3, 2010, the day the President signed the bill. United States v. Holcomb, 657 F.3d 445, 446 (7th Cir. 2011). Pursuant to the Attorney General's position, the applicable statutory maximum was thirty years pursuant to 21 U.S.C. § 841(b)(1)(C), and thus the total offense level was 34, rather than 37, pursuant to USSG § 4B1.1(b)(2).
Because the positions of the Seventh Circuit and the Attorney General were not consistent on this issue, Hester's sentencing was postponed during the pendency of two appeals concerning the retroactivity of the Fair Sentencing Act before the Supreme Court. On June 21, 2012, the Supreme Court decided Dorsey v. United States, 132 S.Ct. 2321 (2012), which resolved a split among the circuits and found that the Fair Sentencing Act's lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. After the Dorsey decision, Hester's sentencing was rescheduled and the probation department was directed to file an updated PSR reflecting the applicability of the Fair Sentencing Act to Hester's advisory guidelines calculations.
On August 1, 2012, the probation department prepared an updated PSR in conformity with Dorsey v. United States, 132 S.Ct. 2321 (2012). The report reflected that Hester was subject to a maximum term of imprisonment of ten years on Count One, pursuant to 18 U.S.C. § 922(g)(1). It further reflected that Hester was subject to a maximum term of imprisonment of thirty years for both Counts Two and Three, pursuant to 21 U.S.C. §§ 841(a)(1)(C) and 851. The statutory maximum for Counts Two and Three was increased as a result of an Information Stating Previous Conviction to Be Relied Upon in Seeking Increased Punishment pursuant to 21 U.S.C. § 851(a). Hester was not subject to any statutory mandatory minimum on any count of conviction against him. 21 U.S.C. §§ 841(a)(1)(C) and 851.
Hester's total advisory guidelines offense level was determined to be Level 34. Pursuant to USSG § 2K2.1(a)(2), the base offense level for Count One was 24, since Hester had at least two felony convictions of either a crime of violence or a controlled substance offense. This was increased an additional four levels pursuant to USSG § 2K2.1(b)(6) since Hester possessed the firearms in connection with another felony offense, namely, the narcotics offense charged in Count Two of the superseding indictment. The base offense level for Counts Two and Three was 22 pursuant to USSG §§ 2D1.1(a)(5) and (c)(9). This was increased an additional two levels pursuant to USSG § 2D1.1(b)(1) as a result of the possession of the firearms charged in Count One of the superseding indictment. Pursuant to USSG § 3D1.2(c), Hester's combined offense level was 28. Because Hester was a career offender, pursuant to USSG § 4B1.1(b)(A), and because Counts Two and Three carried a 30-year maximum penalty pursuant to 21 U.S.C. §§ 841(a)(1)(C) and 851 and the Supreme Court's decision in Dorsey, Hester's total offense level was 34.
Hester had 12 criminal history points and a criminal history category of V, although because he was a career offender pursuant to USSG § 4B1.1(b), his criminal history category became VI. Based on a total offense level of 34 and a criminal history category of VI, Hester's total advisory guidelines range was 262-327 months.
On December 4, 2012, Hester was sentenced to a 120-month term of imprisonment on Count 1 of the superseding indictment, and a 275-month term of imprisonment on Counts 2 and 3, to be served concurrently, followed by concurrent terms of supervised release of three, six, and eight years.
Hester appealed his conviction on December 4, 2012. On January 23, 2014, the Seventh Circuit affirmed his conviction. United States v. Hester, 552 Fed.Appx. 580, 2014 WL 243178 (7th Cir. January 23, 2014). The Seventh Circuit rejected each of Hester's contentions on appeal, finding that the Court correctly concluded that there was probable cause for the warrant to search Hester's apartment and that Hester did not make substantial preliminary showing required to obtain a Franks hearing. The Seventh Circuit further found that the Court correctly declined to compel production of the CI's identity. The Seventh Circuit also found that Hester's Speedy Trial rights were not violated, his Sixth Amendment rights were not violated by the failure of attorney William Laws to file an appearance form, and he did not lack representation during critical stages of the proceedings. The Seventh Circuit also found that this Court correctly refused to dismiss the gun charge against Hester on the basis of Buchmeier v. United States, 581 F.3d 561, 567 (7th Cir. 2009). The Seventh Circuit further found that the evidence at trial against Hester was ...