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Anderson v. United States

United States District Court, E.D. Wisconsin

June 22, 2017

PLAZE ANDERSON Petitioner-defendant,
v.
UNITED STATES OF AMERICA Respondent-plaintiff. Criminal No. 01-CR-193

          DECISION AND ORDER

          LYNN ADELMAN, District Judge

         Pursuant to 28 U.S.C. § 2255, petitioner Plaze Anderson moves to vacate his sentence on racketeering and firearm charges. He argues that the court erred in accepting his guilty plea to the firearm charge without an adequate factual basis and that the resulting sentence violated his Sixth Amendment right to trial by jury. For the reasons that follow, I deny the motion and dismiss this action.

         I. BACKGROUND

         In 2001, the government indicted petitioner and others on racketeering and drug distribution charges arising out of their involvement with the Gangster Disciples street gang. On November 25, 2002, pursuant to an agreement with the government, petitioner pleaded guilty to an information charging him in count one with conspiracy to commit racketeering, 18 U.S.C. § 1962(d), and in count two with use of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c). Count one charged that from 1/1/92 to the present petitioner and others associated with the Gangster Disciples conspired to commit racketeering activity including murder and kidnaping. Count two charged that on 1/21/95 petitioner used a .40 caliber handgun in relation to possession with intent to distribute cocaine base.

         The pre-sentence report (“PSR”) calculated petitioner's sentencing guideline range on the racketeering count under U.S.S.G. § 2E1.1(a) based on three predicate acts: two second degree murders, see U.S.S.G. § 2A1.2(a), and a kidnaping (with an attempted murder of the victim), see U.S.S.G. § 2A4.1(a), resulting in a combined adjusted level of 43. (PSR ¶¶ 33-53.) After adding enhancements for aggravated role in the offense, U.S.S.G. § 3B1.1(a), and obstruction of justice, U.S.S.G. § 3C1.1, and denying a reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, the PSR settled on a final offense level of 50 on the racketeering count. (PSR ¶¶ 55-72.) Coupled with petitioner's criminal history category of VI, level 50 produced an imprisonment range of life. (PSR ¶ 134.)

         On count two, the PSR noted that under U.S.S.G. § 2K2.4 the guideline for a violation of 18 U.S.C. § 924(c) is the 5-year minimum term required by the statute. (PSR ¶ 54.) The PSR noted that petitioner had not been charged with the underlying offense conduct (drug trafficking) on count two of the information (PSR ¶ 74), but in setting forth the facts supporting the § 924(c) charge the PSR described that underlying conduct. The PSR indicated that on 1/25/95 police responded to a 911 call from petitioner's girlfriend that he threatened her with a weapon. Officers arrested petitioner and a co-defendant several blocks away following a brief foot chase, during which petitioner handed the co-defendant the firearm and drugs. (PSR ¶ 22.) Officers recovered from the co-defendant 12 individually wrapped rocks of crack cocaine and a .40 caliber handgun. (PSR ¶ 23.)

         On December 13, 2002, I adopted the PSR's factual findings and guideline calculations, then sentenced petitioner to 240 months (the statutory maximum) on the racketeering count and 60 months consecutive (the mandatory minimum) on the § 924(c) count for a total of 300 months. Petitioner took no direct appeal.

         On April 17, 2017, petitioner filed the instant motion. On screening the motion under Rule 4, I noted that it plainly appeared to be untimely under 28 U.S.C. § 2255(f). I therefore issued an order that petitioner show cause why the motion should not be dismissed as untimely. On June 12, 2017, petitioner filed his response. I now dismiss the motion as untimely. In the alternative, I deny it on the merits.

         II. DISCUSSION

         A. Section 2255

         Section 2255 provides a basis for attacking a federal sentence on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Relief under § 2255 is available “only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79 (7thCir. 2013). Further, because a § 2255 motion is not a substitute for direct appeal, e.g., Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007), claims that could have been raised directly may be brought collaterally only if the petitioner can show cause and prejudice. McCoy v. United States, 815 F.3d 292, 295 (7th Cir.), cert. denied, 137 S.Ct. 260 (2016). Absent a showing of both cause and prejudice, procedural default will only be excused if the prisoner can demonstrate that he is actually innocent of the crimes of which he was convicted. Id.

         B. Timeliness

         Section 2255 actions have a one-year limitation period, ...


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