United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
RUBÉN CASTILLO, Chief District Judge.
Lionel Lechuga ("Petitioner") is serving a 20-year sentence for his participation in a racketeering and narcotics conspiracy. He filed a petition to vacate his sentence under 28 U.S.C. § 2255 ("the Petition"). (R. 1, Pet.) For the reasons set forth below, the Petition is denied.
I. Petitioner's Conviction
The facts underlying Petitioner's conviction are set forth in three opinions by the Seventh Circuit, and several orders of this Court. See United States v. Morales, 655 F.3d 608 (7th Cir. 2011); United States v. Benabe, 654 F.3d 753 (7th Cir. 2011); United States v. Benabe, 436 Fed.App'x 639 (7th Cir. Aug. 18, 2011) (per curiam); United States v. Delatorre, 572 F.Supp.2d 967 (N.D. Ill. 2008); United States v. Delatorre, 522 F.Supp.2d 1034 (N.D. Ill. 2007); United States v. Delatorre, 508 F.Supp.2d 648 (N.D. Ill. 2007); United States v. Delatorre, 438 F.Supp.2d 892 (N.D. Ill. 2006). They are repeated here only as they pertain to the present Petition.
A. The Insane Deuces Street Gang
In 2002, state and federal authorities began an intensive investigation into the Insane Deuces street gang after one of its members, Orlando Rivera, agreed to serve as a confidential informant. Morales, 655 F.3d at 615. Petitioner was among sixteen men indicted on various racketeering-related charges in connection with the investigation. Id. The evidence adduced at trial showed that the Insane Deuce Nation (the "Insane Deuces") was an organized street gang affiliated with the Folks, a national network of local gangs. Id. The gang was predominantly made up of Latino/Hispanic males and operated primarily within northern Illinois, though other factions existed throughout Illinois and various state and federal prisons. Id. The government's investigation focused on the Aurora Deuces, a chapter of the Insane Deuces with a significant presence in Aurora, Illinois. Id. As of 2002, the Aurora Deuces had become bitter rivals of the Latin Kings (also referred to as the "Kings"). Id. at 616. This rivalry resulted in "frequent and escalating violence, " and often resulted in attacks on innocent persons who were mistakenly believed to be rival gang members. Id.
The Insane Deuces had its own set of "leyas, " or laws, as well as a detailed hierarchy. Id. There were three tiers of membership within the gang: Seniors, Juniors, and Shorties. Id. Shorties were the gang's youngest members, and they held the responsibility of carrying out most of the gang's activities, including shootings and other acts of violence, as well as selling drugs to fund the gang. Id. Shorties were often juveniles who were recruited to increase the gang's ranks. Id. By participating in gang activities, Shorties could work their way up to becoming Juniors, who were responsible for the gang's day-to-day operations. Id. Juniors directed Shorties in their activities, including determining who would participate in particular acts of violence, distributing firearms, and otherwise supervising the Shorties' activities. Id. Seniors were "longstanding members of the gang whose age and accomplishments made them the leaders, broad-scope planners, and advisors for the gang." Id. Seniors directed Juniors on larger issues, but they were more removed from the gang's day-to-day activities. Id.
The gang's daily activities included selling drugs to benefit the gang, carrying out "missions" (attacks on rival gang members), protecting and supporting fellow gang members and their families, punishing gang members who violated the gang's rules, and conducting meetings to further these goals. Id. The gang also maintained a "caja" system, which was "a loose form of community property and money acquired for the benefit of gang members." Id. For instance, if a gang member was arrested, other members of the gang could use money from the caja to bail him out of jail. Id. The caja also included a stash of drugs from which a gang member could borrow to make sales or trades for the benefit of the gang. Id. Gang members were also permitted to sell drugs from outside sources, but all sales needed to benefit the gang in some way, usually by paying part of the proceeds into the caja. Id. Profits from drug sales were used to purchase firearms for the gang. Id. These guns were used to conduct missions and to protect fellow gang members, and were usually returned to the caja after the mission was completed, unless they were disposed of to avoid ballistics evidence after someone was killed. Id.
Participation in the gang was mandatory for Juniors and Shorties; this included gang members who were "rolled back" from Senior to Junior status in 2002 as part of an effort to better train and lead the gang's growing number of Shorties. Id. Every Junior and Shorty member had to pay dues to the caja. Id. Missions were assigned to specific gang members, usually Shorties, and primarily consisted of attacks on rival gang members in retaliation for acts of violence or perceived encroachment on the gang's territory. Id. at 616-17. Guns were distributed for these missions, and gang members were directed to empty the entire magazine or suffer punishment for every bullet that was not fired. Id. at 617. In addition to these planned attacks, members of the gang were required to comply with a "standing order" to attack Latin Kings whenever they had the opportunity to do so. Id. Members worked their way up through the gang by participating in missions and other acts of violence, and by donating money or firearms to the caja through drug sales or theft. Id. In exchange for their participation, gang members and their families received financial support and physical protection; these benefits applied to gang members on the street as well as those members incarcerated in correctional facilities throughout Illinois. Id.
