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United States v. Bostic

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

January 16, 2018



          MATTHEW F. KENNELLY, District Judge

         In February 2012, Dana Bostic pled guilty to conspiracy to possess heroin with intent to distribute. In August 2012, the Court sentenced him to a prison term of 456 months. On appeal, the Seventh Circuit vacated Bostic's sentence and remanded his case for resentencing in light of an intervening Supreme Court case invalidating the ex post facto application of a particular sentencing enhancement. See United States v. Adams, 746 F.3d 734, 749 (7th Cir. 2014). The Court resentenced Bostic to 360 months' imprisonment in January 2015, and the Seventh Circuit affirmed this sentence on appeal. See United States v. Gill, 824 F.3d 653, 666 (2016). Bostic has moved to vacate his sentence pursuant to 28 U.S.C. § 2255(a).


         The Court assumes familiarity with the background facts of Bostic's criminal case. In a nutshell, in 2009, the Chicago Police Department and the Drug Enforcement Administration began investigating the New Breeds, a violent street gang that ran an extensive heroin distribution operation on the west side of Chicago. At the time, Dana Bostic controlled the New Breeds. He also supplied the heroin sold by the street-level members and received the proceeds from those sales. The investigation culminated in November 2010 with a twenty-two count grand jury indictment charging Bostic and thirteen others with various drug-related offenses. Bostic pled guilty to the first count: conspiracy to possess at least 1000 grams of heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846.

         At Bostic's original sentencing hearing, the Court determined that his advisory Sentencing Guidelines range was 360 months to life, based on his criminal history category of II and an adjusted offense level of 42. This adjusted offense level included, among other enhancements, a two-level enhancement for maintaining a premises for the purpose of manufacturing or distributing drugs ("the stash house enhancement"), even though that enhancement had not gone into effect until after Bostic had already committed the conspiracy offense. See U.S.S.G. § 2D1.1(b)(12). After noting that then-existing Seventh Circuit precedent provided that the Ex Post Facto Clause did not apply to the Sentencing Guidelines, the Court explained that it would use 18 U.S.C. § 3553(a) to factor into Bostic's sentence the unfairness of applying the stash house enhancement "after the fact." Sentencing Tr. 19:1-19:15.[1] At the close of the two-day sentencing hearing, at which three of Bostic's co-conspirators testified, the Court sentenced him to 456 months in prison and 10 years of supervised release, noting that this sentence was approximately in the middle of the advisory range. Bostic appealed, and the Seventh Circuit vacated and remanded his case for resentencing based on its conclusion that the application of the stash house enhancement was in error, in light of an intervening Supreme Court decision holding that the Ex Post Facto clause does indeed apply to the Sentencing Guidelines. See Adams, 746 F.3d at 749.

         At Bostic's resentencing hearing, the Court incorporated its comments from the original hearing (except to the extent that they were inconsistent with points the Court made at resentencing) and recalculated his offense level at 38. This recalculation reflected the elimination of the stash house enhancement, as well as another two-level reduction in the offense level in anticipation of an applicable amendment to the Guidelines. In light of Bostic's criminal history category of II, this new offense level yielded an advisory range of 262 to 327 months' imprisonment. After determining the new range, the Court explained that, when it imposed Bostic's original sentence of 456 months' imprisonment, it accounted for the ex post facto nature of the stash house enhancement by considering it as a section 3553(a) factor and reducing Bostic's effective advisory range to 324 to 405 months even though, with the enhancement, the actual advisory range was 360 months to life. Resentencing Tr. 33:6-34:11.[2] The Court explained that it originally gave Bostic a sentence that was 51 months above that effective guideline range in order to fully account for his conduct during the conspiracy and his involvement in related violence. Id. at 34:9-34:18. Thus, at resentencing, the Court announced it was imposing a new sentence of 360 months, which was proportional to the initial sentence in the sense that it was "roughly the same[ ] amount of increase over the top end" of the new guideline range of 262 to 327 months as the initial sentence of 456 months was when compared to the effective guidelines range of 324 to 405 months. Id. at 36:12-36:14.[3] The Seventh Circuit affirmed Bostic's new, lower sentence in May 2016. See Gill, 824 F.3d at 664-66. In March 2017, Bostic filed the present motion to vacate his sentence pursuant to 28 U.S.C. § 2255(a).


