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Russell v. United States

United States District Court, C.D. Illinois

February 26, 2018

MICHAEL C. RUSSELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND OPINION

          James E. Shadid Chief United States District Judge.

         Now before the Court is Petitioner Russell's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Doc. 1. For the reasons set forth below, Petitioner's Motion (Doc. 1) is DENIED and the Court declines to issue a Certificate of Appealability.

         Background[1]

         On May 20, 2014, Michael Russell was charged in a one-count indictment in the Central District of Illinois with conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). R. 2. On October 29, 2014, Russell pleaded guilty to the charge in the indictment in a written plea and cooperation agreement (R. 35, 36), and a change of plea hearing was held before Magistrate Judge Hawley, who issued a Report and Recommendation recommending that the plea of guilty be accepted. R. 40. In the cooperation agreement, Russell and the United States agreed that, inter alia,

10. The United States agrees that it will fully inform the court in any sentencing hearing of the nature, extent, and value of your client's cooperation. At this time, the United States is not making and has not made any promise or commitment of any kind to you or your client regarding the prosecution of any offense or the sentence in any case.
11. The United States reserves the right, at its sole discretion, to make a motion at the time of sentencing for a downward deviation from the sentencing guideline range pursuant to § 5K1.1 of the Sentencing Guidelines and a downward departure from any mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e) if your client provides substantial assistance in the investigation or prosecution of other criminal offenses. The extent of any such recommended deviation or departure will depend solely upon the United States' evaluation of the nature, extent, and value of your client's assistance, including his truthfulness.
12. Your client agrees that he will not frivolously contest any issues in his pending federal criminal proceeding, and will waive his right to appeal and to collaterally attack his conviction and sentence. Your client understands and agrees that his refusal to make a written waiver of these rights may form the basis for the United States to refuse to recommend a downward deviation from the sentencing guidelines or any mandatory minimum sentence for any substantial assistance provided by your client.

         R. 36, at 2-3. Similarly, Russell and the United States agreed to, inter alia, the following terms as part of Russell's plea agreement:

9. The defendant expressly waives any right the defendant has pursuant to Title 21, United States Code, Section 851 to require the United States Attorney's Office to file and serve information stating in writing the prior felony drug convictions that support any enhanced sentence.
10. The defendant is aware that federal law, specifically, Title 28, United States Code, Section 1291, affords a defendant a right to appeal a final decision of the district court and that federal law, specifically, Title 18, United States Code, Section 3742, affords a defendant a right to appeal the conviction and/or sentence imposed. Understanding those rights, and having thoroughly discussed those rights with the defendant's attorney, the defendant knowingly and voluntarily waives the right to appeal any and all issues relating to this plea agreement and conviction and to the sentence, including any fine or restitution, within the maximum provided in the statutes of conviction, and the manner in which the sentence, including any fine or restitution, was determined, or any ground whatever, in exchange for the concessions made by the United States in this plea agreement, unless otherwise stated in this paragraph. The waiver in this paragraph does not apply to a claim of involuntariness or ineffective assistance of counsel.
11. The defendant also understands that he has a right to attack his conviction and/or sentence collaterally on the grounds that it was imposed in violation of the Constitution or laws of the United States; that the Court was without proper jurisdiction; or that the conviction and/or sentence (including, but not limited to, the amount of any fine or restitution imposed) were otherwise subject to collateral attack. The defendant understands such attack is usually brought through a motion pursuant to Title 28, United States Code, Section 2255. The defendant and the defendant's attorney have reviewed Section 2255, and the defendant understands his rights under the statute. Understanding those rights, and having thoroughly discussed those rights with the defendant's attorney, and in exchange for the concessions made by the United States in this Plea Agreement, the defendant knowingly and voluntarily waives his right to challenge any and all issues relating to his plea agreement, conviction and/or sentence (including, but not limited to, the amount of any fine or restitution imposed), in any collateral attack, including, but not limited to, a motion brought under Title 28, United States Code, Section 2255. The waiver in this paragraph does not apply to a claim of ineffective assistance of counsel.
15. The defendant agrees that at the time of sentencing, the Court will not be bound by any recommendation made by any party, and that the Court will be free to impose whatever sentence it deems appropriate up to the statutory maximum. The defendant agrees and understands that the defendant will not be allowed to withdraw the defendant's guilty plea because of an objection to the calculation of the Sentencing Guidelines, or to the Court's sentencing findings or rulings, or because the defendant receives a sentence higher than that recommended under the plea agreement.
16. The United States reserves the right, in its sole discretion, to make a motion at the time of sentencing for a downward departure from the advisory Sentencing Guideline range pursuant to United States Sentencing Guidelines Section 5K1.1, and from any mandatory minimum sentence pursuant to Title 18, United States Code, Section 3553(e), if the defendant provides substantial assistance in the investigation or prosecution of other criminal offenses. The extent of any such recommended departure will depend solely upon the United States' evaluation of the nature, extent, and value of the defendant's assistance, including the defendant's truthfulness.
21. At the time of sentencing the United States agrees to recommend the following: the United States agrees to recommend a sentence at the low end of the advisory Sentencing Guideline range or the mandatory minimum, whichever is higher. The parties agree the amount of heroin ...

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