U.S. v. Willis

• Decision Date: 17 August 2011
• Docket Number: No. 09–15676.,09–15676.
• Citation: 23 Fla. L. Weekly Fed. C 274,649 F.3d 1248
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Charles WILLIS, a.k.a. Monte, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

649 F.3d 1248

23 Fla. L. Weekly Fed. C 274

UNITED STATES of America, Plaintiff–Appellee,

v.Charles WILLIS, a.k.a. Monte, Defendant–Appellant.

No. 09–15676.

United States Court of Appeals, Eleventh Circuit.

Aug. 17, 2011.

Lance J. Hamilton (Court–Appointed), Vidalia, GA, for Appellant.R. Brian Tanner, James C. Stuchell, Savannah, GA, for Appellee.Appeal from the United States District Court for the Southern District of Georgia.Before TJOFLAT, WILSON and SEYMOUR,^* Circuit Judges.

TJOFLAT, Circuit Judge:

Charles Willis appeals substantive and procedural aspects of his 151–month sentence. After initially receiving a much longer term of imprisonment, Willis moved to vacate his sentence under 28 U.S.C. § 2255, raising six claims of ineffective assistance of counsel. The district court found merit in one of those claims—that counsel should have challenged the imposition of a career offender enhancement—and ordered a resentencing hearing to sentence him free of that enhancement. At the resentencing hearing, Willis attempted to challenge other inputs into his sentence—the quantity of drugs attributable to him and a firearm enhancement—that his § 2255 motion also alleged had been handled incompetently by trial counsel. The district court refused to consider these arguments and imposed the sentence challenged in this appeal. Because we find no basis to disturb this ruling, or any of the other decisions Willis challenges, we affirm.

I.

A.

Willis was indicted in October 2006 of conspiring to “possess with the intent to distribute, and to distribute, 50 grams or more of cocaine base (crack) and 5 kilograms or more of cocaine hydrochloride (powder),” in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2. In September 2007, Willis pled guilty to the lesser-included offense of conspiracy to distribute an unspecified quantity of both identified drugs, and proceeded to sentencing.

The district court's Probation Office prepared a pre-sentence investigation report (“PSR”), as required by Federal Rule of Criminal Procedure 32. The PSR determined a total offense level of 33, which included an estimated drug quantity of 32 kilograms of cocaine hydrochloride, United States Sentencing Commission, Guidelines Manual, § 2D1.1(c)(3), and a two-level enhancement for possessing a firearm in connection with the offense, id. § 2D1.1(b)(1). ¹ The PSR also determined that Willis's prior felony convictions made him eligible for the career offender enhancement under § 4B1.1, giving Willis a criminal history category of VI. These inputs yielded a prison range of 235 to 240 months. Recognizing Willis's assistance in other prosecutions, the Government filed a motion for a downward departure under § 5K1.1. The district court granted the motion and sentenced Willis to 192 months' imprisonment.

Willis appealed his sentence, contending, among other things, that the district court erroneously applied the firearm enhancement. This court affirmed Willis's sentence, finding that the district court did not err by applying the firearm enhancement “because law enforcement found the firearm at issue in Willis's home along with substantial evidence of drug trafficking activity.” United States v. Willis, 284 Fed.Appx. 687, 689 (11th Cir.2008).

B.

In December 2008, Willis filed a motion to vacate his sentence under 28 U.S.C. § 2255.² The motion argued that Willis's counsel had been ineffective for: (1) failing to challenge the career offender enhancement; (2) failing to contest the firearm enhancement; (3) failing to object to the drug amounts attributed to him in the PSR; (4) ineffectively handling a motion to suppress evidence, including the firearm; (5) failing to object to improper venue; and (6) advising him to accept the plea agreement. The Government conceded that Willis was not eligible for the career offender enhancement, but argued that the remaining claims were meritless.

Willis's motion was referred to a magistrate judge, who issued a Report and Recommendation in May 2009. The Report and Recommendation accepted the Government's concession and concluded that Willis “should be resentenced under the appropriate sentencing guideline provisions.” Willis's remaining ineffective assistance claims were rejected without an evidentiary hearing. On June 22, 2009, the district court adopted the Report and Recommendation and ordered resentencing. The relevant portion of the order reads:

Movant Charles Willis is entitled to be resentenced absent the career offender enhancement applied at his initial sentencing. Accordingly, the United States Probation Office is DIRECTED to prepare a new presentence investigation report reflecting the fact that Willis is not a career offender under the sentencing guidelines. The Court will appoint new counsel to represent movant at the resentencing hearing, and the Clerk is therefore DIRECTED to prepare the appropriate appointment papers (CJA–20) forthwith. The Court will schedule the case for resentencing once the revised presentence investigation report has been prepared and reviewed by counsel.

