United States v. Canty
| Decision Date | 25 August 2011 |
| Docket Number | Case No. 10C 8078 |
| Parties | UNITED STATES OF AMERICA, Petitioner, v. ANTHONY CANTY, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Petitioner Anthony Canty was sentenced to 360 months' imprisonment following a jury trial in which he was found guilty for drug and firearm offenses. Before the Court is Canty's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
On January 11, 2004, Chicago Police Department officers responded to a report of drug dealing on the first floor of an apartment building in Chicago. Upon arrival, the officers observed Canty in the hallway, who appeared to be covering up something in the front of his pants. One of the officers patted him down and felt what he believed to be a handgun. Canty then ran into his apartment and locked the door. The officers broke down Canty's door and entered his apartment, where they saw Canty attempting to place three handguns into the speaker of a large-screen television set. The officers arrested Canty and searched the rest of the apartment. The search turned up a shoe box, containing crack cocaine, a heroin and cocaine mixture, marijuana, and $1,806 in cash.The officers also seized a computer printer/copier/scanner with a $100 bill and $50 bill taped to the scanner screen and photocopies of the bills in the printer tray.
Shortly after Canty's arrest, he was interviewed by the arresting officers and a United States Secret Service agent. Canty admitted the following: the handguns and drugs in the apartment were his and that he was a drug dealer not a user. Canty also admitted the same in his testimony before a grand jury.
On June 1, 2004, a federal grand jury returned a six-count indictment, charging Canty with: (a) three counts of knowingly possessing with intent to distribute controlled substances, namely, mixtures or substances containing cocaine base, heroin and, marijuana, in violation of 21 U.S.C. § 841(a)(1) (Counts One through Three); (b) knowingly possessing firearms in relation to drug trafficking crimes, in violation of 18 U.S.C. § 924(c) (Count Four); (c) being a felon in possession of firearms, namely, three handguns, in violation of 18 U.S.C. § 922(g) (Count Five); and (d) counterfeiting United States currency, in violation of 18 U.S.C. § 471 (Count Six).
On February 10, 2005, following a three-day trial, a jury convicted Canty of all six counts charged in the indictment. On January 19, 2006, Canty was sentenced to 360 months' imprisonment, to be followed by a total of five years' supervised release. Following the sentencing hearing, Canty appealed his conviction regarding the counterfeiting charge in Count Six of the indictment only. On September 19, 2007, the Seventh Circuit reversed Canty's sentence on Count Six and remanded the matter to this Court for retrial on that count. United States v. Canty, 499 F.3d 729 (7th Cir. 2007). On April 15, 2008, on the Government's motion, Count Six was dismissed.
Canty was resentenced on March 25, 2009. (Dkt. No. 246, 3/25/09 Tr.) In connection with Canty's original sentencing, the Probation Office issued a Presentence Investigation Report ("PSR"). In connection with Canty's resentencing, the Probation Office issued an updated presentence report ("UPSR"). Id. On March 19, 2009, the Probation Office issued an "Addendum to the Presentence Report," addressing Canty's objections to the UPSR.
According to the PSR, Canty had the following seven felony convictions before his arrest in January 2004: (i) a 1980 conviction for aggravated battery and unlawful restraint; (ii) a 1982 conviction for felony possession of cannabis; (iii) a 1992 conviction for distribution of a controlled substance; (iv) a 1992 conviction for possession with intent to distribute a controlled substance; (v) a 1996 conviction for a controlled-substance offense in the second degree; (vi) a second 1996 conviction for a controlled-substance offense in the second degree; and (vii) a 1996 conviction for defeating security on personalty.1 Id. (PSR lines 269-388.)
Based on Canty's criminal history, Canty qualified as a Career Offender under United States Sentencing Guidelines ("Guidelines" or "USSG") § 4B1.1 and an Armed Career Criminal under 18 U.S.C. § 924(e) and Guideline § 4B1.4. (PSR lines 220-49.) The Career Offender provision states:
[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1. Canty was a Career Offender because at the time Canty committed the felony controlled-substance offenses, he was at least eighteen and, as set forth above, had at least two prior felony controlled-substance convictions. (PSR lines 220-26, 269-388.)
The Armed Career Criminal provision under 18 U.S.C. § 924(e)(1) provides that:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
Canty was an Armed Career Criminal because: (a) one of the counts of conviction was a violation of 18 U.S.C. § 922(g); and, as set forth above, (b) Canty had at least three prior convictions for a violent felony or serious drug offense, such as: (i) the 1980 conviction for aggravated battery; (ii) the 1992 distribution of a controlled substance conviction; and (iii) the two 1996 controlled-substance offenses. (PSR lines 232-38, 267-85, 295-305, 335-47, 371-88.)
Due to Canty's Career Offender status (as well as 13 criminal history points), Canty's criminal history category was VI. (PSR lines 263-406.) The Guideline range for either Canty's Career Offender or Armed Career Criminal status is the same: 360 months' to life imprisonment. (PSR lines 247-49.) Following the issuance of the UPSR, Canty filed a sentencing memorandum, and a supplemental sentencing memorandum in which, among other things, he objected to the determination that he was an Armed Career Criminal on the grounds that: (a) the government should have been required to prove the underlying offenses beyond a reasonable doubt; and (b) hisunderlying convictions did not properly qualify him for the enhanced status. On March 25, 2009, at the resentencing hearing, Canty's counsel was asked if Canty still objected to the determination that he was an Armed Career Criminal or Career Offender. Defense counsel stated that Canty was no longer objecting.
Canty was sentenced at the low end of the Guideline range to a term of 360 months' imprisonment. Canty appealed this sentence, arguing that this Court failed to correctly calculate his advisory guidelines sentence and to give meaningful consideration to the 18 U.S.C. § 3553(a) sentencing factors. The Seventh Circuit affirmed Canty's sentence on February 5, 2010. United States v. Canty, No. 09-1838, 2010 WL 395931, at *1 (7th Cir. Feb. 5, 2010).
On December 20, 2010, Canty filed the instant Motion, challenging his sentence based on his claims that: (a) this Court did not have subject-matter jurisdiction; (b) his Due Process rights were violated; (c) the Ex Post Facto clause of the United States Constitution was violated; (d) this Court abused its discretion; (e) he is actually and factually innocent; (f) his counsel provided him with ineffective assistance; and (g) this Court should recalculate his offense level because of the newly implemented 18:1 crack cocaine-to-powder-cocaine ratio. (Dkt. No. 1.)
Section 2255 reads, in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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 a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.
28 U.S.C. § 2255. The relief described in this section is available only if there was "an error of law that is jurisdictional, constitutional, or constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1992)). Habeas corpus relief pursuant to § 2255 is only for "extraordinary situations," and the motion is not to be used as a substitute for an appeal. Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 2006) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34(1993)).
A claim that could have been raised on appeal is procedurally defaulted if not raised in the appeal. Ballinger v. United States, 379 F.3d 427, 429 (7th Cir. 2004). The failure to raise an ineffective-assistance-of-counsel claim on appeal, however, does not constitute a waiver of a claim by a defendant under § 2255. Massaro v. United States, 538 U.S. 500, 504, (2003). A district court must review the record and draw all reasonable inferences in favor of the government when reviewing a § 2255 motion. Carnine v. United States, 91A F.2d 924, 928 (7th Cir. 1992). Finally, a § 2255 Petitioner is entitled to an evidentiary hearing only where ...
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