Gaylord v. United States

• Decision Date: 12 July 2016
• Docket Number: No. 15-1297,15-1297
• Citation: 829 F.3d 500
• Parties: Logan M. Gaylord, Petitioner–Appellant, v. United States of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

829 F.3d 500

Logan M. Gaylord, Petitioner–Appellant

v.United States of America, Respondent–Appellee.

No. 15-1297

United States Court of Appeals, Seventh Circuit.

Argued June 1, 2016

Decided July 12, 2016

Alan Michael Freedman, Attorney, Midwest Center For Justice, Ltd., Evanston, IL, for Petitioner–Appellant.

Jason M. Bohm, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, for Respondent–Appellee.

Before Wood, Chief Judge, and Baue r and Flau m, Circuit Judges.

Flaum

, Circuit Judge.

Logan Gaylord pled guilty to conspiracy to distribute and to distribution of oxycodone. Ryan Evins ingested the oxycodone pills distributed by Gaylord, as well as cocaine from another source, and died. Gaylord was sentenced to 240 months imprisonment, the mandatory minimum sentence when death results from the distribution of a controlled substance under 21 U.S.C. § 841(b)(1)(C)

. Gaylord later brought a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, arguing that as a result of ineffective assistance of counsel, the “death results” enhancement of § 841(b)(1)(C) was inappropriately applied to his sentence. Specifically, Gaylord contended that the oxycodone he distributed was not shown to be the but-for cause of Evins's death, and thus counsel was ineffective for failing to object to the sentencing enhancement incorporated in the plea agreement. The district court dismissed Gaylord's § 2255 motion. For the reasons that follow, we vacate the district court's dismissal of Gaylord's § 2255 motion and remand to the district court for an evidentiary hearing on Gaylord's claim of ineffective assistance of counsel.

I. Background

On August 11, 2011, Gaylord pled guilty to conspiracy to distribute oxycodone and to the distribution of oxycodone in violation of 21 U.S.C. § 841(a)(1)

.¹ Gaylord admitted to distributing twelve oxycodone pills to Kelsey Demaught, who gave seven of those pills to Evins. Evins ingested the pills, as well as cocaine that he obtained from another source, and was found dead the following day. The coroner's postmortem report and the forensic pathology report both stated that the cause of Evins's death was “oxycodone and cocaine intoxication.” The forensic pathology report also stated that “[t]he oxycodone concentration is consistent with those that have resulted in fatalities. The cocaine demonstrates acute use and may result in a fatality.” Gaylord contends that his counsel never showed him these reports.

The presentence investigation report (“PSR”) mischaracterized the postmortem and forensic pathology reports, stating that “[t]he autopsy showed that Evins had a lethal amount of oxycodone and a large amount of cocaine in his system.” Similarly, the factual basis in the plea agreement stated that the oxycodone caused Evins's death. At Gaylord's plea hearing, the prosecutor recited this statement from the plea agreement, and the district court asked Gaylord if the facts were correct. Gaylord responded affirmatively.

As part of his guilty plea, Gaylord waived his rights to appeal and to collaterally attack his conviction and sentence. He confirmed at his plea hearing that he was voluntarily waiving these rights.

Section 841(b)(1)(C)

sets forth a mandatory minimum sentence of 240 months imprisonment for conspiracy to distribute oxycodone and for the distribution of oxycodone “if death or serious bodily injury results from the use of such substance[.]” Without this mandatory minimum, Gaylord's guidelines range would have been 210 to 262 months based on an offense level of 37 and a criminal history category of I.² At sentencing, the government recommended the mandatory minimum sentence, and Gaylord's attorney agreed that 240 months imprisonment was the minimum sentence the court could impose. The district court sentenced Gaylord to 240 months imprisonment on December 9, 2011. Gaylord did not pursue a direct appeal.

On January 27, 2014, approximately two years after Gaylord was sentenced, the U.S. Supreme Court held in Burrage v. United States

that but-for causation must be shown for the “death results” enhancement of § 841(b)(1)(C) to apply. ––– U.S. ––––, 134 S.Ct. 881, 892, 187 L.Ed.2d 715 (2014). This but-for causation standard was already the law in our Circuit at the time of Gaylord's sentencing. United States v. Hatfield , 591 F.3d 945, 948 (7th Cir. 2010).