The new PSR, which Willis received on July 7, 2009, again set Willis's total offense level at 33. This calculation again included the firearm enhancement and the estimated 32 kilograms of cocaine hydrochloride. Without the career offender enhancement, Willis's criminal history decreased to level II. This profile provided a sentencing range of 151 to 188 months' imprisonment.

Willis filed objections to the PSR on October 7, 2009. He contested the firearm enhancement and the drug quantity, items that his § 2255 motion faulted his trial counsel for neglecting. Regarding the drug quantity, Willis argued that he actually distributed 14.75 kilograms of cocaine; this new quantity would reduce his base offense level from 34 to 32, and his total offense level from 33 to 31. He did not raise any objections to his new criminal history calculation.

The Probation Office responded to Willis's objections on October 20, 2009, which Willis's attorney received on October 21, 2009. The Probation Office recommended that the district court “engage in no further analysis” of both the firearm enhancement and the drug quantity because the district court had not granted Willis's § 2255 claims regarding those two issues.

The same day that the Probation Office issued its responses, the district court set October 22, 2009, as the date for Willis's resentencing hearing. Noting that 18 U.S.C. § 3552(d) requires that defendants be given at least ten days to review the PSR, Willis filed a motion on October 20 to postpone the sentencing hearing.

The sentencing hearing was held as scheduled on October 22. At that hearing, the district court summarily denied Willis's motion for a postponement. The court stated that it only planned to address Willis's career offender status. It would not allow Willis to relitigate the firearm enhancement and the drug quantity because (1) the issues had been previously litigated during Willis's original sentencing and appeal, and (2) the court did not grant Willis's § 2255 ineffective assistance claims regarding those issues. Having limited the hearing's scope, the court noted that Willis and his attorney both had access to his old PSR from 2007—which was identical to the 2009 PSR except for the career offender enhancement—and did not object to any statements regarding the PSR's revised criminal history category.

After addressing the postponement issue, the court accepted the PSR's calculations and determined that the guideline range suggested 151 to 188 months' imprisonment. The Government then re-asserted its motion for a downward departure under § 5K1.1 for Willis's assistance in securing two other convictions. The district court denied the Government's motion. After reviewing Willis's criminal history, the court determined that Willis was a “lifelong major drug dealer” who had been “very successful” at “us[ing] the system by saying ‘I will provide substantial assistance’ ” every time he was caught in the act.

At the conclusion of the hearing, the court sentenced Willis to 151 months' imprisonment, a $10,000 fine, a $100 special assessment, and five years of supervised release.

C.

Willis filed a timely notice of appeal of his new sentence. His brief raised three issues: (1) whether the district court should have postponed the October 22 hearing; (2) whether the district court correctly limited the scope of the sentencing hearing; and (3) whether the district court imposed an unreasonable sentence by denying the Government's § 5K1.1 motion.

A panel of this court interpreted this appeal as challenging “both the district court's partial denial of his § 2255 motion and the new sentence the court imposed after granting his § 2255 motion in part.” Noting that the district court did not provide Willis a certificate of appealability on the remaining ineffective-assistance-of-counsel claims, as required by 28 U.S.C. § 2253(c), the panel's April 29, 2010 opinion retained jurisdiction over Willis's case, but issued a limited remand to the district court to rule on the certificate of appealability issue. On remand, the district court granted Willis a certificate of appealability on the ineffectiveness claim regarding the firearm enhancement, but denied certificates of appealability on the other four claims.³ We ordered Willis and the Government to file new briefs in light of the district court's order.

II.

Floating in this case are two competing notions of what, exactly, Willis is challenging. The district court's June 22, 2009 order denied in part Willis's § 2255 motion, in which he argued that his trial counsel was ineffective for, among other things, (1) failing to challenge adequately the firearm enhancement; (2) failing to challenge the drug quantity; and (3) failing to address adequately a motion to suppress the firearm that led to the sentencing enhancement. At the October 22, 2009 resentencing hearing, the trial...