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United States v. Barber

United States District Court, N.D. Illinois, Eastern Division

June 16, 2017



          Hon Virginia M. Kendall United States District Judge.

         Pursuant to 28 U.S.C. § 2255, Petitioner Mario Barber moved to Vacate, Set Aside, or Correct Sentence based on two claims of ineffective assistance of counsel: (1) his appellate counsel was ineffective on direct appeal for failing to “challenge the procedural reasonableness” of his sentence; and (2) his trial counsel was ineffective at sentencing for failing to challenge the sentencing guideline used by the Court. For the reasons stated herein, Barber's Motion is denied.


         On July 22, 2008, Barber and two co-defendants met with an undercover special agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and agreed to rob cocaine from a narcotics stash house. See United States v. Mahan, 08 CR 720 Dkt. 176 at 3. On the day of the planned robbery, Barber arrived at a designated meeting spot with a firearm. (Id.) The undercover agent confirmed with each individual present that they were aware that the home was expected to contain twenty kilograms of cocaine, to which Barber did not express reservation. (Id.) On November 6, 2008, a federal grand jury returned a multi-count indictment against Mario Barber, alongside his three co-defendants, James McKenzie, Steven Stewart, and Tony Mahan. See United States v. McKenzie, 656 F.3d 688 (7th Cir. 2011); see Fed. R. Evid. 201(b); Indep. Trust Corp. v. Stewart Info. Serv, 's Corp., 665 F.3d 930, 942 (7th Cir. 2012) (holding that the district court did not err in taking judicial notice of indictment and plea agreement when reciting procedural history of case). In Count One, Barber was charged with conspiracy to possess with intent to distribute mixtures containing in excess of 5 kilograms of cocaine, in violation of 21 U.S.C. § 846. (Dkt. 25 at 1.) In Count Two, Barber was charged with knowingly and intentionally possessing with the intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). (Id. at 2.) In Count Three, Barber was charged with knowingly possessing and carrying a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(2). (Id. at 3.) Barber pleaded guilty to Count Three, the § 924(c) firearms count, and he stipulated to the drug distribution charge in his plea agreement; specifically, Barber stipulated “for purposes of computing his sentence under Guideline § 1B1.2” that he agreed to complete a planned armed robbery of a “drug stash house purported to contain cocaine” in violation of 21 U.S.C. §§841(a)(1) and 846. (Dkt. 176. at 3-4.)

         Based on its review of the surveillance evidence, Probation concluded that Barber agreed to assist in the robbery of 20 to 30 kilograms of cocaine and recommended, along with the government, application of Guideline § 2D1.1, the Guideline applicable to a narcotics conspiracy. At sentencing, Barber disputed the base offense level, by challenging the amount of drugs at issue, but did not challenge the application of § 2D1.1. (Dkt. 250 at 10-28.) Ultimately, after hearing evidence and argument, the Court applied Guideline § 2D1.1, and based on its review of the surveillance evidence, overruled Barber's objection as to the amount of drugs at issue. (Id. at 28-29.) This calculation resulted in an offense level of 34, based upon an amount of fifteen to fifty kilograms of cocaine; specifically the Court ruled that Barber intended to rob the stash house of at least twenty kilograms of cocaine. (Id. at 28.) After applying Barber's criminal history level and reducing his range for acceptance of responsibility, his advisory guideline range was 101 to 135 months plus a consecutive 60-month mandatory sentence for the gun count. (Id. at 36.)

         The Court over-ruled the defense's objection made at the sentencing hearing regarding the amount of drugs contained in the conspiracy to distribute drugs that Barber stipulated to in his plea agreement and the Seventh Circuit affirmed the Court's calculation. McKenzie, 656 F.3d at 691. After concluding that the advisory range was 108-135 months plus another consecutive 60 months (therefore a range of 168 on the low end and 195 on the high end) and addressing each of the sentencing factors under 18 U.S.C. § 3553, the Court imposed a total sentence of 120 months - essentially varying downward to a 60 month sentence on the stipulated drug conduct followed by a mandatory 60 month consecutive sentence for the gun count, followed by a three-year period of supervised release. (Dkt. 250 at 50-51.) The Court justified the large variance downward by explaining that the seriousness of the crime was over-rated due to the government's complete creation of the drug quantity amount. (Id. at 47.)

         Barber appealed his sentence, arguing that the Court erred in finding that the amount of cocaine involved in the planned robbery was at least twenty kilograms producing a base offense level of 34. McKenzie, 656 F.3d at 691. The Seventh Circuit denied Barber's appeal, finding that Barber could reasonably foresee that he was robbing twenty kilograms and affirmed his conviction and sentence. (Id.) See also United States v. Cochran, 955 F.2d 1116, 1124 (7th Cir. 1992) (“[a] defendant is responsible for the amount of drugs that he knew, or should reasonably have foreseen, was the object of the conspiracy.”). The Seventh Circuit further credited the Court's analysis of the seriousness of the offense when affirming the Court's significant variance from the guideline range. McKenzie, 656 F.3d at 691-92. On September 23, 2011, the Seventh Circuit entered final judgment. (Dkt. 266.)

         On December 10, 2015, Barber petitioned this Court to reduce his sentence to 100 months from the 120 months pursuant to Amendment 782 which provided a new reduced guideline range of 87-108. (Dkt. 291.) On April 18, 2016, after reviewing his request and the sentence imposed, this Court denied his sentencing reduction request citing the fact that he had already received a much lower sentence than even the one that he would have received with the two-level difference in his advisory guideline range had Amendment 782 been applied. (Dkt. 305.) On April 26, 2016, Barber appealed the Court's denial of a further reduction in his sentence pursuant to Amendment 782 but his appeal was dismissed on August 9, 2016, for failure to prosecute. (Dkt. 306; Dkt. 319.)

         After filing his appeal of this Court's denial of his 782 petition, Barber filed this petition to vacate his sentence under § 2255 on May 5, 2016 -- almost five years after his judgment was entered. Specifically, Barber claims that his appellate and trial lawyers were ineffective due to their failure to argue that gun Guideline § 2K2.4(b) should have been used to calculate his sentence, instead of the drug Guideline § 2D1.1. (Dkt. 1 at 6, 10.)


         Under § 2255, a federal prisoner may move the district court that imposed his or her sentence to vacate it, set it aside, or correct it. See 28 U.S.C. § 2255. Such a motion seeks “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). In order for a federal prisoner to obtain relief under § 2255, “he must show that the district court sentenced him ‘in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting 28 U.S.C. § 2255). Thus, “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.” Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.


         I. Barber's Motion is Barred by the Statute of Limitations

         Section 2255 expressly states that “[a] 1-year period of limitation shall apply to a motion under this section.” 28 U.S.C. § 2255(f). This limitation begins on the latest of several stated dates, the first being “the date on which the judgment of conviction becomes final[.]” 28 U.S.C. § 2255(f)(1). The limitations period may also start on the date on which an impediment to making a motion is removed, the date on which a newly recognized right made retroactively applicable by the Supreme Court has ...

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