United States v. Liscano
| Decision Date | 27 September 2021 |
| Docket Number | 02 CR 719-16 |
| Parties | United States of America, v. Steve Liscano |
| Court | U.S. District Court — Northern District of Illinois |
In 2003, Steve Liscano was convicted of conspiring to distribute cocaine. He was sentenced to life imprisonment because he had two previous felony drug convictions. Liscano's appeal was denied, and he unsuccessfully petitioned for habeas relief. Liscano now moves for compassionate release pursuant to the First Step Act, 18 U.S.C. § 3582(c)(1)(A). For the reasons that follow, the Court grants Liscano's motion and reduces his life sentence to time served.
Three strikes and you're out. That's the rule in baseball but it was also the rule on the books when Steve Liscano was sentenced to life imprisonment in 2005 for conspiring to distribute cocaine. Before receiving his life sentence, Liscano had been twice convicted under Illinois law for possessing cocaine. Those two felony drug convictions, combined with his third drug conviction stemming from the conspiracy, required the sentencing judge to impose a term of imprisonment no less than life behind bars.
The first conviction came just after Liscano's 18th birthday in 1995 when he was caught with a baggie of cocaine in his pocket. R. 748 ¶¶ 310-315. He received a two-year prison sentence but was paroled after serving four months. Id. ¶¶ 310-311. The second conviction occurred five years later. Id. ¶¶ 385-386. Authorities searched his home and found a residual amount of cocaine-.9 grams to be exact. Id. ¶¶ 390392; R. 736-1 at 6; R. 736-16 at 23. Liscano was sentenced to 1.5 years in prison, but he was again paroled after three months. R. 748 ¶¶ 385-386.
Then came the third conviction. In 2002, Liscano and about a dozen others were indicted in the Northern District of Illinois with knowingly participating in a conspiracy to distribute and possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. See R. 131-1. The main conspirator was Juan Corral, whose incriminating phone calls with others (including Liscano) were recorded by the government. See United States v. Bustamante, 493 F.3d 879, 882 (7th Cir. 2007). Corral pled guilty and agreed to testify against his co-conspirators, while Liscano exercised his constitutional right to trial. Id. The evidence consisted primarily of Corral's testimony and the recorded phone calls, and specifically showed that Corral supplied Liscano cocaine over a 10-month period, that Liscano tipped-off Corral to the presence of police near his home, and that Liscano warned Corral of a possible raid. Id. Liscano and Corral also had other conversations about drug operations. Id. After considering this evidence, the jury found Liscano guilty in 2003.
Sentencing followed. Several hearings were held and the sentencing judge limited Liscano's role in the conspiracy to 12 to 13 kilograms of cocaine, which combined with his criminal history category of VI, resulted in an applicable guideline range of 210 to 262 months' imprisonment.[1] R. 736-18 at 118:6-20. But a sentence within that range is not what Liscano received. Instead, the judge was required by statute to impose a mandatory minimum sentence of life imprisonment. Indeed, before trial, the prosecutor assigned to Liscano's criminal case filed an information under 21 U.S.C. § 851 indicating the government's intent to seek an enhanced sentence based on Liscano's prior drug convictions. See R. 281. While the notice did not explicitly state that the enhanced sentence would be life imprisonment, Liscano was federally convicted under 21 U.S.C. § 841, which at the time required a mandatory minimum sentence of life for a defendant who had two or more prior convictions for a “felony drug offense.” See 21 U.S.C. § 841(b)(1)(A) (2005). A “felony drug offense” is an offense that is “punishable by imprisonment for more than one year” under any state or federal law that “prohibits or restricts conduct relating to narcotic drugs.” See 21 U.S.C. § 802(44). This definition casts a wide net, and since Liscano's predicate offenses fell within its reach-even though the first offense involved a baggy of cocaine and the second mere residue-the sentencing judge's hands were tied. He had to impose a life sentence. Expressing some hesitation to do so, the judge remarked that Liscano's predicate offenses were R. 736-16 at 38:21-22.
