United States District Court, N.D. Illinois, Eastern Division
SAMUEL DER-YEGHIAYAN, District Judge.
This matter is before the court on Lorie Westerfield's (Westerfield) motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 (Section 2255). For the reasons stated below, the Section 2255 motion is denied.
On March 21, 2011, in case number 08 CR 466, a jury convicted Westerfield on Counts Two, Three, and Four of the indictment, which charged Westerfield with wire fraud. Westerfield subsequently filed a motion for judgment of acquittal and a motion for new trial, and the motions were denied on September 23, 2011. On February 28, 2012, Westerfield was sentenced to a total term of imprisonment of 72 months. Westerfield filed an appeal, and on April 9, 2013, the Seventh Circuit affirmed Westerfield's conviction and sentence. On April 9, 2014, Westerfield filed the instant Section 2255 motion.
Section 2255 provides that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States... may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. The relief sought in a Section 2255 motion "is an extraordinary remedy because it asks the district court essentially to 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).
Westerfield argues in the instant Section 2255 motion: (1) that the Ex Post Facto clause was violated because she was sentenced according to the sentencing guidelines in effect at the time of her sentencing rather than those in effect at the time of her offense (Claim 1), (2) that she received ineffective assistance of counsel at sentencing due to alleged deficiencies in arguments relating to a minor role reduction (Claim 2), (3) that she received ineffective assistance of counsel at trial due to alleged deficiencies in arguments relating to the ostrich instruction provided to the jury (Claim 3), and (4) that she received ineffective assistance of counsel at sentencing due to alleged deficiencies in arguments relating to the sophisticated means enhancement (Claim 4).
I. Ex Post Facto Clause (Claim 1)
Westerfield contends that pursuant to Peugh v. United States, 133 S.Ct. 2072 (2013), the Ex Post Facto Clause was violated in her criminal case because she was sentenced according to the sentencing guidelines in effect in 2012 at the time of her sentencing instead of those in effect at the time of her offense in 2002. (DE 1: 4). Westerfield contends that under the 2012 sentencing guidelines, her total offense level was 27, and that under the 2002 sentencing guidelines her total offense level would have been 26. The court at Westerfield's sentencing applied the 2012 sentencing guidelines, according to the precedent binding at that juncture in United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), in which the Seventh Circuit held that "applying the version of the guidelines in effect at the time of sentencing does not violate the Ex Post Facto Clause, even if that version took effect after the defendant committed the offense and even if the version increased the sentencing range." United States v. Jones, 763 F.3d 777, 814-15 (7th Cir. 2014). In 2013, the Supreme Court in Peugh, overruled Demaree and held "that the Ex Post Facto Clause is violated when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines sentencing range than the version in place at the time of the offense." Jones, 763 F.3d at 815 (internal quotation omitted)(quoting Peugh, 133 S.Ct. at 2078). However, Peugh was decided after Westerfield was sentenced in this case, and neither the Supreme Court nor the Seventh Circuit has indicated that Peugh has a retroactive effect. See United States v. Vela, 740 F.3d 1150, 1154 (7th Cir. 2014)(indicating that the Supreme Court did not intend Peugh to have a retroactive effect); Hawkins v. United States, 724 F.3d 915, 917 (7th Cir. 2013)(noting that "the Supreme Court didn't say that the rule it was announcing was to have retroactive effect"); see also United States v. Conrad, 2014 WL 4783049, at *4 (N.D. Ill. 2014)(stating that "[t]he Seventh Circuit, nonetheless, has concluded that the rule announced in Peugh does not apply retroactively on collateral review"); Cunningham v. United States, 2014 WL 4699590, at *4 (N.D. Ill. 2014)(stating that "because Petitioner's conviction became final before Peugh was decided and Peugh does not apply retroactively"). Thus, Westerfield has not shown that the Ex Post Facto Clause was violated in her criminal case.
II. Ineffective Assistance of Counsel (Claims 2-4)
Westerfield also contends that she received ineffective assistance of counsel at trial and at sentencing. To show ineffective assistance of counsel, a petitioner must establish that: "(1) h[er] attorney's performance fell below an objective standard of reasonableness, and (2) [s]he suffered prejudice as a result." Wyatt v. United States, 574 F.3d 455, 457-58 (7th Cir. 2009)(citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)); see also Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014)(stating that "[t]o reflect the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, [a court's] review of an attorney's performance is highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance")(quoting Yu Tian Li v. United States, 648 F.3d 524, 527-28 (7th Cir. 2011)).
A. Minor Role Reduction (Claim 2)
Westerfield argues that she received ineffective assistance of counsel at sentencing due to alleged deficiencies in arguments relating to a minor role reduction in calculating her total offense level. Westerfield contends that her counsel failed to show that she was "less culpable and non-essential compared to the average participant." (DE 1: 5). Westerfield's counsel provided extensive written and oral arguments as to why she should have received a two-level minor role reduction. The application notes to Section 3B1.2 states that a "minor participant is a defendant described in Application Note 3(A) who is less culpable than most other participants, but whose role could not be described as minimal." U.S.S.G. 3B1.2 cmt. n. 5. The mere fact that Westerfield's counsel was not successful with his arguments as to the minor role reduction does not mean that he failed to provide competent and effective representation for Westerfield. The record in this case shows that Westerfield was an integral player in the fraudulent scheme in this case. ...