United States v. Stinson

          SENTENCING OPINION

          HOLLY A. BRADY JUDGE

         The Defendant, Camari Stinson, has pled guilty to unlawful possession of a firearm by a felon (18 U.S.C. § 922(g)(1)), distributing a controlled substance (21 U.S.C. § 841(a)(1)), and possession of a firearm in furtherance of the trafficking crime (18 U.S.C. § 924(c)). He is awaiting sentence. Several issues impacting the calculation of the Guidelines remain outstanding. This Sentencing Opinion resolves those issues.

         ACCEPTANCE OF RESPONSIBILITY

         Defendant entered a plea of guilty on December 4, 2017, the day before his trial was scheduled to begin. Over three months later, on March 29, 2018, the Court was prepared to conduct an evidentiary hearing on Defendant's objection to the PSR when Defendant notified the Court of his intent to withdraw his guilty plea. In his Verified Petition to Withdraw Guilty Pleas [ECF No. 109], Defendant asserted that his cousin's death plunged him into depression at a time when he was attempting to wean himself from prescribed anti-depressant medication. He further asserted that this caused “an inability in my mind to be properly prepared for trial in this case” and feeling “pressured to plead guilty . . . as my only remaining option.” (Verified Pet. 1.) Defendant maintained that he “did not commit these offenses, such that all required elements could be proven beyond a reasonable doubt.” (Id. at 2.)

         The Court took the motion under advisement and conducted an evidentiary hearing. The Government presented the testimony of Agent Wayne Lessner from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to address Defendant's claim that he was innocent of the charges to which he pled guilty. Defendant did not present evidence. Upon consideration of the evidence, and its review of the parties' written submissions and the transcript of the change of plea hearing, the Court denied Defendant's request to withdraw his pleas of guilty to Counts I, II, and III of the Indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), distributing a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

         The Government's objection is based on Defendant's attempt to withdraw his guilty pleas. The Government argues that Defendant's conduct is inconsistent with acceptance of responsibility and, therefore, he is not entitled to a two-level reduction under Guideline § 3E1.1.

         Ordinarily, a defendant who enters a plea of guilty receives a two-level reduction in his offense level for clearly demonstrating acceptance of responsibility for his offense under U.S.S.G. § 3E1.1(a). Application Note 1 states that an appropriate consideration in determining if a person clearly accepted responsibility includes truthfully admitting the conduct comprising the offenses of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). However, Note 3 further says that this may be outweighed by conduct of the defendant that is inconsistent with acceptance of responsibility. U.S.S.G. § 3E1.1 cmt. n.3; United States v. Sellers, 595 F.3d 791, 793 (7th Cir. 2010) (“Evidence pointing toward acceptance of responsibility may be outweighed by other incompatible acts or statements.”).

         Defendant bears the burden of proving that he is entitled to the reduction. United States v. Fuller, 15 F.3d 646, 650 (7th Cir. 1994). Entering a plea of guilty is not automatic grounds for applying the reduction, United States v. Dachman, 743 F.3d 254, 259 (7th Cir. 2014), and the Seventh Circuit has noted that, where a defendant has made belated or ill-fated attempts to withdraw his plea, “[l]ongstanding precedent permits district judges to withhold the adjustment for that reason alone, ” United States v. Collins, 796 F.3d 829, 836 (7th Cir. 2015) (citing as examples United States v. Price, 988 F.2d 712, 733 (7th Cir. 1993); United States v. Trussel, 961 F.2d 685, 691 (7th Cir. 1992); Fuller, 15 F.3d at 650-51).

         Here, when moving to withdraw his pleas, Defendant did not point to any deficiency in the Court's colloquy during the change of plea hearing. Neither did his submission convince the Court that the statements he made under oath when he entered his guilty pleas were false, or that he was unable to comprehend what he was doing when he entered those pleas. Despite the Court's identification of numerous questions that remained unanswered in Defendant's Verified Petition, and the opportunity to develop the record during an evidentiary hearing, Defendant did not attempt to answer any of those lingering questions. Rather, the circumstances suggested quite clearly that Defendant's denial of guilt, and claim of actual innocence, was a direct response to receiving a PSR that included relevant conduct that exposed him to a higher Guideline range. Specifically, Defendant was implicated in an attempted murder during the period of time that he was charged with unlawfully possessing a firearm. The Court has since sustained his objection. Defendant maintains that he is still entitled to the reduction for acceptance of responsibility. He correctly notes that the basis for a second motion to withdraw his guilty plea was directed at the application of the Guidelines as it related to the attempted murder, and that he admitted possessing a firearm as a convicted felon between December 29, 2014, to February 5, 2015. In the second motion he was only denying his involvement in the shooting incident of December 29, 2014, not that he was in possession of a firearm on the other three dates, times, and locations set forth in the PSR.

         The Court has agreed with Defendant with respect to the December 2014 shooting, at least for purposes of applying the Guidelines. Therefore, the motion to withdraw that was specifically directed at that conduct and its sentencing implications would not be a basis to conclude that he did not accept responsibility. However, his argument ignores the first Verified Petition to Withdraw Guilty Pleas. The Court concludes that Defendant has not clearly demonstrated that he accepted responsibility for his criminal conduct. In fact, because Defendant denied the essential factual elements of guilt, the Government was required to present proof of those elements at an evidentiary hearing. The Government offered the testimony of Agent Lessner, the undercover agent who was with a confidential informant and Defendant when Defendant procured cocaine for the informant and showed them the firearm. The Government also introduced exhibits to counter Defendant's claim that he was innocent.

         For these reasons, the Court sustains the Government's objection and finds that the PSR should be revised to eliminate the reduction for acceptance of responsibility under § 3E1.1(a).

         OFFENSE CONDUCT

         Defendant objects to any reference in the PSR to him being a “shooter” during the December 2014 shooting incident. (Objection, ECF No. 169.) He asserts that, based upon the Court's April 22, 2019, Order sustaining his objection to the offense calculation related to his role in an attempted murder, he should not be referred to as the shooter.

         The PSR was revised after the Court issued an Opinion and Order sustaining Defendant's objections to the Final Presentence Investigation Report. The Revised Report does not identify Defendant as the shooter. Rather, is sets forth background facts that give context to the offense conduct. For example, in Paragraph 5, it is noted that the ATF targeted Defendant for investigation after a confidential informant advised that Defendant was talking about his involvement in the December 2014 shooting. Although Defendant had further conversation with the CI about the shooting that are recounted in the PSR, the PSR also notes Defendant's position that he was only claiming ...