UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

SCHUYLER STANTON, 

Petitioner, 

 v. 

UNITED STATES OF AMERICA, 

Respondent. 

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Cause No. 3:16-cv-747 RLM

(Arising out of 3:15-cr-50 RLM)

OPINION AND ORDER 

Schuyler Stanton asks that the court vacate or correct his sentence after 

the parties discovered a factual error in his pre-sentence report that resulted in 

an incorrect calculation of his guideline sentence range. The government doesn’t 

oppose Mr. Stanton’s motion and the court grants it. 

I. BACKGROUND

Mr. Stanton pleaded guilty to one count of possessing with intent to 

distribute cocaine. 21 U.S.C. § 841(a)(1). The pre-sentence investigation report 

explained that law enforcement seized 757.47 kilograms of marijuana from the 

residence from which Mr. Stanton sold drugs. This amount of marijuana moved 

Mr. Stanton to a base offense level of 28. U.S.S.G. § 2D1.1(c)(6). After a two-level 

increase for possession of firearms, § 2D1.1(b)(1), and a three-level of reduction 

for acceptance of responsibility, § 3E1.1, Mr. Stanton’s offense level was 27. With 

his criminal history, the Guidelines recommended a sentence between 63 and 

78 months imprisonment. Both parties recommended a sentence of 60 months 
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and the court sentenced Mr. Stanton to 60 months followed by three years 

supervised release. 

Mr. Stanton’s then-girlfriend and co-defendant was sentenced for the same 

crime in a separate proceeding. In preparing for that sentencing, the government 

realized that there had been a mistake in Mr. Stanton’s pre-sentence 

investigation report. The amount of marijuana seized was actually 190 

kilograms, not 757.47 kilograms. If corrected in time for Mr. Stanton’s 

sentencing, his base offense level would have been four levels lower. By the time 

the error was discovered, the deadline for Mr. Stanton to appeal had passed. 

The government then moved to correct Mr. Stanton’s sentence pursuant 

to Rule 35. The court denied its motion because Rule 35 allows the court to 

correct a sentence that resulted from clear error only within 14 days of 

sentencing, which had already elapsed. Fed. R. Crim. P. 35(a). Rule 36 also didn’t 

provide Mr. Stanton with a remedy, because his sentence was based on a clerical 

error contained in the PSR, not the sentence itself. The only way for Mr. Stanton 

to have his sentence corrected would be through collateral attack. Mr. Stanton 

filed a motion to vacate or correct his sentence pursuant to 28 U.S.C. § 2255. 

II. DISCUSSION

One convicted of a federal crime can challenge his sentence on grounds 

that the sentence violates the Constitution or laws of the United States, was 

imposed without jurisdiction, exceeds the statutory maximum, or is otherwise 

subject to collateral attack. 28 U.S.C. § 2255(a). An evidentiary hearing isn’t 
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required if “the motion and files and records of the case conclusively show that 

the petitioner is entitled to no relief.” 28 U.S.C. § 2255(b). After reviewing Mr. 

Stanton’s petition and the record of this case, the court concludes that the 

factual and legal issues raised can be resolved on the record in Mr. Stanton’s 

favor, so a hearing is unnecessary. See Menzer v. United States, 200 F.3d 1000, 

1006 (7th Cir. 2000). 

Generally, issues not argued and decided on direct appeal can’t be raised 

in a § 2255 petition unless the petitioner can show good cause and actual 

prejudice for the procedural default. United States v. Frady, 456 U.S. 152, 167 

(1982); Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002). But the 

government supports Mr. Stanton’s petition and doesn’t raise this defense, so 

it’s waived. United States v. Rezin, 322 F.3d 443, 446 (7th Cir. 2003). 

Mr. Stanton’s § 2255 petition can move forward based on the discovery of 

a fact counter to that on which the court relied in sentencing him: the amount 

of drugs seized. 28 U.S.C. § 2255(f)(4). Generally, a fact-based challenge to a 

sentence requires that it be filed within a year of when the facts “supporting the 

claim . . . presented could have been discovered through the exercise of due 

diligence.” Id. Limitations periods are affirmative defenses. To the extent this or 

any other limitations period could apply to Mr. Stanton’s claim, the government 

waived them when it decided to support Mr. Stanton’s motion. See Day v. 

McDonough, 547 U.S. 198 (2006); Grigsby v. Cotton, 456 F.3d 727, 731 (7th Cir. 

2006). 
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“[N]ot every error is corrigible in a postconviction proceeding, even if the 

error was not harmless.” Hawkins v. United States, 706 F.3d 820, 823 (7th Cir. 

2013). For this reason, mistakes in guideline interpretation are not typically 

correctable on collateral review. Id. An example is if “the probation service in 

recommending a sentence to a district judge makes a mistake in applying the 

(advisory) guideline that the judge doesn’t catch.” Id. But this isn’t an example 

of the probation service feeding an incorrect guideline to the judge based on facts 

that are correct. It’s an example of the probation service inadvertently feeding an 

incorrect fact to counsel and the judge, which resulted in an improper guideline. 

The court sentenced Mr. Stanton based on misinformation of how much 

marijuana had been seized, not because the probation service or lawyers 

misconstrued the guideline that would have applied had that quantity been 

correct the first time. The situation is analogous to a guideline enhancement 

imposed based on the “fact” of a prior conviction that is vacated after final 

judgment. See Johnson v. United States, 544 U.S. 295 (2005). These errors can 

and should be corrected through § 2255. 

Mr. Stanton argued this motion without counsel and so the court 

construes it liberally. See Ray v. Clements, 700 F.3d 993, 1002 (7th Cir. 2012). 

Even though Mr. Stanton argued his case as one of miscarriage of justice or, 

alternatively, ineffective assistance of counsel, the discovery of a fact provides a 

clearer avenue for relief. The court will take that route instead. 
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III. CONCLUSION

Based on the foregoing, the court: 

(1) GRANTS Mr. Stanton’s motion to vacate or correct his sentence [Doc. 

No. 29]; 

(2) DIRECTS the Clerk to vacate Mr. Stanton’s sentencing [Doc. Nos. 22, 

23], with resentencing to be scheduled by future order; 

(3) APPOINTS the Federal Community Defenders to represent Mr. Stanton 

in his resentencing, 18 U.S.C. § 3006A(a); 

(4) DIRECTS the Probation Department to prepare a revised pre-sentence 

investigation report; and 

(5) DENIES as moot Mr. Stanton’s motion requesting counsel for the 

motion to vacate [Doc. No. 33]. 

SO ORDERED. 

ENTERED: March 30, 2017 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court 

Cc: Schuyler Stanton