Bonk v. United States

• Decision Date: 11 February 2022
• Docket Number: 17-cr-10061-001-JES
• Parties: WADE BONK, Petitioner-Defendant, v. UNITED STATES, Respondent-Plaintiff.
• Court: U.S. District Court — Central District of Illinois

WADE BONK, Petitioner-Defendant,
v.
UNITED STATES, Respondent-Plaintiff.

No. 17-cr-10061-001-JES

United States District Court, C.D. Illinois, Peoria Division

February 11, 2022

ORDER AND OPINION

James E. Shadid, United States District Judge.

Before the Court is Petitioner-Defendant Wade Bonk's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (d/e 173). Mr. Bonk argues that, in light of United States v. Carnell, 972 F.3d 932 (7th Cir. 2020), he was erroneously found responsible for ice methamphetamine as opposed to methamphetamine mixture based statements from drug users, dealers, and/ or law enforcement. Mr. Bonk argues that both his trial and appellate counsel were ineffective for failing to raise this argument, and also should have challenged the indictment for failing to allege ice methamphetamine was involved. As explained below, the Court finds that Mr. Bonk did not receive ineffective assistance of counsel despite the later holding in Carnell that, if applied, may have positively impacted his sentencing guidelines range. Accordingly, the Court DENIES Mr. Bonk's § 2255 Motion (d/e 173) and DECLINES to issue a certificate of appealability.

I. BACKGROUND

Mr. Bonk, along with Darcy Kampas and Timothy Wood, was part of a conspiracy to distribute a substantial amount of methamphetamine in the central Illinois area. Mr. Bonk personally consumed some of the 1.5 kilograms of ice methamphetamine for which he was held

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responsible, but also sold the methamphetamine to distributers, including his co-defendant Wood. See PSR ¶¶ 4-20; 103 (d/e 127). The conspiracy ended on September 15, 2017, when Kampas was pulled over for speeding and methamphetamine was subsequently found in her car. In December 2017, Mr. Bonk, along with Kampas and Wood, were charged by superseding indictment with conspiracy to distribute and possess with intent to distribute at least 50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). See Superseding Indictment (d/e 35).

Mr. Bonk pled guilty in July 2018, without a written plea agreement. See July 6, 2018 Minute Entry. At the change of plea hearing, Mr. Bonk affirmed that he was satisfied with his trial counsel's (Mr. Sharbel Rantisi's) representation, that no one had made him any promises or assurances to get him to plead guilty, and no one had forced or threatened him to pled guilty. Plea Tr. at 13 (d/e 153). Prior to pleading guilty, the Government recited the factual basis for the plea, including the inner workings of conspiracy, the routine trips Mr. Bonk would take to purchase methamphetamine, and the recovery of Mr. Bonk's purported drug ledger. The Government also stated that they would provide evidence that “the methamphetamine in this case [is] actual or ice methamphetamine with that 80 percent or higher purity, not substance and mixture” based on D.E.A. laboratory analysis reports and several witnesses. Id. at 17-21. Mr. Bonk's counsel explained that his advisory sentencing guidelines range could vary greatly based on the findings of probation and produce a base offense level between 31 and 42 without considering the career offender status and his criminal history would be category VI. Id. at 22. With that range, Mr. Bonk's counsel estimated that his advisory sentencing guidelines range would be anywhere between 188 months to life imprisonment. Id. at 23. The Court advised Mr. Bonk that the estimate was only an estimate, the guidelines were only advisory, and that Mr.

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Bonk could be sentenced anywhere within the statutory range. Mr. Bonk then pled guilty and the Court found that the guilty plea was voluntary and knowing. Id. at 25.

After resolving objections in earlier versions, the United State Probation Office prepared a third revised Presentence Investigation Report (PSR) prior to the sentencing hearing. See PSR (d/e 127). This final report found Mr. Bonk responsible for 1540.15 grams of ice methamphetamine. To qualify as “ice” under the sentencing guidelines, the methamphetamine must be at least 80 percent pure. The report indicated that 25.3 grams had a purity level of 98 percent, and 83.2 grams had a purity level of 84 percent based on laboratory testing. See PSR ¶¶ 18-19. However, the remaining drug quantities that were attributed to Mr. Bonk did not specify in detail why the drug was presumed to be ice methamphetamine as opposed to methamphetamine mixture. See PSR ¶ 8 (finding 453.6 grams of ice methamphetamine attributable to Mr. Bonk apparently based on statements from co-conspirators but noting that the initial drugs supplied were “not of good quality”); PSR ¶ 10 (finding 805.45 grams of ice methamphetamine attributable to Mr. Bonk based on statements of coconspirators without any indication of purity listed in the report); PSR ¶ 15 (finding 170.1 grams of ice methamphetamine attributable to Mr. Bonk based on statements of coconspirators without any indication of purity listed in the report). Due to the drug quantity finding and the finding that the methamphetamine was ice, Mr. Bonk's base offense level was calculated as 36. Along with a two-point enhancement for his role in the offense, his adjusted base offense level was 38. The PSR also found that Mr. Bonk was a career offender under USSG §4B1.1, but because the career offender base offense level was lower (37), the higher adjusted offense level applied. After a three-point reduction for acceptance of responsibility, his total offense level was 35. See PSR ¶ 26-35. Combined with his criminal history score of VI (which would have been his score with or

