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Zweigart v. United States

United States District Court, S.D. Illinois

March 31, 2015

STEVEN A. ZWEIGART, II, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 12-cr-40103-JPG-001

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on petitioner Steven A. Zweigart, II's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Government has responded to Zweigart's motion (Doc. 6), and Zweigart has replied to that response (Doc. 7).

I. Background

In March 2013, the petitioner pled guilty to one count of conspiracy to manufacture a mixture and substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. As part of the plea agreement, the petitioner conceded he was a career offender under United States Sentencing Guidelines Manual ("U.S.S.G.") § 4B1.1(a) in exchange for the Government's agreement not to file an information under 21 U.S.C. § 851 because of a prior felony drug conviction. The information would have increased the petitioner's sentencing range from no more than 20 years to no more than 30 years. See 21 U.S.C. § 841(b)(1)(C).

At the petitioner's sentencing in August 2013, the Court adopted the finding in the Presentence Investigation Report ("PSR") that Zweigart's relevant conduct was 736.2 kilograms of marihuana equivalent, which established a base offense level of 30 under U.S.S.G. § 2D1.1(c). However, as contemplated in the plea agreement, the Court found that the petitioner was a career offender under U.S.S.G. § 4B1.1 based on two prior felony convictions for a crime of violence or controlled substance: a prior convictions under Illinois law for unlawful possession of methamphetamine manufacturing chemicals and a prior convictions under Illinois law for domestic battery. The career offender base offense level, based on the statutory maximum of 20 years, was 32. Because the career offender guideline yielded a higher total offense level than the relevant conduct guideline, the Court used the career offender offense level to calculate the petitioner's sentencing range. See U.S.S.G. § 4B1.1(b). The Court then reduced the petitioner's offense level by 3 points under U.S.S.G. § 3E1.1(a) and (b) because Zweigart accepted responsibility for his crime. Considering the petitioner's total offense level of 29 and his criminal history category of VI, established by his career offender status, see U.S.S.G. § 4B1.1(b), the Court found the petitioner's guideline sentencing range to be 151 to 188 months. The Court sentenced the petitioner to serve a total of 163 months in prison. The petitioner did not appeal his sentence.

In his timely § 2255 motion, the petitioner argues that, in light of Descamps v. United States, 133 S.Ct. 2276 (2013), his counsel was constitutionally ineffective in violation of his Sixth Amendment right to counsel when he advised him to concede in his plea agreement that he was a career offender and when he failed to object to application of the career offender guideline at sentencing. He also challenges the sufficiency of the factual basis for his career offender status. Underlying these arguments is his belief that his prior conviction for domestic battery does not qualify as a "crime of violence" for career offender purposes. He asks that his sentence be vacated and reimposed without the career offender enhancement. In his reply brief, Zweigart makes clear he does not want to withdraw his plea on the basis that it was involuntary. Pet.'s Reply at 6 ("Mr. Zweigart does not seek to invalidate his plea....").

In response, the Government argues that Zweigart was properly classified as a career offender because his prior conviction for domestic battery was a "violent felony" under U.S.S.G § 4B1.2(a)(1). Therefore, his counsel was not deficient for failing to object to the career offender recommendation in the PSR, and Zweigart was not prejudiced from this failure. The Government further notes that Zweigart's counsel secured a benefit for him by arranging a deal where Zweigart would agree to the career offender status in exchange for the Government's promise not to file a § 851 enhancement. Finally, the Government argues that an erroneous career offender designation is not cognizable in a § 2255 proceeding.

II. § 2255 Standards

The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[r]elief under § 2255 is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.'" United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013), cert. denied, 134 S.Ct. 2830 (2014)), cert. denied, No. 14-8459, 2015 U.S. Lexis 2050 (Mar. 23, 2015). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). No hearing is necessary in this case because the record clearly demonstrates Zweigart is entitled to no relief.

III. Analysis

A. Ability to Raise the Issue in a § 2255 Proceeding

As a preliminary matter, the Court addresses the Government's contention that Zweigart's classification as a career offender is not cognizable in a § 2255 motion. This is not completely true. It is true that United States v. Coleman, 763 F.3d 706, 708-09 (7th Cir. 2014), cert. denied, No. 14-8459, 2015 U.S. Lexis 2050 (Mar. 23, 2015), and Hawkins v. United States, 706 F.3d 820, 823 (7th Cir.), supp'd by 724 F.3d 915 (7th Cir. 2013), cert. denied, 134 S.Ct. 1280 (2014), hold that, if a defendant's sentence is within the statutory range, an erroneous career offender finding is not cognizable in a § 2255 proceeding. This is because, in light of the Court's discretion to give an appropriate sentence regardless of the advisory guideline range, an erroneous career offender finding does not work a miscarriage of justice for § 2255 purposes. Thus, Zweigart's direct challenge to his career offender status and the calculation of his guideline range based on that status is not cognizable here.

However, in addition to a direct challenge to his career offender status, Zweigart has invoked the Sixth Amendment right to counsel to bring the issue properly before the Court. See United States v. Jones, 635 F.3d 909, 916 (7th Cir. 2011) ("In the sentencing context, an attorney's unreasonable failure to identify and bring to a court's attention an error in the court's Guidelines calculations that results in a longer sentence may constitute ineffective assistance entitling the defendant to relief."). In the Sixth Amendment context, the Court can properly consider whether ...


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