United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. SIMON CHIEF JUDGE
Steele participated in the armed robbery of a restaurant in
Hammond, Indiana back in 2004. He was charged with the
robbery in state court and received a 15 year sentence. He
was then charged in this court with being a felon in
possession of firearms in violation of both 18 U.S.C.
§922(g)(1) and the Armed Career Criminal Act, 18 U.S.C.
§924(e)(1). Count 1 charged Steele with the possession
of the firearms used in the robbery, and Count 2 charged him
with possession of shotguns he admitted to keeping in a
storage unit from which they were recovered. Steele pled
guilty to Count 2 and in his plea agreement stipulated to a
binding sentence of 15 years, the statutory mandatory minimum
term of imprisonment applicable under the ACCA. [DE 11 at 4.]
now seeks to set aside his federal sentence under 28 U.S.C.
§2255. Because the motion is filed almost eight years
after the judgment, Steele has also filed a motion to
equitably toll the one-year statute of limitations ordinarily
applicable to §2255 motions. Because I conclude that
Steele is not entitled to relief in any event, I will decide
the case on that basis rather than on the untimeliness of the
One - Concurrent Sentences under U.S.S.G.
filed his §2255 pro se, raising two related
grounds for relief. In Ground One, Steele argues that his
attorney rendered ineffective assistance of counsel when he
failed to advocate for a federal sentence that would run
concurrent with his state robbery sentence, applying
§5G1.3(b) of the 2005 U.S. Sentencing Guidelines in
effect at the time of his sentencing in December 2005.
Section 5G1.3(b) then provided that where a prison term
resulted from another offense that is “relevant
conduct” to the instant offense of conviction
and was ”the basis for an increase in the
offense level for the instant offense under Chapter Two
(Offense Conduct) or Chapter Three (Adjustments)” of
the Guidelines, then the court should take steps to run the
two related sentences concurrently.
One must be denied because Steele signed a plea agreement
containing a waiver of his right to bring this kind of claim.
A voluntary and knowing waiver of the right to appeal or
bring post-conviction challenges to a conviction or sentence
is valid and must be enforced. United States v.
Malone, 815 F.3d 367, 370 (7th Cir. 2016);
United States v. Lacy, 813 F.3d 654, 656
(7th Cir. 2016). Within his plea agreement, Steele
expressly waive [his] right to appeal or to contest [his]
conviction and [his] sentence imposed or the manner in which
[his] conviction or [his] sentence was determined or imposed,
to any Court on any ground, including any claim of
ineffective assistance of counsel unless the claimed
ineffective assistance of counsel relates directly to this
waiver or its negotiation....
[DE 11 at 4.] Thus, Steele waived his right to bring this
sort of ineffective assistance of counsel claim, which does
not relate directly to the appeal waiver itself.
strains to associate the concurrent sentences issue with the
negotiation of the plea waiver, but the effort is entirely
unsuccessful. [DE 43 at 2-3.] On its face, Steele's
argument about concurrent sentences has nothing to do with
waiving his right to appeal and to bring post-conviction
motions. Furthermore, to the extent Steele claims that in the
negotiation of the plea and the appeal waiver specifically,
his counsel was to have addressed concurrent sentences, such
an assertion is belied and contradicted by Steele's
responses at the change of plea hearing.
plea agreement contains no provisions concerning concurrent
federal and state sentences. Yet, answering me under oath,
Steele stated that he was “fully satisfied with the
counsel, representation, and advice given to [him] in this
case by Mr. Martin.” [DE 39 at 7.] He also acknowledged
that his willingness to plead guilty was the result of
discussions memorialized in the plea agreement.
[Id.] Steele agreed that his counsel had reviewed
the agreement with him in detail and answered any questions
Steele had about the contents, terms and ramifications of the
plea agreement. [Id. at 8-9.] He further represented
to me that the plea agreement contained the entirety of his
understanding with the government, and that no one had made
any “other or different promise or assurance...of any
kind in an effort to induce“ Steele's plea of
guilty. [Id. at 17.] In light of these many
representations made to me under oath, Steele cannot credibly
claim that he negotiated the appeal waiver in reliance upon
any understanding or expectation about receiving a federal
sentence to run concurrent with his state sentence.
waiver was reviewed at his change of plea hearing, and Steele
acknowledged that he understood it and agreed to it knowingly
and voluntarily. [DE 39 at 14-15.] Steele was fully advised
that the Sentencing Guidelines were no longer mandatory.
[Id. at 21.] Finally, Steele denied that anyone,
including his own attorney, had “done anything or made
any prediction or promise to [him] other than what's
contained in the plea agreement as to precisely what [his]
sentence [would] be.” [Id. at 22.] The waiver
is valid and enforceable, and Steele waived his right to
bring this ineffective assistance claim.
claim has no merit anyway. This is because Steele was not
entitled to concurrent sentencing under then-applicable
§5G1.3(b). Steele cites two cases in support of his
argument that he should have benefitted at sentencing from
§5G1.3(b) - United States v. Ross, 219 F.3d
592, 594 (7th Cir. 2000), and Kiefer v. United
States, 20 F.3d 874, 876-77 (7th Cir. 1994).
Both of these cases are distinguishable in several ways, the
most obviously fatal being that they pre-date the 2003 change
to §5G1.3(b)'s language that was applicable to
to the 2003 amendment, the concurrent sentencing provision
applied where the other term of imprisonment was for an
offense that had “been fully taken into account in the
determination of the offense level for the instant
offense.” U.S.S.G. §5G1.3(b) (2002). By the time
of Steele's sentencing, the standard was more specific
and stringent, and his case did not meet its requirements.
Steele's federal sentence did not qualify for concurrent
treatment under §5G1.3(b) because his offense level was
not increased “under Chapter Two (Offense Conduct) or
Chapter Three (Adjustments)” of the Guidelines.
Id. Rather, as an Armed Career Criminal,
Steele's offense level was determined by applying the
career offender provisions of Chapter Four. Neither Chapter
Two nor Chapter Three of the Guidelines factored into his
offense level. As a result, Steele's ultimate offense
level was calculated on the basis of the provisions of the
career offender guidelines of Chapter Four, not Chapters Two
or Three. [PSR, p.8.] And this means one of the two
requirements for concurrent sentencing under the
then-existing version of §5G1.3(b) was not met.
the appeal waiver knocks out Steele's first claim. But
even if I were to consider it on the merits, he still cannot