Kramer v. United States, No. 14-3049 (7th Cir. 2015)
Annotate this CaseIn 1988, Kramer was convicted of conspiring to distribute marijuana, 21 U.S.C. 846, and engaging in a Continuing Criminal Enterprise (CCE), 21 U.S.C. 848(b). Based on a motion filed under 28 U.S.C. 2255, Kramer’s section 846 conviction was vacated in 1998. His section 848 convictionwas affirmed. The Seventh Circuit acknowledged that a section 846 charge could not be counted as one of the section 848 “continuing series” offenses, but held that any error in allowing the jury to consider the section 846 count was harmless, because Kramer had been charged with many additional drug offenses. In 2014, Kramer filed another motion under section 2255, challenging his CCE conviction. The district court dismissed Kramer’s petition, concluding that it lacked subject matter jurisdiction over Kramer’s claim. It characterized Kramer’s motion as successive and barred by section 2255’s prohibition of subsequent petitions. The Seventh Circuit affirmed. The Supreme Court’s 1999 holding in Richardson v. United States invalidated the very jury instruction that was employed in Kramer’s case. If Kramer were tried today, the jury would be required to unanimously agree on the three predicate felonies used to make up the “continuing series” of CCE violations, but the district court properly characterized the petition as successive.
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