United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge.
Eric Edward Garvey has filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct the sentence that he received in United States v. Garvey, Case No. 10-cr-133. The respondent filed a brief in opposition. After considering all of the pleadings, the record and the court’s own recollection of the underlying proceedings, the motion must be denied for reasons set forth below.
A grand jury returned a four-count indictment charging Garvey with knowingly and intentionally distributing a mixture or substance containing methamphetamine, a Schedule II controlled substance on April 21, April 30, May 8 and May 27, 2008, all in violation of 21 U.S.C. § 841(a)(1). After a trial in early February of 2011, a jury found Garvey guilty as to all four counts.
To establish that the substance was in fact methamphetamine, the government notified Garvey’s trial counsel that it planned to offer the expert testimony of John Nied, a controlled substance analyst and technical unit leader at the Wisconsin State Crime Laboratory in Wausau, Wisconsin. Nied did not personally analyze the substances. Rather, Andrew Schleis, who no longer worked for the department, conducted the analysis.
As Nied testified at trial, he analyzed the test data and notes Schleis created consistent with lab protocol, which included charts generated by instruments in the lab. After reviewing the data, Nied concluded that the substances were methamphetamine. Rather than objecting to the admission of Nied’s expert testimony, Garvey’s counsel cross-examined him extensively about the charts that he relied upon in reaching his conclusions. (Dkt. #92, pp. 150-57.) In addition to Nied’s expert testimony, the government submitted other evidence that the substances were methamphetamine, including taped conversations of Garvey commenting on the quality, price and amount of methamphetamine sold during each controlled buy. (See Ex. List, dkt. #101.)
Following the jury’s guilty verdict, Garvey asked for and received new counsel for sentencing. (Dkt. #10.) A presentence investigation report (“PSR”) was filed on April 15, 2011, that calculated a guideline range of 46 to 57 months based on an offense level of 16 and a Criminal History Category VI. (Dkt. # 65, at 20.)
Garvey’s sentencing counsel filed objections to seventeen paragraphs of the PSR. Three of those objections -- to paragraphs 39, 41 and 42 -- relate to the release date for a prior crime that added points to his criminal history calculation and Garvey seeks to raise them again here. Paragraph 39 described a conviction on December 27, 1990, for stealing a car and damaging a squad car in the process of evading arrest. Garvey was paroled on that offense on March 1, 1996, which he completed on October 22, 1999. In his original objection, Garvey’s sentencing counsel asserted that the actual parole date was June 12, 1994, although the same counsel acknowledged that the difference “does not affect the three criminal history points applied to him . . . because 6/12/94 is approximately 14 years from the date of the offense for which he is being sentence[d] and therefore within the 15 year window for sentences of this type to be considered.” (Dkt. #66, at 2.)
Paragraph 41 described a Minnesota conviction on March 13, 1992, for motor vehicle theft, on which Garvey was released from custody on February 17, 1994. (PSR Addendum, dkt. #68, p. 4.) At sentencing, Garvey objected to the release date, believing that his September 25, 1991, arrest date -- not the date of his conviction -- should have been the starting point to determine the relevance of this conviction to his criminal history calculation.
Finally, paragraph 42 described a Wisconsin conviction for escape. The PSR stated that he was released from custody in that case on March 1, 1996. The objection stated, in part, that Garvey’s mandatory release day was 16 months from his arrest on September 12, 1991, which would have been January 12, 1993. The Addendum to the PSR restated that the Wisconsin Department of Corrections computer records provided a release date of March 1, 1996, but that the actual prison file was destroyed and there was no further available documentation. (Dkt. #68, at 4.)
Before arriving at a sentence, this court considered the PSR, objections, the Addendum to the PSR and the parties’ arguments. The court agreed with Garvey that the applicable guidelines range was 41 to 51 months and sentenced him to concurrent terms on all counts of 42 months. (Dkts. #79, #89.) In its statement of reasons, this court specifically addressed the criminal history items, concluding that only the objection to Paragraph 42 of the PSR had merit. (Dkt. #78, at 4.) This ruling was in recognition of the fact that “because the original conviction record could not be located, ” leaving “no reliable information” about the actual length of the sentence for escape and held, therefore, that the conviction should not be included in Garvey’s criminal history score. (Id.) The court, therefore, reduced his Criminal History score from a Category VI to a Category V, which contributed in part to a sentence of 42 months, near the low end of the revised 41 to 51 month guideline calculation.
On direct appeal, Garvey’s appellate counsel argued that the admission of Nied’s testimony amounted to plain error, but the Court of Appeals for the Seventh Circuit disagreed. See Garvey v. United States, 688 F.3d 881, 884-85 (7th Cir. 2012). In its ruling, the Seventh Circuit harkened back to its opinion in United States v. Turner, 591 F.3d 928. 931 (7th Cir. 2010), upon which the government relied. In Turner, the court held that the admission of testimony by an expert witness based in part on an analyst’s report to reach his opinion did not result in a Confrontation Clause violation, reasoning that the report itself was not introduced into evidence. Id. Following oral argument, however, the Seventh Circuit acknowledged that the Supreme Court vacated the Turner decision in Williams v. Illinois, U.S. ___, 132 S.Ct. 2221 (2012), holding that there was no Confrontation Clause violation where a forensic specialist testified about a DNA profile produced by an outside laboratory.
In reviewing the Williams decision, the Seventh Circuit noted that the Supreme Court did not clarify the Confrontation Clause issue at hand. Accordingly, the Seventh Circuit held that Nied’s expert testimony did not amount to plain error because the jury considered an “abundance of other evidence establishing both that Garvey sold methamphetamine during the four controlled buys and the quantity sold in each transaction.” Garvey, 688 F.3d at 885- 86. The ...