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without the career offender designation due to his 34 criminal history points stemming from 24 separate adult convictions), his sentencing guidelines range was 292 to 365 months' imprisonment. See PSR ¶120.

Had Mr. Bonk's drug quantity been calculated as methamphetamine mixture as opposed to ice methamphetamine, his base offense level would only have been lowered to 37 because of his career offender designation. See PSR ¶ 32. After a three-point reduction for acceptance of responsibility, his total offense level would have been 34. Combined with his criminal history score of VI, his sentencing guidelines range would have been 262 to 327.

The third revised PSR referenced Mr. Bonk's objections to the enhancement for Mr. Bonk's role in the offense, to the number of trips he made with one of his coconspirators and the corresponding drug quantity for which he was found responsible, as well as an objection related to a potential firearms enhancement that had already been removed in this third revision. By sentencing, Mr. Bonk's counsel indicated that all objections had been resolved and requested that the objections be stricken from the final PSR so that no mention of a firearm remained in the PSR that might hinder Mr. Bonk's ability to participate and benefit from the Residential Drug Abuse Program (RDAP) while in prison. Sent. Tr. at 7-8 (d/e 156). The Court granted the defense's request to strike the objections from a final PSR. Id; Altered Revised PSR (d/e 133).

Mr. Bonk's sentencing hearing was held on May 19, 2019. Trial counsel presented expert testimony of Dr. Kirk Witherspoon, a psychologist who had prepared a mitigation report. Mr. Bonk's brother in mitigation. See Sent. Tr. 15-57 (d/e 156). Trial counsel argued that the disparity in sentencing guidelines ranges between methamphetamine mixture and actual (ice) methamphetamine was not justified. Id. at 98. Counsel also argued that the career offender status was not empirically justified, and highlighted the support of Mr. Bonk's family. Id. at 104.

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Trial counsel asked the Court to sentence Mr. Bonk using a sentencing guidelines range of 188 to 235 months, which would have been his sentencing range had the career offender guideline not applied and had the drugs been found to be methamphetamine mixture. Id. at 77-78. The Government highlighted Mr. Bonk's lengthy criminal history and asked the Court to impose an above-guidelines sentence of 365 months' imprisonment. Id. at 88-90.

The Court then sentenced Mr. Bonk to a below-guidelines sentence of 262 months' imprisonment to be served concurrently with lengthy state court prison sentences. Id. at 117-119; Judgment (d/e 134). The Court explained that while the conspiracy did not last long, it “moved a lot of drugs in the process.” Id. at 116. Further, the Court noted Mr. Bonk's lengthy and violent criminal history, which did not “give [his attorney] much to work with” in asking for a lower sentence. Id.

Mr. Bonk appealed and was represented by Steven Jesser on appeal. Shortly after filing the notice of appeal, appellate counsel filed a motion for release of all sealed documents on the court record. See d/e 162. While the motion was granted in part, the Court denied counsel's request for access to the sentencing recommendation regarding Bonk. See d/e 163. On appeal, Mr. Bonk argued that the Court erred in denying his motion to obtain all unsealed documents and that the Court abused its discretion in not granting a further downward departure from the recommended sentencing range. The Seventh Circuit affirmed the judgment on July 24, 2020. United States v. Bonk, 967 F.3d 643, 651 (7th Cir. 2020). The Seventh Circuit concluded that there was no merit to Mr. Bonk's complaint about the reasonableness of his sentence and that the district court had adequately justified its reasons for imposing the below-guidelines sentence (even though it was still above what Mr. Bonk had requested). Id.

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Mr. Bonk then filed this Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (d/e 173) on July 16, 2021. Mr. Bonk alleges that counsel was ineffective for failing to challenge the indictment based on the indictment's failure to allege drug purity (Ground One). Mr. Bonk also argues that trial counsel was ineffective for failing to object to...