On October 10, 2014, Gaylord filed a pro se motion to vacate his sentence pursuant to § 2255

, arguing that his increased sentence violated the “new rule” announced in Burrage. Gaylord contended that the oxycodone he distributed was not determined to be the but-for cause of death, as required by Burrage for the “death results” enhancement to apply, and that his counsel provided ineffective assistance by not using the postmortem and forensic pathology reports to challenge the application of the enhancement.

On February 2, 2015, the district court dismissed Gaylord's § 2255

motion. The court gave several reasons for its ruling. First, it explained that Gaylord's Burrage claim is a non-constitutional claim that could have been raised on direct appeal but was not, and thus the claim had been waived and was not cognizable under § 2255. Next, the court found that Gaylord's motion was untimely. Finally, the district court observed that in his plea agreement, Gaylord had waived his right to bring a collateral attack. According to the district court, Gaylord failed to argue that the plea agreement was the result of ineffective assistance of counsel, so he was bound by the waiver. The district court also denied Gaylord's petition for a certificate of appealability.

On June 8, 2015, we granted Gaylord a certificate of appealability, concluding that Gaylord “made a substantial showing that his conviction and sentence violate the rule announced in Burrage

.” We appointed counsel to represent Gaylord on appeal and asked the parties to address the four antecedent procedural questions identified by the district court: (1) whether Gaylord can obtain relief under § 2255 for a non-constitutional claim; (2) whether Burrage applies retroactively; (3) whether the claim is timely; and (4) whether Gaylord waived his right to bring this claim.

II. Discussion

Gaylord argues on appeal that the district court erred in dismissing his § 2255

motion. He challenges the application of the “death results” enhancement of § 841(b)(1)(C), arguing that the application of this sentencing enhancement was the result of ineffective assistance of counsel.

A. Procedural Issues

Before addressing the merits of Gaylord's § 2255

motion, we note that the government has conceded three of the four antecedent procedural issues. First, the government concedes that a Burrage claim is cognizable under § 2255 because § 2255(a) provides relief for sentences “imposed in violation of the Constitution or laws of the United States[.]” If a defendant was improperly sentenced under § 841(b)(1)(C) as interpreted by Burrage, his sentence would be in violation of the laws of the United States, and thus a Burrage claim is cognizable under § 2255. See

Ragland v. United States 784 F.3d 1213, 1214 (8th Cir. 2015) (per curiam) (holding that a Burrage claim is cognizable under § 2255 ). Second, the government acknowledges that Burrage narrowed the scope of the “death results” enhancement of § 841(b)(1)(C) and thus applies retroactively. See

Schriro v. Summerlin , 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (“New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms....”). Third, the government concedes that Gaylord timely filed his claim within one year after Burrage. See § 2255(f)(3) (setting forth a one-year period of limitation for § 2255 motions).

However, the government contends that Gaylord's motion is barred by two procedural hurdles. First, the government argues that the district court correctly held that Gaylord waived his claim through the collateral attack waiver in his plea agreement and by not raising a claim of ineffective assistance of counsel in his § 2255

motion. We review de novo the enforceability of a plea agreement's waiver of direct or collateral review. Hurlow v. United States , 726 F.3d 958, 964 (7th Cir. 2013). Such waivers are generally enforceable but cannot be invoked against a claim that counsel was ineffective in the negotiation of the plea agreement. Id. ; see also

Jones v. United States , 167 F.3d 1142, 1145 (7th Cir. 1999) (“Justice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself—the very product of the alleged ineffectiveness.”).

We disagree with the district court's conclusion that Gaylord failed to raise the issue of ineffective assistance of counsel in his § 2255

motion. Though he did not cite Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or an analogous case, Gaylord did argue that his guilty plea was “uninformed, therefore involuntary” because his counsel insufficiently investigated his case. He claimed that his counsel did not provide him with the postmortem and forensic pathology reports stating that the cause of death was oxycodone and cocaine intoxication. Instead, he only saw the PSR and the plea agreement, which indicated that oxycodone was the cause of death. Thus, Gaylord was mistakenly led to believe that the oxycodone he distributed was the but-for cause of Evins's death. See

Galbraith v. United States , 313 F.3d 1001, 1006 (7th Cir. 2002) (“Due process requires that a guilty plea, to be valid, be made voluntarily, intelligently and knowingly.”). This is enough to raise a claim of ineffective assistance of counsel, especially given the lenient standard under which we review pro se filings. Warren v. Baenen , 712 F.3d 1090, 1099–1100 (7th Cir. 2013) (explaining that we construe pro se petitions liberally)....