Jordan v. United States
| Decision Date | 28 October 2022 |
| Docket Number | 20-cv-935-pp |
| Parties | MARQUISE M. JORDAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
MARQUISE M. JORDAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
No. 20-cv-935-pp
United States District Court, E.D. Wisconsin
October 28, 2022
ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. §2255, DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY AND DISMISSING CASE WITH PREJUDICE
HON. PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE
On June 22, 2020, the petitioner filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. §2255, challenging his conviction in United States v. Marquise Jordan, Case No. 17-cr-86-pp (E.D. Wis.). Dkt. No. 1. The petitioner asserts that his sentence violates the United States Supreme Court's decision in United States v. Davis,U.S., 139 S.Ct. 2319 (2019). Id. at 2. The petitioner plainly is not entitled to relief, so the court will deny the §2255 motion and dismiss the case.
I. Background
A. Underlying Case
1. Indictment
On March 6, 2018, the grand jury returned an indictment against the petitioner. United States v. Marquise Jordan, Case No. 17-cr-86-pp (E.D. Wis.), Dkt. No. 33. Count One charged the petitioner with carjacking in violation of
18 U.S.C. §§2119(1) and (2). Id. at 1. Count Two charged him with knowingly using, carrying and brandishing a firearm during and in relation to the crime of violence charged in Count One, in violation of 18 U.S.C. §§924(c)(1)(A)(ii) and 2. Id. at 2. Count Three charged the petitioner with carjacking in violation of 18 U.S.C. §§2119(1) and (2). Id. at 3. Count Four charged him with knowingly using, carrying and brandishing a firearm during and in relation to the crime of violence charged in Count Three, in violation of 18 U.S.C. §§924(c)(1)(A)(ii) and 2. Id. at 4. Count Five charged the petitioner with carjacking in violation of 18 U.S.C. §§2119(1) and (2). Id. at 5. Count Six charged him with knowingly using, carrying and brandishing a firearm during and in relation to the crime of violence charged in Count Five in violation of 18 U.S.C. §§924(c)(1)(A)(ii) and 2. Id. at 6.
2. Plea agreement
On April 12, 2018, the petitioner (represented by Attorney Thomas Erickson) signed a plea agreement. Dkt. No. 40 at 13. The plea agreement was filed on April 19, 2018. The agreement stated that in addition to the indictment, a one-count information charged the petitioner with another count of carjacking in violation of 18 U.S.C. §§2119(1) and (2). Id. at ¶3; see also Dkt. No. 38. The agreement stated that the petitioner was pleading to Counts One, Two and Three of the indictment and to the one-count information. Id. at ¶5. It stated that the petitioner had read and fully understood the charges in both the indictment and the information, “the nature and elements of the crimes with which he ha[d] been charged” and that his attorney had fully explained
“the terms and conditions of the plea agreement.” Id. at ¶4. In the agreement, the petitioner acknowledged, understood and agreed that he was guilty of the offenses in Counts One, Two and Three of the indictment and in the information. Id. at ¶6. He admitted that facts attached to the plea agreement established his guilt beyond a reasonable doubt and were true and correct. Id. The agreement stated that the petitioner understood and agreed that the maximum term of imprisonment for the offenses in Counts One, Three and the information was fifteen years in prison, a $250,000 fine and five years of supervised release; he understood and agreed that Count Two carried a “[m]andatory minimum of seven years and up to life in prison” consecutive to any other sentence, a maximum of five years of supervised release and a $250,000 fine. Id. at ¶7. The petitioner acknowledged, understood and agreed that he had discussed “the relevant statutes as well as the applicable sentencing guidelines with his attorney.” Id. at ¶8.
The agreement also laid out the elements of the charges. Id. at ¶¶10-11. It said that the parties understood and agreed that in order to sustain the carjacking charges in Counts One and Three and the information, the government must prove beyond a reasonable doubt that (1) the petitioner “intentionally attempted to take or took a vehicle from a person,” (2) the petitioner “did so by means of force and violence, or by intimidation,” (3) “the motor vehicle had been transported, shipped or received in interstate or foreign commerce,” and (4) the petitioner “intended to cause death or serious bodily injury in order to complete the taking of the vehicle.” Id. at ¶ 10. The parties
confirmed that they understood and agreed that in order to sustain the charge of using, carrying and brandishing a firearm during a crime of violence in Count Two, the government must prove that (1) the petitioner committed the carjacking alleged in Count One and (2) the petitioner “knowingly used and brandished a firearm during that crime.” Id. at ¶11.
