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United States v. Steele

United States District Court, N.D. Indiana, Hammond Division

November 4, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
CHARLES STEELE, Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON CHIEF JUDGE

         Charles 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.]

         Steele 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 motion.

         Ground One - Concurrent Sentences under U.S.S.G. §5G1.3(b)

         Steele 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.

         Ground 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 agreed to:

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.

         Steele 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.

         The 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.

         The 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.

         But the 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 Steele.

         Prior 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.

         In sum, the appeal waiver knocks out Steele's first claim. But even if I were to consider it on the merits, he still cannot ...


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