Working with law enforcement, Rivera surreptitiously recorded several meetings and conversations between Insane Deuces, reported on the gang's activities and plans, and conducted controlled buys of narcotics and firearms from gang members. Id. The intelligence gathered through Rivera produced evidence regarding "four murders, eleven attempted murders, two solicitations to commit murder, other shootings, and narcotics distribution incidents - all of which the Deuces perpetrated in 2002 alone." Id. From information obtained through Rivera, government authorities learned about each of the defendants' roles in the gang. Id. The Seventh Circuit summarized Petitioner's involvement in the gang as follows:
Lechuga was another older Deuce who had been rolled back to Junior status. The record shows conflicting accounts of his previous status: he asserts that he was retired and that he was pulled back in when Deuce leadership raised the retirement age to 35, but contrary evidence indicated that he was a Senior Deuce prior to the rollback. Regardless, he was upset with the manner of the rollback, but nevertheless did resume active participation in the gang's affairs. He also noted that he'd remained willing to be involved while in retired or Senior status. He counseled Deuce leaders on how best to carry out inter-gang warfare within the Folks network without risking their ability to protect their members in prison. He also advocated changes in the caja system to increase efficiency in fronting drugs to gang members, perhaps as a result of his being unable to obtain from an enforcer the cocaine he'd requested for resale in July 2002.
Id. at 618.
B. Trial Proceedings
Following an extensive investigation, a federal grand jury indicted Petitioner and fifteen other Insane Deuces on charges of racketeering conspiracy; assault with a dangerous weapon, murder, attempted murder, and conspiracy to commit murder in aid of racketeering activities; illegal possession of firearms; distribution and possession of narcotics; and conspiracy to distribute narcotics. Id. One of the sixteen pled guilty, and another remained a fugitive. Id. The Court divided the remaining fourteen defendants into two groups for purposes of trial. Id. Petitioner was grouped with the "less major players, " which was to be tried before U.S. District Judge Harry D. Leinenweber. Id. In December 2007, the government filed a notice of prior conviction pursuant to 21 U.S.C. § 851 ("851 Notice"), which raised Petitioner's mandatory minimum sentence on the drug conspiracy count to 20 years in prison, based on his prior conviction for manufacture/delivery of cocaine. (R. 50, Stip. Facts ¶ 11.)
In April 2008, Judge Leinenweber commenced the trial of the less major players. United States v. Morales , No. 03 CR 90, 2009 WL 1456567, at *1 (N.D. Ill. May 22, 2009). However, a mistrial was declared shortly after opening statements, when several jurors asked to be removed from the jury due to concerns about their safety. Id. The retrial was scheduled for October 2008. Id. In the interim, the trial of the other group of defendants - the so-called "leaders" of the gang - proceeded before this Court, and all but one of the defendants were convicted of racketeering conspiracy and other offenses. Benabe, 654 F.3d at 757.
In October 2008, a retrial of the less major players was held. Morales, 655 F.3d at 619. On the government's motion, Judge Leinenweber empaneled an anonymous jury. Id. The trial spanned more than two months, during which time the government presented extensive witness testimony, recordings of gang meetings, and forensic evidence establishing the gang's activities, rules, and purpose. Id. The government's key witness, Rivera, described the inner workings of the gang, explained what was said in the various recorded meetings, and described the gang's organization and means of rule enforcement. Id. Two other former gang members, Lorenzo Becerra and Akeem Horton, testified in cooperation with the government regarding the gang's activities and the scope of participation of each individual defendant. Id. The government also presented testimony from a variety of police officers and federal agents, as well as several victims of the violence perpetrated by the gang. Id.
After a week of deliberations, the jury returned its verdicts finding Petitioner and all but one other defendant guilty of racketeering conspiracy. Id. The jury also found Petitioner and others guilty of distribution of narcotics. Id. A second phase of the trial was then conducted, wherein the jury returned special verdicts as to each defendant; "the special verdicts were highly individualized, differentiating between the defendants on shared counts." Id. As to Petitioner, the jury found that the government had not proven the drug amounts listed on the verdict form. (R. 50, Stip. Facts ¶ 21.) Specifically, the jury found that Petitioner was involved in a narcotics conspiracy involving less than 500 grams of cocaine, and no crack cocaine or marijuana. ( Id. ) Petitioner was ultimately sentenced to 20 years on the RICO count and 20 years on the drug count, to run concurrently. (R. 50, Stip. Facts ¶ 25.)
