United States of America v. Myles, No. 1:2016cv09946 - Document 10 (N.D. Ill. 2017)

Court Description: MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 3/31/2017. Mailed notice. (mgh, )
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United States of America v. Myles Doc. 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Raymond Myles, Petitioner, v. United States, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. 16 CV 9946 Memorandum Opinion and Order Raymond conspiracy. Myles His pled plea guilty agreement to a charge specified of that racketeering the applicable Sentencing Guidelines range was 135-168 months, and it further provided that downward departure, shall include if a the government then term of “the moved sentence imprisonment at sentencing imposed in the by the custody for a Court of the Bureau of Prisons of 66 percent of the low end of the applicable guideline range.” Plea Agreement in 13 CR 772-13 (N.D. Ill.), DN 905 at 7, 9. Mr. Myles also agreed to waive his appellate and collateral rights, excluding his right to assert ineffective assistance of counsel, if the government moved for a downward departure. Id. at 13. The plea agreement provided that if I rejected the parties’ agreed term of incarceration, either party was free to withdraw from the agreement. Dockets.Justia.com At sentencing, departure, triggering the government the moved for parties’ agreement a to downward a term of eighty-nine months of incarceration (i.e., sixty-six percent of 135 months). Nevertheless, Mr. Myles’s attorney argued that he should receive credit against the agreed term for the twentythree months Mr. Myles spent in IDOC custody on a state conviction for possession of a firearm. See Def.’s Sent. Mem. in 13 CR 772-13 (DN 1248) at 10; Gov’t. Resp., Exh. 1, Sent. Tr. at 10:18-11:4. amounted Defense to a counsel request acknowledged that I reject that the his plea argument agreement, admitting that it was “a dangerous thing” because it meant that “all bets are off,” which is to say, that the government would then be entitled to seek a longer sentence. Id. at 12:15-24. I agreed that counsel after the dropped hearing position the from was dangerous, argument. counsel Id. and at from after which 12:24-13:5. Mr. Myles defense Ultimately, himself, I accepted the plea agreement, concluding that it was “a pretty fair agreement” that was “very good” for Mr. Myles. Id. at 17:67, 18:4. Mr. Myles has now filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that his trial counsel was ineffective: 1) for failing to appeal his sentence, and 2) for failing to raise Witte v. United States, 515 U.S. 389 (1995), in support of his request for a term of incarceration shorter than he agreed to in the plea agreement. There is no merit to either argument. First, while it is true that the plea agreement preserved ineffective assistance of counsel claims, the agreement’s broad waiver of Mr. Myles’s appellate rights—which was triggered by the government’s request for a downward departure—fatally undermines his claim that his counsel was per se ineffective for failing to file an appeal. Mr. Myles articulates no basis for concluding that he is not bound by the appellate waiver, nor does he suggest that the waiver is invalid or unenforceable. Accordingly, any appeal would have been frivolous, and his attorney was not ineffective for failing to pursue one. There is also no factual or legal support for Mr. Myles’s second argument. As explained above, his attorney did, in fact, argue that Mr. Myles should receive “credit” against the agreed eighty-nine month prison firearms conviction after observed I but that term then his for time sensibly effort to served abandoned modify on his the the state argument term would effectively repudiate the plea agreement, exposing Mr. Myles to the possibility of a much longer sentence. Nothing in Witte— which stands for the proposition that a defendant may, consistently with the Double Jeopardy Clause, be prosecuted for conduct that was previously used as a basis for a sentencing enhancement—suggests that his counsel should have acted otherwise. See 515 U.S. at 406 (because consideration of relevant conduct at sentencing does not constitute punishment for that conduct, later prosecution for the same conduct does not violate the Double Jeopardy Clause). At all events, even if Mr. Myles could somehow show that Witte would have strengthened his case for a downward adjustment from the parties’ agreed term, it is far from clear that reneging on the plea agreement would have benefitted Mr. Myles. Accordingly, Mr. Myles cannot show prejudice as required to prevail on an ineffective assistance of counsel claim. See Galbraith v. United States, 313 F.3d 1001, 1008 (7th Cir. 2002). For the foregoing reasons, the motion is denied. ENTER ORDER: Elaine E. Bucklo United States District Judge Dated: March 31, 2017