IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA,

 Plaintiff,

 v.

JAMES McKENZIE, 

 Defendant.

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12 C 5254

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Petitioner James McKenzie, proceeding pro se, moved under 28 U.S.C. § 2255 to vacate, 

set aside, or correct his sentence. McKenzie pled guilty to conspiracy to possess with intent to 

distribute mixtures containing in excess of five kilograms of cocaine in violation of 21 U.S.C. § 

846 and knowingly possessing and carrying firearms in furtherance of a drug trafficking crime in 

violation of 18 U.S.C. § 924(c)(1)(A) and c(2). This Court sentenced McKenzie to 200 months 

imprisonment: 140 months for his violation of 21 U.S.C. § 846 and 60 months for his violation 

of 18 U.S.C. § 924(c)(1)(A) and c(2). In affirming this sentence, the Seventh Circuit explained 

that “McKenzie’s sentence of 200 months’ imprisonment was within a Guidelines range the 

district court calculated to be 168 to 210 months, a sharp decrease from the PSR calculation of 

262 to 327 months.” United States v. McKenzie, 656 F.3d 688, 692 (7th Cir. 2011). McKenzie 

now claims that he received ineffective assistance of counsel at sentencing because his lawyer 

failed to challenge the application of 21 U.S.C. § 841(b)(1)(A)(ii) to his conduct and because his 

lawyer failed to seek a downward departure to avoid a sentencing disparity. For the reasons 

stated herein, this Court denies McKenzie’s petition.
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FACTS

McKenzie was one of four individuals arrested on September 9, 2008, as part of an 

undercover sting operation involving the planned armed robbery of a drug stash house. On July 

1, 2008, co-defendant Tony Mahan met with an undercover agent posing as a drug courier to 

learn the details of the planned robbery. In a recorded conversation, the agent said he transported 

approximately five kilograms of cocaine per month for a Mexican drug trafficking organization. 

He said he was unhappy with the organization and needed a crew to help him rob the stash 

house. He described that the house typically had three men inside and that he usually saw twenty 

to thirty kilograms of cocaine being prepared for distribution there. Mahan told the agent he 

could put together a team of four with multiple firearms to help carry out the robbery and then 

recruited McKenzie to help.

On July 22, 2008, the agent met with Mahan, McKenzie, and Mario Barber and discussed 

at length various methods of carrying out the robbery. He relayed the same information he had 

previously told Mahan to McKenzie and Barber. They said they wanted to participate.

On the date of their arrest, McKenzie waited in a parking lot for a call telling them the 

location of the stash house. Barber and McKenzie arrived separately. At one point, they entered 

the agent’s car and the agent confirmed the details of the plan they thought they were about to 

execute. Specifically, he asked whether everyone present was aware that they were going to 

invade a home suspected of containing twenty kilograms of cocaine, armed with firearms; no one 

expressed reservations and, shortly after, the defendants were taken into custody. Following his 

arrest, a loaded .357 semi-automatic pistol was found underneath McKenzie’s seat, and a 

ballistic vest and latex gloves were found on McKenzie’s person.

As part of the factual basis for his plea agreement, McKenzie admitted (1) that between 

July and September 2008, he conspired with Barber and others to carry out the robbery of a drug 
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stash house containing cocaine, (2) that he had participated in the July 22 and September 9 

conversations detailed above, (3) that on the date of the planned robbery, he had armed himself 

with a .357 semi-automatic pistol to be used in the robbery, and (4) that on the date of the 

planned robbery, he had worn a ballistic vest. 

A presentence report calculated McKenzie’s base offense level under § 2D1.1 of the 

Federal Sentencing Guidelines (the “Guidelines”) at 34 for the type and quantity of drugs 

involved. McKenzie had 2 points added for obstruction because the probation officer concluded

he had lied during a suppression hearing, bringing his total offense level to 36.

At sentencing, McKenzie disputed the amount of cocaine for which he should be held 

accountable under the Guidelines. This Court reviewed transcripts of the recorded conversations 

and concluded that the general understanding was that McKenzie expected to recover twenty 

kilograms or more of cocaine from the stash house on the planned date of the robbery. This was 

consistent with the base offense level of 34, which covers drug quantities of at least fifteen, but 

less than fifty kilograms of cocaine. McKenzie also disputed a 2-level increase for obstruction of 

justice. But a 2-level increase was appropriate because McKenzie lied during a suppression 

hearing to make it seem as though police officers did not read him his Miranda rights. With a 

criminal history category of IV and an offense level of 36, McKenzie’s Guidelines range would 

have been 262-327 months imprisonment. 