The petitioner acknowledged and agreed “that his attorney . . . discussed the applicable sentencing guidelines provisions with [the petitioner] to [the petitioner's] satisfaction.” Id. at ¶14. He acknowledged and understood “that the sentencing guidelines recommendations contained in this agreement [did] not create any right to be sentenced within any particular sentence range, and that the court [might] impose a reasonable sentence above or below the guidelines range.” Id. at ¶16. The parties acknowledged, understood and agreed that the sentencing court could “consider relevant conduct in calculating the sentencing guidelines range, even if the relevant conduct [was] not the subject of the offense to which [the petitioner] [was] pleading guilty.” Id. at ¶17. “The parties agree[d] to recommend to the sentencing court that the applicable base offense level for the offense charged in Counts One, Three and the information” was 20. Id. at ¶18. “The parties agree[d] to recommend to the sentencing court that a 2-level increase for carjacking” was applicable to Counts One, Three and the information. Id. at ¶19. They agreed that the government would recommend a 5-level increase for the offenses in Count Three and the information because they involved a brandished firearm. Id. at ¶20. The government agreed to recommend a 2-level decrease for the petitioner's
acceptance of responsibility, and an additional 2-level decrease for the timeliness of that acceptance. Id. at ¶22. The agreement reflected that “[t]he sentencing court [would] make its own determinations regarding any and all issues relating to the imposition of sentence and may impose any sentence authorized by law up to the maximum penalties” set forth in the agreement. Id. at ¶26. The petitioner acknowledged, understood and agreed that under the terms of the agreement, he could not “move to withdraw the guilty plea solely as a result of the sentence imposed by the court.” Id. at ¶27.
The plea agreement specified that if the petitioner violated any term of the agreement at any time, the agreement would “become null and void at the discretion of the government.” Id. at ¶41. If the agreement “[was] revoked or if [the petitioner's] conviction ultimately [was] overturned, then the government retain[ed] the right to reinstate any and all dismissed charges and to file any and all charges which were not filed because of [the] agreement.” Id. Finally, the petitioner acknowledged, understood and agreed that he would “plead guilty freely and voluntarily because he [was] in fact guilty,” and that “no threats, promises, representations, or other inducements ha[d] been made, nor agreements reached, other than those set forth in [the] agreement, to induce [the petitioner] to plead guilty.” Id. at ¶42.
3. Change-of-plea hearing
On May 21, 2018, the court held a change-of-plea hearing. Dkt. No. 41. The petitioner appeared in person with Attorney Erickson. Id. at 1. The court's minutes reflect that the court placed the petitioner under oath, reviewed the
plea agreement with him, questioned him, “recounted that Counts One and Three of the indictment, and the count in the information, each carried a maximum prison term of fifteen years, a maximum fine of $250,000, and a maximum of five years of supervised release,” recounted that “Count Two carried a mandatory minimum prison term of seven years and a maximum of life, to run consecutively to any other sentence” and mentioned that each charge carried a “mandatory special assessment of $100,” for a total assessment of $400. Id. “[T]he court found that [the petitioner] understood his trial rights, the penalties associated with the charge[s], the possible civil ramifications of a conviction, and the uncertainty of his ultimate sentence.” Id. “The court also found that [the petitioner] entered the plea knowingly and voluntarily, without threats or promises.” Id. at 2. The court accepted the petitioner's plea and found him guilty of the offenses charged in the indictment and information. Id.
4. Sentencing hearing
On September 27, 2018, the court conducted the sentencing hearing. Dkt. No. 46. The petitioner appeared in person with Attorney Erickson. Id. at 1. Attorney Erickson confirmed that he and the petitioner had reviewed the presentence investigation report, the petitioner's sentencing memorandum and letters in support of the petitioner. Id. The court explained that the sentencing guidelines in the presentence report were advisory, but that the law required the court to begin its sentencing analysis with those advisory guidelines and consider their application to the factors in 18 U.S.C. §3553. Id. After
determining the adjusted offense level (27) and calculating the defendant's criminal history category (II), the court determined that...
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