On appeal, the defendants raised a variety of joint and individual arguments in what the Seventh Circuit described as a "virtual cannonade of briefing[.]" Morales, 655 F.3d at 620. Jointly, the defendants argued that the Court erred in empanelling an anonymous jury, erred in denying their motions for severance, and erred in handling an allegation of juror misconduct that arose during the trial. Id. at 620-26. Petitioner separately argued that there was insufficient evidence to support his conviction because of the evidence demonstrating that he had withdrawn from the gang years earlier. Id. at 640-41. He also raised two arguments related to his sentence: that the Court erred in holding him accountable for violent acts committed by other gang members, and erred in categorizing him as a career offender. Id. at 641-43. In a lengthy published opinion, the Seventh Circuit rejected each of these arguments and affirmed Petitioner's conviction and sentence in all respects. Id. at 620-47.
II. Section 2255 Petition
In November 2012, Petitioner filed the present Petition. (R. 1, Pet.) He claims that he received ineffective assistance from his trial counsel, Patrick Blegen, because Blegen failed to advise him that his past criminal history qualified him as a career offender under the United States Sentencing Guidelines ("the Guidelines"). ( Id. at 1-2.) Petitioner claims that Blegen's deficient advice on this issue caused him to reject a favorable plea offer made by the government during the trial. ( Id. ) Upon Petitioner's request, this Court appointed counsel to represent him in connection with his Petition. (R. 17, Min. Entry.) The Court expresses its gratitude to attorneys Erica Zunkel and Alison Siegler of the Mandel Legal Aid Clinic, as well as their students from the University of Chicago Law School, for their excellent representation of Petitioner in this matter. The Court likewise commends Ashwin Cattamanchi, a Federal Defender with the U.S. District Court for the Northern District of Indiana, who generously served as an expert in this case pro bono, spending many hours of his own time reviewing documents and testifying at an evidentiary hearing.
On October 30, 2014, and November 6, 2014, the Court held an evidentiary hearing on the Petition, taking testimony from Petitioner, Blegen, several prosecutors involved in the case, and Petitioner's expert, Cattamanchi. ( See R. 55, Min. Entry; R. 56, Min. Entry.) Following the evidentiary hearing, the parties submitted extensive post-hearing briefs and exhibits for this Court's consideration. ( See R. 61, Pet'r's Br.; R. 63, Gov't's Resp.; R. 67, Pet'r's Reply; R. 61-1 to R. 61-42, Exs.)
A. Blegen's Representation and Sentencing Calculations
At the evidentiary hearing, Blegen testified that he was admitted to the bar in 1994 and had been a member of this District's Criminal Justice Act ("CJA") panel for approximately 15 years. (Tr. at 120.) Blegen had handled many drug trials and two RICO conspiracy trials prior to handling Petitioner's case. (Tr. at 176.) He was well acquainted with the maximum penalties for RICO charges and federal drug offenses. ( Id. ) Blegen filed his appearance in January 2008; at that point, the Indictment had been pending against Petitioner for more than two years and the scheduled trial date was a little more than two months away. (Tr. at 122; see also Delatorre, R. 42, First Superseding Indictment.) Blegen took over the case at the request of a colleague, James Tunick, who due to scheduling difficulties had been unable to file a number of pretrial motions Petitioner had asked him to file. (Tr. at 122; see also Delatorre, R. 668, Mot. to Withdraw.) Blegen was told by Tunick that "the case  was going to go to trial." (Tr. at 122.) Blegen also understood from Tunick that no matter what had transpired up until that point, "the trial date was not getting moved." (Tr. at 173.) Thus, Blegen worked quickly to get up to speed on the case and prepare for trial, spending hundreds of hours working on the case. (Tr. at 174.)
According to Blegen, Petitioner was "very involved" in his case from the very beginning. (Tr. at 174-75.) In fact, it was Petitioner who first suggested the defense strategy adopted by Blegen, which was that Petitioner had withdrawn from the gang several years before the government's investigation began. (Tr. at 175.) Petitioner wrote letters to Blegen regularly, conducted his own legal research, and sent Blegen ideas regarding the upcoming trial. (Tr. at 82-83, 175.) In one such letter written in March 2008, Petitioner told Blegen that he was "impressed" with his handling of the case thus far. (R. 61-2, Letter of 3/11/08 at 1.) Petitioner mentioned having done some legal research on a sentencing issue, and asked Blegen a question about whether a particular case might be applied to him, stating that he was "going to continue doing some research." ( Id. ) He then stated: "I can't see myself pleading guilty to a drug conspiracy. What are the chances of me pleading guilty to count one only? Either way, we ...