Despite his obstruction of justice, McKenzie sought and received a 3-level reduction for 

acceptance of responsibility. McKenzie also challenged his criminal history category of IV as an 

overrepresentation of his actual criminal history. This Court agreed with McKenzie and reduced 

his criminal history category to III. Together, the offense level of 33 and criminal history 

category of III resulted in a Guidelines range of 168-210 months imprisonment for his conviction 
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under 21 U.S.C. § 846. After reviewing the factors that must be considered in determining an 

appropriate sentence under 18 U.S.C. § 3553, this Court sentenced McKenzie to 140 months 

imprisonment for his violation of 21 U.S.C. § 846 and 60 months imprisonment for his violation 

of 18 U.S.C. § 924(c)(1)(A) and c(2).

STANDARD OF REVIEW

A federal prisoner may move the court that imposed a sentence to vacate, set aside, or 

correct that sentence on the grounds that the court imposed the sentence in violation of the 

Constitution or laws of the United States, the court lacked jurisdiction to impose the sentence, 

the sentence exceeded that permitted by law, or the sentence is otherwise subject to collateral 

attack. 28 U.S.C. § 2255. “Relief under § 2255 is an extraordinary remedy because it asks the 

district court to essentially reopen the criminal process to a person who already has had an 

opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). A 

district court may dismiss a petition under § 2255 at an early stage—and without an evidentiary 

hearing—if the record before the court shows that the petitioner is not entitled to relief. Id.

The Sixth Amendment provides criminal defendants with the right to effective counsel. 

Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011). Courts presume that counsel 

“rendered adequate assistance and made all significant decisions in the exercise of reasonable 

professional judgment.” United States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011) (quoting 

Strickland v. Washington, 466 U.S. 668, 690 (1984)). To rebut this presumption, a petitioner 

must show that his counsel’s performance fell below an objective standard of reasonableness and 

that, but for his counsel’s performance, the result of the proceeding would have been different. 

Lathrop, 634 F.3d at 937; see also United States v. Peterson, 711 F.3d 770, 780 n.4 (“Ordinarily, 

when a defendant challenges a sentence on the basis of ineffective assistance of counsel, the 

Strickland standard will apply.”). “The benchmark for judging any claim to ineffectiveness must 
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be whether counsel’s conduct so undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

DISCUSSION

This Court must deny McKenzie’s petition because he has not shown that his counsel’s 

performance was deficient or that he suffered prejudice because of his counsel’s performance. 

McKenzie’s claim that his counsel should have challenged the charges applied to McKenzie’s 

conduct fails because the Seventh Circuit Court of Appeals has affirmed convictions charged 

under the same statute for similar conduct. And McKenzie’s claim that his counsel should have 

sought a downward departure to avoid sentencing disparities fails because McKenzie has not 

shown that any sentencing disparities exist, which undermines the notion that his counsel could 

have sought such a departure. Besides, the record shows that McKenzie’s counsel was effective. 

Facing a PSR calculation of 262-327 months imprisonment for his violation of 21 U.S.C. § 846, 

McKenzie received a below Guidelines sentence of 140 months imprisonment for that offense. 

This “sharp decrease”—which was just under 50% of the low-end of the PSR’s calculation and 

nearly 20% below the low-end of the reduced Guidelines range—reflects the effectiveness of 

McKenzie’s counsel.

A. Counsel Was Not Ineffective Because He or She Did Not Challenge Binding 

Precedent That Recognizes Charges Under 21 U.S.C. § 846 for Planned Stash 

House Robberies

McKenzie’s first claim takes issue with the application of 21 U.S.C. § 841(b)(1)(A)(ii) to 

McKenzie’s conduct. Section 841(b)(1)(A)(ii) imposes a mandatory minimum sentence of ten 

years imprisonment for an offense involving 5 kilograms or more of a mixture or substance 

containing a detectable amount of cocaine. The offense in this case was conspiracy to possess 

with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. According to 

McKenzie, the government overreached by charging him with a drug offense under 21 U.S.C. § 
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846 when it should have charged him under the Hobbs Act, 18 U.S.C. § 1951. McKenzie claims 

that his counsel failed to challenge what McKenzie considers an expansive application of 21 

U.S.C. § 846, and its corresponding mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(ii), to 

a planned robbery of drug stash house. 

