United States District Court, N.D. Illinois, Eastern Division
For United States of America, Plaintiff: Stuart D. Fullerton, United States Attorney's Office (NDIL), Chicago, IL.
Eddie Bell, Defendant, Pro se, Lisbon, OH.
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, United States District Judge.
Eddie Bell was convicted by a jury on crack cocaine distribution charges and sentenced to 300 months in custody. The Court of Appeals affirmed the convictions of Bell and three co-defendants, but ordered a limited remand to give this court an opportunity to consider re-sentencing them in the wake of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). United States v. Martin, 618 F.3d 705, 739 (7th Cir. 2010). This court declined to re-sentence any of the four, and the Court of Appeals affirmed in an unpublished order dated November 14, 2011. United States v. Martin, Nos. 07-2272, 07-4010, 07-3893, 07-3940, 2011 WL 5519811 (7th Cir. Nov. 14, 2011). Bell has filed a timely petition for relief from his sentence pursuant to 28 U.S.C. § 2255, raising two claims: (1) that counsel abandoned him at a critical stage in the proceedings; and (2) that counsel was ineffective at sentencing in failing to challenge certain sentencing enhancements imposed on the basis of facts not found by a jury. In support of this second claim, Bell relies on United States v. O'Brien, 560 U.S. 218, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010).
The court concludes that trial counsel was not ineffective for failing to make a sentencing argument that would have been inconsistent with controlling circuit law, but that his abandonment claim supports § 2255 relief. The court therefore grants his petition and will appoint counsel to pursue an appeal from this court's decision refusing to re-sentence him.
FACTUAL AND PROCEDURAL HISTORY
Petitioner Bell is one of dozens of alleged co-conspirators indicted on narcotics distribution charges in September 2004. See generally United States v. Martin, 618 F.3d 705, 707 (7th Cir. 2010). Petitioner proceeded to trial along with Troy Martin and two other co-defendants. Other co-Defendants, John Braboy, Mario Taylor, and Jerome Terrell were tried separately. Petitioner Bell and several of the others
were found guilty. Martin, 618 F.3d at 708. At sentencing, this court made a determination of the specific quantity of crack cocaine at issue, and then applied enhancements for Bell's possession of a weapon and his role in the conspiracy, pursuant to Federal Sentencing Guidelines § 2D1.1(b)(1) and § 1B1.3. ( See Order, United States v. Martin, No. 04-CR-495, , hereinafter " R. 2483," 4.) After determining his guideline sentence range of 360 months to life, the court sentenced Bell to a below-guideline sentence of 300 months in custody. (R. 2483 at 2.)
II. Appeal and Remand
Petitioner and co-Defendants Martin, Braboy, and Taylor filed timely appeals. United States v. Martin, 618 F.3d 705 (7th Cir. 2010). The Seventh Circuit affirmed their convictions, but ordered a limited remand in accord with United States v. Taylor, 520 F.3d 746, 748-49 (7th Cir. 2008). Prior to Taylor, district courts were bound by an interpretation of the Sentencing Guidelines that gave crack cocaine distribution a weight 100 times greater than the equivalent weight of powder cocaine. The remand directed this court to determine whether it would impose the same sentence on Bell and his co-defendants, if the court had been aware that it was free to question the crack cocaine weighing practice.
On remand, this court pointed out that the amount of crack cocaine was not the driving force behind Bell's sentence. (R. 2483 at 4.) In a written ruling, the court noted that the amount of crack cocaine for which Bell was responsible was just one factor (along with Petitioner's criminal history, his use of a weapon, and his aggravating role in the offense) that resulted in the maximum guideline range, even without consideration of the government's argument for a two-point sentence increase for obstruction of justice. And, as the court also noted, despite these factors, the court had imposed a sentence 60 months below the low end of the guideline ...