United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. UNITED STATES DISTRICT COURT JUDGE.
Stanton asks that the court vacate or correct his sentence
after the parties discovered a factual error in his
pre-sentence report that resulted in an incorrect calculation
of his guideline sentence range. The government doesn’t
oppose Mr. Stanton’s motion and the court grants it.
Stanton pleaded guilty to one count of possessing with intent
to distribute cocaine. 21 U.S.C. § 841(a)(1). The
pre-sentence investigation report explained that law
enforcement seized 757.47 kilograms of marijuana from the
residence from which Mr. Stanton sold drugs. This amount of
marijuana moved Mr. Stanton to a base offense level of 28.
U.S.S.G. § 2D1.1(c)(6). After a two-level increase for
possession of firearms, § 2D1.1(b)(1), and a three-level
of reduction for acceptance of responsibility, § 3E1.1,
Mr. Stanton’s offense level was 27. With his criminal
history, the Guidelines recommended a sentence between 63 and
78 months imprisonment. Both parties recommended a sentence
of 60 months and the court sentenced Mr. Stanton to 60 months
followed by three years supervised release.
Stanton’s then-girlfriend and co-defendant was
sentenced for the same crime in a separate proceeding. In
preparing for that sentencing, the government realized that
there had been a mistake in Mr. Stanton’s pre-sentence
investigation report. The amount of marijuana seized was
actually 190 kilograms, not 757.47 kilograms. If corrected in
time for Mr. Stanton’s sentencing, his base offense
level would have been four levels lower. By the time the
error was discovered, the deadline for Mr. Stanton to appeal
government then moved to correct Mr. Stanton’s sentence
pursuant to Rule 35. The court denied its motion because Rule
35 allows the court to correct a sentence that resulted from
clear error only within 14 days of sentencing, which had
already elapsed. Fed. R. Crim. P. 35(a). Rule 36 also
didn’t provide Mr. Stanton with a remedy, because his
sentence was based on a clerical error contained in the PSR,
not the sentence itself. The only way for Mr. Stanton to have
his sentence corrected would be through collateral attack.
Mr. Stanton filed a motion to vacate or correct his sentence
pursuant to 28 U.S.C. § 2255.
convicted of a federal crime can challenge his sentence on
grounds that the sentence violates the Constitution or laws
of the United States, was imposed without jurisdiction,
exceeds the statutory maximum, or is otherwise subject to
collateral attack. 28 U.S.C. § 2255(a). An evidentiary
hearing isn’t required if “the motion and files
and records of the case conclusively show that the petitioner
is entitled to no relief.” 28 U.S.C. § 2255(b).
After reviewing Mr. Stanton’s petition and the record
of this case, the court concludes that the factual and legal
issues raised can be resolved on the record in Mr.
Stanton’s favor, so a hearing is unnecessary. See
Menzer v. United States, 200 F.3d 1000, 1006 (7th Cir.
issues not argued and decided on direct appeal can’t be
raised in a § 2255 petition unless the petitioner can
show good cause and actual prejudice for the procedural
default. United States v. Frady, 456 U.S. 152, 167
(1982); Galbraith v. United States, 313 F.3d 1001,
1006 (7th Cir. 2002). But the government supports Mr.
Stanton’s petition and doesn’t raise this
defense, so it’s waived. United States v.
Rezin, 322 F.3d 443, 446 (7th Cir. 2003).
Stanton’s § 2255 petition can move forward based
on the discovery of a fact counter to that on which the court
relied in sentencing him: the amount of drugs seized. 28
U.S.C. § 2255(f)(4). Generally, a fact-based challenge
to a sentence requires that it be filed within a year of when
the facts “supporting the claim . . . presented could
have been discovered through the exercise of due
diligence.” Id. Limitations periods are
affirmative defenses. To the extent this or any other
limitations period could apply to Mr. Stanton’s claim,
the government waived them when it decided to support Mr.
Stanton’s motion. See Day v. McDonough, 547
U.S. 198 (2006); Grigsby v. Cotton, 456 F.3d 727,
731 (7th Cir. 2006).
every error is corrigible in a postconviction proceeding,
even if the error was not harmless.” Hawkins v.
United States, 706 F.3d 820, 823 (7th Cir. 2013). For
this reason, mistakes in guideline interpretation are not
typically correctable on collateral review. Id. An
example is if “the probation service in recommending a
sentence to a district judge makes a mistake in applying the
(advisory) guideline that the judge doesn’t
catch.” Id. But this isn’t an example of
the probation service feeding an incorrect guideline
to the judge based on facts that are correct. It’s an
example of the probation service inadvertently feeding an
incorrect fact to counsel and the judge, which
resulted in an improper guideline. The court sentenced Mr.
Stanton based on misinformation of how much marijuana had
been seized, not because the probation service or lawyers
misconstrued the guideline that would have applied had that
quantity been correct the first time. The situation is
analogous to a guideline enhancement imposed based on the
“fact” of a prior conviction that is vacated
after final judgment. See Johnson v. United States,
544 U.S. 295 (2005). These errors can and should be corrected
through § 2255.
Stanton argued this motion without counsel and so the court
construes it liberally. See Ray v. Clements, 700
F.3d 993, 1002 (7th Cir. 2012). Even though Mr. Stanton
argued his case as one of miscarriage of justice or,
alternatively, ineffective assistance of counsel, the
discovery of a fact provides a clearer avenue for relief. The
court will take that route instead.
on the ...