But counsel’s performance does not fall below the minimum level of competence because 

he or she does not pursue a novel argument. See United States v. Rezin, 322 F.3d 443, 446-47 

(7th Cir. 2003) (“Criminal defendants have a right to a competent lawyer, but not to Clarence 

Darrow.”); see also Pierce v. United States, 686 F.3d 529, 533 (8th Cir. 2012) (“We noted that 

counsel is not ineffective for failing to raise an argument that was novel at the time of the 

proceeding, even if later found to be meritorious.”). Here, McKenzie acknowledges that 

“opinions across the land unfortunately demonstrate courts have been all too willing to assume 

(without actually deciding) that 21 U.S.C. § 841(b)(1)(A)(ii) should be interpreted expansively to 

encompass” the type of conduct at issue here. Some of the opinions McKenzie refers to are 

binding on this Court. For example, the Seventh Circuit affirmed the conviction of defendants 

who planned to rob a fictitious drug stash house in United States v. Corson, 579 F.3d 804, 813 

(7th Cir. 2009). Even though the opinion questions whether it was prudent to use government 

resources to prosecute based on a scheme to rob a drug stash house that did not exist, the Seventh 

Circuit affirmed the convictions for violations of 21 U.S.C. §§ 841(a)(1) and 846. Id. at 806, 809. 

The same is true in United States v. Millet, 510 F.3d 668, 678 (7th Cir. 2007), where the Seventh 

Circuit affirmed the conviction under 21 U.S.C. § 846 of a defendant who planned to rob a drug 

dealer of money and drugs. 

This Court cannot deviate from these cases, which establish the validity of convictions 

under 21 U.S.C. § 846 for planned armed robberies of drug stash houses. Nor can this Court fault 
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McKenzie’s counsel for failing to challenge established precedent. The failure to raise a novel 

argument does not render counsel’s performance deficient. See, e.g., Anderson v. United States, 

393 F.3d 749, 754 (8th Cir. 2005) (“Counsel’s failure to raise this novel argument does not 

render his performance constitutionally ineffective. While the Constitution guarantees criminal 

defendants a competent attorney, it ‘does not insure that defense counsel will recognize and raise 

every conceivable constitutional claim.’ ”). Therefore, this Court finds that McKenzie’s counsel 

offered adequate assistance with respect to the offense charged.

Moreover, McKenzie does not claim that he would not have pled guilty had his counsel 

challenged the application of 21 U.S.C. § 846 to his conduct. In fact, McKenzie does not 

challenge the validity of his plea, which this Court determined McKenzie entered voluntarily and 

knowingly. In his plea, McKenzie admits to the underlying conduct. The Seventh Circuit’s 

affirmances of convictions for planned armed robberies of stash houses—to include the Seventh 

Circuit’s affirmance of McKenzie’s sentence—indicate that McKenzie would not have received 

a different result. Therefore, this Court finds that the performance of McKenzie’s counsel did not 

prejudice McKenzie.

B. Counsel Was Not Ineffective Because He or She Did Not Seek a Downward 

Departure Based on Sentences Imposed for Different Offenses

McKenzie also claims that his counsel’s performance was inadequate because he did not 

seek a downward departure under 18 U.S.C. § 3553(a)(6) to avoid sentencing disparities. 

Sentencing disparities are a concern only where the sentences compared involve similar conduct 

and defendants with similar records. United States v. Brown, 732 F.3d 781, 788 (7th Cir. 2013). 

“[A] different sentence for the same charge does not alone raise any concern about unwarranted 

disparities under § 3553(a)(6).” Id. at 789. 
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McKenzie claims that “[a] number of similarly situated offenders in other districts 

received drastically lower sentences participating in the exact same reverse sting operation.” 

McKenzie points to several cases in support of his claim. In United States v. Ware, 2010 U.S. 

Dist. LEXIS 12106 (E.D. Wis. 2010), the defendant received 21 months imprisonment despite a 

Guidelines range of 33 to 41 months imprisonment in a case where the planned robbery involved 

fourteen kilograms of cocaine. In United States v. Raddle, 2010 U.S. Dist. LEXIS 5055 (E.D. 

Wis. 2010), the defendant received 24 months imprisonment despite a Guidelines range of 33-41 

months imprisonment in a case where the planned robbery involved fourteen kilograms of 

cocaine. In United States v. Wilson, 2010 U.S. Dist. LEXIS 67941 (E.D. Wis. 2010), the 

defendant received 27 months imprisonment despite a Guidelines range of 41-51 months 

imprisonment in a case where the planned robbery involved fourteen kilograms of cocaine. 

