Opinion
15-C-109
10-17-2024
UNITED STATES OF AMERICA, Plaintiff, v. BRANDI KNIEBES-LARSEN, Defendant.
ORDER DENYING MOTIONS FOR SENTENCE REDUCTION PURSUANT TO 18 U.S.C. § 3582(c)(1) AND (c)(2) AND ORDER APPOINTING COUNSEL UNDER 18 U.S.C. § 3006(a)(2)(B)
William C. Griesbach, United States District Judge
On August 12, 2015, Defendant Brandi Kniebes-Larsen entered a plea of guilty to conspiracy to distribute and possess with intent to distribute 100 grams or more of a mixture and substance containing heroin pursuant to a written Plea Agreement. Dkt. No. 9. The parties acknowledged in the Agreement that the government would recommend that the applicable base level under the Sentencing Guidelines Manual §2D1.1(a)(1) would be 43 based on the government's view that F.S. had died as a result of heroin Kniebes-Larsen had delivered. The government also agreed to recommend that the court impose a sentence of 144 months. Id., ¶¶ 17, 23.
In return for not being charged with distribution resulting in death under 21 U.S.C. § 841(b)(1)(B), which would have mandated a minimum sentence of life, Kniebes-Larsen not only agreed to plead guilty to the lesser charge of conspiracy to distribute 100 grams or more of heroin but also waived her right to appeal or seek post-conviction relief. As part of the plea agreement, the defendant, subject to certain exceptions, “waived her right to appeal her sentence or challenge her conviction or sentence in any post-conviction proceeding, including but not limited to a motion pursuant to 28 U.S.C. § 2255.” Id., ¶ 35. On November 24, 2015, the defendant was sentenced to 144 months in the custody of the Bureau of Prisons. Before me now are her two pro se motions to reduce her sentence pursuant to the First Step Act. Dkt. Nos. 47 and 50.
In her first motion, Kniebes-Larsen argues that the sentence imposed was increased as a result of an information filed by the government pursuant to 21 U.S.C. § 851 that provided notice that she had a prior convictions for felony drug offenses. Under current law, she argues, these offenses would no longer qualify as predicates for the § 851 enhancement that was applied to her case. Kniebes-Larsen argues that the change in the law constitutes the extraordinary and compelling reasons needed to justify a reduction in her sentence.
The government does not deny that Kniebes-Larsen's prior convictions would no longer qualify as predicates for an enhanced sentence under 21 U.S.C. § 851. The government nevertheless opposes her motion noting that this exact issue was before the Seventh Circuit in United States v. Brock, 39 F.4th 462 (7th Cir. 2022). In Brock, the court rejected a similar claim by a defendant, who, like Kniebes-Larsen, had waived his right to appeal or seek post-conviction relief as part of his plea agreement. There, as in this case, the defendant argued that a change in the law concerning what crimes could be used to enhance a defendant's sentence under § 851 constituted an extraordinary and compelling reason for reducing his sentence under 18 U.S.C. § 3582(c)(1). Relying on its previous decisions in United States v. Thacker, 4 F.4th 569 (7th Cir. 2021), and United States v. Martin, 21 F.4th 944 (7th Cir. 2021), the court held in Brock that the compassionate release statute could not be used to pursue a sentence reduction based on such changes in law. 39 F.4th at 464-65. “[A]llowing Brock to pursue the relief he seeks under § 3582(c)(1)(A),” the court held, “would license an end run around the appeal and collateral attack waivers he agreed to in his plea agreement.” Id. at 465.
The court noted in Brock that the defendant could have challenged the law at the time the § 851 information was filed: “Nothing prevented Brock and his counsel from arguing that his 2005 conviction came under a provision of Illinois law that was too broad to enhance his federal sentence.” Id. But by entering into a plea agreement in which he waived his right to appeal or seek postconviction relief, Brock had “assume[d] the risk of future changes in circumstances in light of which one's bargain may prove to have been a bad one.” Id. (quoting United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005)). The court concluded:
Judicial decisions, whether characterized as announcing new law or otherwise, cannot alone amount to an extraordinary and compelling circumstance allowing for a sentence reduction. To permit otherwise would allow § 3582(c)(1)(A) to serve as an alternative to a direct appeal or a properly filed post-conviction motion under 28 U.S.C. § 2255. We rejected that view in Thacker and Martin and do so again here.Id. at 466.
The same conclusion follows here with respect to Kniebes-Larsen's motion for sentence reduction based on compassionate release. Because she forewent her opportunity to challenge the governments § 851 information and waived her right to appeal or seek postconviction relief in return for the government's concessions, she cannot raise that same issue under the guise of a motion for compassionate release under § 3582(c)(1).
Kniebes-Larsen's more recent motion for sentence reduction is brought under § 3582(c)(2). Dkt. No. 50. In that motion, Kniebes-Larsen seeks a reduction under Amendment 821 to the United States Sentencing Guidelines, which eliminated the two-point increase in criminal history points that applied when a defendant committed the offense while on state or federal supervision related to a different charge or conviction. Under Amendment 821, which applies retroactively, no points are given for an offense committed while on supervision. Kniebes-Larsen notes she received two points in her case because she committed her offense while on probation for a state court conviction. Dkt. No. 13, ¶ 45. She contends that because she was assigned status points at the time of her sentencing, she is entitled to a sentence reduction now under Amendment 821.
