Opinion
02 C 50006
March 26, 2002
MEMORANDUM OPINION AND ORDER
Donial Carter, who is in federal custody pursuant to conviction and sentences for violations of 18 U.S.C. § 371 and 18 U.S.C. § 2, 924(a)(1)(A), has filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. He contends he received ineffective assistance of trial and appellate counsel by their failing to object or raise an issue on appeal of (1) this court's erroneous calculation of U.S.S.G. § 2K2.1(b)(1); and (2) a double counting in applying U.S.S.G. § 2K2.1(b)(5) when that conduct was already considered in the charged offense base offense level of § 2K2.1(a)(7). (Caner was sentenced using the November 1, 1998 Guideline Manual). The government has filed a response in Opposition to the motion.
Section 2K2.1(b)(1) Issue
Carter contends that while the number of firearms involved in Counts 2 4 total 13, 2 of the firearms were purchased on February 6, 1998 (Count 2), 1 firearm was purchased on February 5, 1998 (Count 3) and 10 firearms were purchased on July 2, 1998 (Count 4), and all the firearms should not have been grouped. If they had not been grouped, there would be no enhancement for the firearms in Counts 2 and 3 as they are each less than the 3 firearms required for any enhancement under § 2K2.1(b)(1). Thus, he argues, he should have received only a three-Level enhancement for 8 to 12 firearms under § 2K2.1(b)(1)(C) rather than a four-level enhancement under § 2K2.1(b)(1)(D) for 13 to 24 firearms. As this claim lacks merit, Caner was not prejudiced and, therefore, cannot show ineffective assistance of counsel. Count I of the information charged Caner with conspiracy to straw purchase 13 firearms, he never asserted before the trial court that the conspiracy involved less than 13 firearms, and, m fact, acknowledged at sentencing his offense involved 13 fIrearms. In addition, it was proper to group Counts 2-4 under § 3D1.2(d) as the offense behavior was continuous in nature.
Section 2K2.1(b)(5) Issue
Caner contends he should not have received a four-level enhancement under § 2K2.1(b)(5) because this conduct was "double counted" as it was taken into account in determining his base offense level under § 2K2.1(a)(7). Application Note 4 of § 1B1.1 provides, in part, that "[t]he offense level adjustments torn more than one specific offense characteristic within an offense guideline are cumulative (added together) unless the guideline specifies that only the greater (or greatest) is to be used." See United States v. Szakacs, 212 F.3d 344, 353 (7th Cir. 2000). The enhancement here under § 2K2.1(b)(5) is on different facts than what Caner's base offense level under § 2K2.1(a)(7) was premised on. Thus, as this claim too lacks merit, there is no prejudice upon which a claim of ineffective assistance of counsel can be made.
The § 2255 motion is denied.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision, has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that Donial Carter's § 2255 motion is denied.