Liscano appealed his conviction and sentence, both of which the Seventh Circuit affirmed in 2007. See Bustamante, 493 F.3d at 879. He then collaterally attacked his sentence under 28 U.S.C. § 2255, arguing ineffective assistance of counsel. He was not represented by an attorney in that proceeding. The district court denied the motion, see Liscano v. United States, 2011 WL 2938103, at *1 (N.D. Ill. July 18, 2011), and the Seventh Circuit denied a request for a certificate of appealability.
A few years later, Liscano filed in the District Court for the Central District of Illinois a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Proceeding pro se again, Liscano contended that his baggy conviction should not have counted as a predicate offense at sentencing in light of Mathis v. United States, 136 S.Ct. 2243 (2016), where the Supreme Court held that Iowa's burglary statute does not establish a form of generic burglary and therefore does not support a sentencing enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). Liscano argued that Mathis rendered his prior drug convictions categorically broader than the definition of “felony drug offense” in 21 U.S.C. § 802(44).
The district court denied the petition, holding that § 2255(e) barred Liscano from seeking relief under § 2241. See Liscano v. Kallis, 2019 WL 8333551 (C.D. Ill. Feb. 5, 2019). More specifically, the court explained that federal prisoners who collaterally attack their conviction or sentence generally proceed by way of motion under § 2255. Id. at *2. Liscano may petition under § 2241, the court continued, but only under limited circumstances-that is, if the remedy available to him under § 2255 was “inadequate or ineffective to test the legality of his detention.” Id. (citing 28 U.S.C. § 2255(e)). This rarely occurs, as Liscano would be required to show at a minimum (1) that Mathis created a new rule that applies retroactively to cases on collateral review, and (2) that he could not have invoked a Mathis-type argument in his earlier proceedings. Id. at *2-3. In the district court's opinion, Liscano could not meet this heavy burden. Id. at *2.
An appeal followed but this time Liscano was represented by counsel. The government opposed Liscano's appeal and defended the district court's decision. However, the government expressly stated in its appellate brief that “it does not contest Liscano's argument that the sentencing court erred in imposing a mandatory life sentence.” Liscano v. Entzel, No. 19-1531 (7th Cir.), Appellee's Brief at 11. That error, according to the government, was insufficient by itself to justify relief under § 2255. Id. The Seventh Circuit affirmed the district court's judgment in March 2021; its unpublished order did not address the government's belief that Liscano's sentence was erroneously imposed. See Liscano v. Entzel, 839 Fed.Appx. 15, 16 (7th Cir. 2021).
Liscano filed his motion for compassionate release soon thereafter. He is 44 years-old and has served around 226 months (18 years) of his life sentence.
Under the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i), a court may modify a term of imprisonment upon a motion of the defendant “after the defendant has fully exhausted all administrative rights to appeal” and 30 days have passed without the Bureau of Prisons filing a motion on the defendant's behalf. In determining whether a sentence reduction under § 3582 is appropriate, courts consider: (1) whether “extraordinary and compelling reasons” warrant a reduction; and (2) whether a reduction is consistent with the factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A)(i); United States v. Thacker, 4 F.4th 569, 576 (7th Cir. 2021) (); United States v. Gunn, 980 F.3d 1178, 1179 (7th Cir. 2020).
The parties do not dispute that Liscano has met the statutory exhaustion requirement, so the Court turns to whether he has established extraordinary and compelling reasons warranting a reduction of his sentence and if that reduction is consistent with the sentencing factors in 18 U.S.C. § 3553(a).
Liscano must first show that his case presents “extraordinary and compelling reasons [that] warrant ... a reduction” in his prison sentence. 18 U.S.C. § 3582(c)(1)(A)(i). Before Gunn, the Court's determination of extraordinary and compelling reasons was controlled by the Policy Statement articulated in U.S.S.G. § 1B1.13, whose Application Notes include four explicitly defined considerations- serious medical reasons, age, family circumstances, and the Director of the Bureau of Prisons' determination that an extraordinary and compelling reason exists. See U.S.S.G. § 1B1.13 n.1(A)-(D). In Gunn, however, the Seventh Circuit held that the Policy Statement “addresses motions and determinations of the Director, not motions by prisoners, ” and that without an updated statement from the U.S. Sentencing Commission, the Policy...
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