Kniebes-Larsen's second motion must be denied because the addition of the two points for committing the offense while on state supervision had no effect on her sentence range under the Guidelines. Kniebes-Larsen was found to fall within Criminal History Category VI, the highest Category. A person is in Category VI if they have 13 or more criminal history points. Kniebes-Larsen's prior convictions resulted in a criminal history score of 14, even before the two points for her status were added. As a result, her sentence range under the Guidelines was 360 months (30 years) to Life. The 2-point addition for her status thus had no impact on her sentence range under the Guidelines. Even if her sentence range would have been reduced, she received a sentence well below her sentence range even if she had been in Criminal History Category I. Kniebes-Larsen's motion to reduce her sentence under § 3582(c)(2) (Dkt. No. 50) is therefore denied.
Notwithstanding its conclusion that Kniebes-Larsen is not entitled to relief under 18 U.S.C. § 3582(c)(1) or (2), the court is concerned that Kniebes-Larsen may be entitled to relief under 28 U.S.C. § 2255. As noted, Kniebes-Larsen waived her right to appeal or seek postconviction relief under § 2255 as part of her Plea Agreement. But there were exceptions to the waiver. One of the exceptions was ineffective assistance of counsel. Based on the government's case against Donald S. Harden, No. 16-CR-0035, it appears that Kniebes-Larsen may have a claim that falls within the exception to her appeal waiver.
Harden was found guilty by a jury of conspiracy to distribute the same heroin that caused the death of F.S., the same person whose death was found to have resulted from Kniebes-Larsen's delivery. Id. Dkt. No. 41. Harden was Kniebes-Larsen's supplier, and she testified at Harden's trial that he supplied the heroin that she then gave to another individual who delivered it to F.S. Upon his conviction for conspiracy to distribute resulting in F.S.'s death, Harden received a mandatory life sentence, which was affirmed on appeal. United States v. Harden, 893 F.3d 434 (7th Cir. 2018).
Harden then filed a motion to vacate his conviction under 28 U.S.C. § 2255, alleging ineffective assistance of counsel based in part on his attorney's failure to retain an expert to challenge the government's evidence that F.S. had died as a result of ingesting the heroin that Harden had supplied. No. 19-cv-0153-WCG. The court denied Harden's motion without a hearing on the ground that he had failed to allege that an expert would have been available to offer an opinion that was helpful to Harden. Id., Dkt. No. 8. The Seventh Circuit again affirmed. Harden v. United States, 986 F.3d 701 (7th Cir. 2021).
Harden recently applied to the Court of Appeals for authorization to file a successive motion to collaterally attack his conviction under § 2255(h). Now armed with reports of a pharmacist expert and a toxicologist expert who opined that the heroin linked to Harden (and to Kniebes-Larsen) could not have been the fatal dose, Harden sought leave to assert claims that “(1) his counsel was ineffective (a claim previously argued, but now bolstered by additional evidence); (2) the government's forensic evidence was so faulty that it violated his due process rights; and (3) his trial resulted in a fundamental miscarriage of justice, which Harden contends is a freestanding claim for relief under § 2255(a).” On February 16, 2024, the Court of Appeals granted Harden authorization to file his successive motion, 16-CR-0035, Dkt. No. 86 at 2.
On May 23, 2024, Harden filed his second motion to vacate his conviction in this court, noting that it was not opposed by the government. Id., Dkt. No. 84; No. 24-cv-639, Dkt. 1. “In light of the Seventh Circuit's order and the evidence on which it was based,” the motion states, “the parties agree that Harden's death-enhanced mandatory life sentence should be vacated and that he should be resentenced based on his undisturbed conviction for conspiring to distribute 100 grams or more of a mixture or substance containing a detectable amount of heroin in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846.” Id., Dkt. No. 1 at 2. In anticipation of the motion to vacate Harden's sentence, his re-sentencing is currently set for October 28, 2024. Id., Dkt. No. 4.
In light of these developments in Harden's case, it appears that Kniebes-Larsen may also have a claim for relief under § 2255. If the government concedes that the heroin Harden supplied through Kniebes-Larsen did not cause F.S.'s death, then it follows that F.S.'s death should not have been used to enhance Kniebes-Larsen's Guideline sentence range. It is possible that her attorney's failure to retain an expert to challenge the government's evidence could constitute ineffective assistance of counsel. Although the one-year limitation from the time when Kniebes-Larsen's judgment of conviction became final has expired, additional time may be allowed if the facts supporting her claim could not have been discovered earlier through the exercise of due diligence. 28 U.S.C. § 2255(f)(4). Thus, it would seem possible that Kniebes-Larsen is entitled to relief under § 2255.
No § 2555 motion is currently before the court, and so the court has no authority to grant such a motion, nor does it intend to suggest that such a motion should be granted. But the circumstances described herein warrant further consideration on Kniebes-Larsen's behalf in the interests of justice. The court therefore directs the Clerk to refer this case to the Federal Defender for appointment of counsel for Kniebes-Larsen under 18 U.S.C. § 3006A(a)(2)(B) to investigate the possibility of filing such a motion. Counsel, upon appointment, should promptly consult with the government to determine what its position might be as to such a motion.
SO ORDERED.