         Section 2255 authorizes a court to vacate, set aside, or correct a sentence that was imposed in violation of the Constitution or other federal law or that is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Bostic contends that he is entitled to relief under section 2255 on six different grounds. First, he argues that he received ineffective assistance of counsel in violation of the Sixth Amendment because his attorney failed to object to the Court's application of the four-level leader/organizer role enhancement in the absence of a specific finding that Bostic was the leader of a conspiracy involving five or more participants. Next, Bostic argues that he received ineffective assistance of counsel because his attorney likewise failed to object to the Court's application of a two-level enhancement for the use of a firearm during the commission of a drug offense, contending that he was not shown to have personally possessed a gun. Bostic also argues that he should not have been assigned a criminal history point for a 1998 conviction for criminal trespass to a vehicle and that his attorney's failure to contest that point constituted ineffective assistance of counsel. He challenges a number of conditions of supervised release as unconstitutionally vague or otherwise improper and contends that his attorney's failure to object to them also constituted ineffective assistance. Bostic further argues that his above-guidelines sentence violates the Due Process Clause because it is the result of an improper initial Sentencing Guidelines calculation and that he received ineffective assistance of counsel because his attorney did not make this particular argument at the resentencing hearing or on appeal. Lastly, Bostic mistakenly asserts that the grand jury indictment is invalid because it was not signed by the grand jury foreperson or the U.S. Attorney.

         A defendant may not raise constitutional claims in a section 2255 motion that he did not raise on appeal, unless he can demonstrate (1) good cause for his failure to raise those claims and actual prejudice or (2) that the refusal to consider the claims would result in a "fundamental miscarriage of justice." McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). As a preliminary matter, the Court notes that Bostic does not initially frame a number of these arguments as ineffective assistance of counsel issues. Nonetheless, when explaining why these issues were not procedurally defaulted because they were not raised on direct appeal, Bostic makes it clear that these are, in fact, ineffective assistance of counsel claims. Additionally, in his reply brief, Bostic clarifies that all of the issues argued in his 2255 motion "were argued on the basis of ineffective assistance of counsel." Reply at 1. Bostic has not demonstrated that a refusal to consider these claims would result in a fundamental miscarriage of justice. Because he has not established cause and prejudice for any reason other than ineffective assistance of counsel, the Court considers all of these claims to be premised on ineffective assistance.

         An ineffective assistance of counsel claim may be brought for the first time under section 2255; a defendant does not procedurally default such a claim by failing to raise it on direct appeal. Gaylord v. United States, 829 F.3d 500, 506 (7th Cir. 2016). Nonetheless, "[i]t is well settled that, absent a fundamental miscarriage of justice, arguments based on the Sentencing Guidelines must be raised on direct appeal or not at all." Allen v. United States, 175 F.3d 560, 563 (7th Cir. 1999) (internal quotation marks and citations omitted). The Seventh Circuit has expressed a reluctance to allow defendants to circumvent this rule by recasting such arguments as ineffective assistance of counsel claims in collateral proceedings. Id. To ensure that "only Sentencing Guidelines errors of constitutional proportion are considered on collateral review, " the Seventh Circuit requires "strict adherence to the requirements of an ineffective assistance of counsel claim." Id.

         To prevail on an ineffective assistance claim, the defendant must establish not only that his attorney's performance "fell below an objective standard of reasonableness, " but also that he suffered prejudice as a result. Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 458 (citation omitted). Moreover, prejudice is established only if the defendant shows that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A defendant claiming ineffective assistance of counsel on a section 2255 motion is entitled to an evidentiary hearing on his claim "if he has alleged facts that, if proven, would entitle him to relief." Gaylord, 829 F.3d at 506 (internal quotation marks and citation omitted). But a district court is not required to grant a hearing before denying a 2255 motion if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); Sullivan v. United States, 877 F.3d 337, 339 (7th Cir. 2017).

         A. Role enhancement

         The federal Sentencing Guidelines provide for a four-level enhancement based on the defendant's role in the offense "[i]f the defendant was an organizer or leader of criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(a). A three-level enhancement is warranted "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." Id. § 3B1.1(b). A participant is someone "who is criminally responsible for the commission of the offense, but need not have been convicted." Id. § 3B1.1(a) Application Note 1. Bostic contends that his attorney's failure to object to this enhancement constituted ineffective assistance of counsel. Specifically, he argues that his attorney should have objected on the grounds that (1) the Court did not support its conclusion that Bostic was the organizer or leader of the conspiracy at issue, and (2) neither the Court nor the presentence report specifically identified at least five participants.[4]

         The Seventh Circuit has held that the district judge "must identify five participants in [the] offense" and determine whether the defendant exhibited leadership of or control over those participants in order to apply the four-level enhancement. United States v. Schweihs, 971 F.2d 1302, 1318 (7th Cir. 1992). Nonetheless, as the Government notes, even when the district court fails to make those specific findings, the Seventh Circuit will uphold the sentence on appeal if the record adequately supports a determination that the enhancement is ...

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