These three cases involved a planned robbery of less cocaine than at issue in McKenzie’s case. 

In United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004), the defendant received 63 

months imprisonment for a planned robbery of twenty-five kilograms of cocaine. Importantly, 

each of the convictions in these cases were under the Hobbs Act. 

McKenzie’s conviction, however, is for a violation of 21 U.S.C. § 846. Not only does 

McKenzie’s conviction require a different Guidelines calculation than a conviction under the 

Hobbs Act, but McKenzie’s conviction also carries with it a mandatory minimum sentence. 

Because the underlying offenses are different, the purported disparities McKenzie refers to are 

not relevant. See United States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010) (“A sentencing 

judge needs to understand the Commission’s recommendations, which reflect (among other 

things) the goal of avoiding unwarranted disparities in how different judges treat equivalent 

offenses and offenders.”). And it is within the government’s discretion to decide which charges 
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to bring. See, e.g., United States v. Smith, 502 F.3d 680, 690 (7th Cir. 2007) (“Prosecutors 

always have discretion to decide which charges to bring, and this discretion extends to charges 

that carry enhanced statutory maximum penalties.”). 

For these reasons, this Court finds no fault in the decision not to seek a downward 

departure based on sentencing disparities between McKenzie’s violation of 21 U.S.C. § 846 and 

violations of the Hobbs Act. There was no good-faith reason to do so. McKenzie’s counsel did 

seek, albeit unsuccessfully, a downward departure based on the disparity between McKenzie’s 

sentence and that received by the scheme’s ringleader. And McKenzie’s counsel successfully 

argued that McKenzie’s criminal history score overrepresented his actual criminal history. 

McKenzie’s counsel also successfully argued that McKenzie should receive credit for acceptance 

of responsibility even though McKenzie had obstructed justice. McKenzie benefited from these 

arguments, which resulted in a tremendous reduction—from 262-327 months to 168-210 

months—in the Guidelines range for his violation of 21 U.S.C. § 846. McKenzie’s counsel also 

presented several §3553(a) factors to this Court that led to a downward variance to 140 months 

imprisonment from the already significantly reduced Guidelines range. This significant reduction 

establishes the adequacy of counsel’s performance. Moreover, McKenzie has not shown how his 

conduct is similar to conduct in other cases involving similar offenses yet lesser sentences. See 

Brown, 732 F.3d at 789. Consequently, McKenzie has not shown that he suffered any prejudice 

because of the decision not to seek a downward departure based on sentencing disparities.

C. This Court Will Not Issue a Certificate of Appealability Because McKenzie 

Has Not Presented a Substantial Showing of the Denial of a Constitutional 

Right

A petitioner cannot appeal a denial of a petition under 28 U.S.C. § 2255 unless a court 

issues a certificate of appealability. 28 U.S.C. § 2253(c); see also Buie v. McAdory, 322 F.3d 

980, 981 (7th Cir. 2003). This requirement conserves judicial resources and protects appellate 
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courts from the burden of unmeritorious petitions under § 2255. See Young v. United States, 124 

F.3d 794, 799 (7th Cir. 1997). Courts may grant a certificate of appealability when a petitioner 

presents “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); 

see also Gonzalez v. Thaler, 132 S.Ct. 641, 649 n.5 (2012). A substantial showing of the denial 

of a constitutional right requires the petitioner to show that reasonable jurists could find room to 

debate whether the petition should have been resolved in a different manner or that the issues 

presented are adequate to entitle the petitioner to proceed with his claims. See Slack v. McDaniel, 

529 U.S. 473, 475 (2000). 

Because this Court denied McKenzie’s ineffective assistance of counsel claims on the 

merits, he must show that reasonable jurists would find this Court’s assessment of his 

constitutional claims either debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 338 

(2003) (quoting Slack, 529 U.S. at 484). McKenzie has made no such showing here and this 

Court finds that reasonable jurists could not find room to debate its ruling on the merits of 

McKenzie’s claims. McKenzie has not shown that his counsel’s performance was deficient or 

that he suffered any prejudice because of his counsel’s performance. Therefore, McKenzie has 

not shown that a certificate of appealability is warranted.

CONCLUSION

For the reasons stated herein, this Court denies McKenzie’s motion to vacate, set aside, 

or correct his sentence.

________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: February 24, 2014