represented defendant both when he entered his guilty plea and during his appeal. See Velarde v.
United States, 972 F.2d 826, 827 (7" Cir. 1992). Under Strickland v. Washington, 466 U.S. 668,
688, 690, 692 (1984), defendant bears the burden of showing that his attorney’s conduct (1) “fell
below an objective standard of reasonableness” and “outside the wide range of professionally

oo

competent assistance” and (2) that because of this ineffective assistance, his defense was actually
prejudiced. Counsel is presumed effective, and defendant’s burden is a heavy one. Barker v.
United States, 7 F.3d 629, 633 (7" Cir. 1993), cert. denied, 510 U.S. 1099 (1994),

Defendant asserts that defense counsel failed to gather evidence, interview favorable
witnesses, and present their testimony at the sentencing hearing to effectively challenge the
government’s calculation of the amount of narcotics for which defendant should be held
responsible. Defendant identifies these witnesses merely as “police officers, conspirators, and
others,” and states that they could have established that he was not involved in the distribution of
1.5 kilograms of cocaine. “Usually, counsel’s decision not to call a witness is a tactical choice not
subject to review.” Barnhill v. Flannigan, 42 F.3d 1074, 1078 (7" Cir. 1994). Defendant’s
general conclusion as to these unidentified witnesses’ potential testimony, without more, is
speculative, and fails to support a finding of ineffective assistance.! See United States v.
Muehlbauer, 892 F.2d 664, 669 (7" Cir. 1990).

In addition, defense counsel contested the quantity of narcotics for which defendant should

be held responsible. The plea agreement itself notes that defendant disputed the amount of

narcotics for which the government was seeking to hold him responsible, In the sentencing

' Defendant also complains of counsel’s decision not to present certain legal research to
the court; similarly, this decision is a matter of strategy.

4


Jn Apprendi, the United States Supreme Court held that any fact, other than a prior
conviction, which increases the penalty for a crime beyond the maximum statutory penalty
authorized by the legislature must be submitted to the jury. Apprendi, 530 U.S. at 490. Thus, a
defendant may not be subjected to an enhanced sentence based on the quantity of narcotics
involved if that quantity has not been charged in the indictment and proven beyond a reasonable
doubt. United States v. Robinson, 250 F.3d 527, 529 (7" Cir. 2001). Conversely, Apprendi is
irrelevant in cases in which a defendant’s sentence does not exceed the maximum sentence
authorized by the statute without the challenged enhancement. Id.

Here, the indictment charges defendant with racketeering involving the distribution of 17.3
grams of crack cocaine, and defendant admitted distributing at least that amount. Even without an
enhancement for relevant conduct, the distribution of 17.3 grams of crack cocaine would make
defendant eligible for a maximum sentence of forty years. See U.S.S.G. § 2E1.1; 21 U.S.C. §
841(b)(1)(B); 21 U.S.C. § 846. Defendant received a sentence of fourteen years imprisonment,
well within the statutorily prescribed maximum sentence without the enhancement — within even
the statutorily prescribed maximum sentence of twenty years for the very lowest level of cocaine
distribution. See 21 U.S.C. § 841(b)(1)(C). Accordingly, Apprendi is inapplicable to this case,
and we need not reach the issue of whether Apprendi applies to cases on collateral review.

Despite defendant’s statement at the sentencing hearing that he was in no way dissatisfied
with his counsel’s service or representation, defendant next argues that his sentence should be
vacated because he was denied effective assistance of counsel, As a preliminary matter, we note
that it is appropriate for the defendant to have raised the issue of ineffective assistance of counsel

for the first time in this collateral attack, especially given the fact that the same attorney


hearing, defense counsel argued that the Probation Office’s Presentence Investigation Report
(“PSR”) incorrectly attributed more than 1.5 kilograms of cocaine to him, and requested this court
not to impose the sentence recommended in the PSR. Although this court rejected defense
counsel’s arguments, counsel’s efforts belie a finding of ineffective assistance.

Moreover, the facts outlined in the plea agreement defeat any argument of prejudice. The
plea agreement states that defendant solicited and received payoffs from various drug
organizations in the Ford Heights area from approximately 1991 to 1996. In exchange, defendant
arranged for drug dealers the opportunity to sell large quantities of drugs without police
interference. Apparently, the purpose of the evidence defendant alleges his attorney should have
secured and presented was to somehow show that he was not involved in narcotics distribution.
Since the facts contained in the plea agreement establish defendant’s involvement with drug
organizations sufficient to hold him accountable for their actions, defendant is not prejudiced by
his attorney’s failure to investigate or present evidence on the issue of defendant’s personal
involvement in narcotics distribution.

Defendant next asserts that defense counsel failed to negotiate an adequate plea agreement.
Defendant states that counsel hired shortly before the entry of the plea agreement merely
substituted his name for that of the previous attorney, without renegotiating or changing the terms
of the agreement. Defendant fails, however, to establish how this action (or inaction) constitutes
error. Even if defendant had established some deficiency in his attorney’s conduct, he still has

failed to show how he was prejudiced. Defendant entered his guilty plea despite his knowledge


Minute Order Form (06197

St

United States District Court, Northern District of Illinois

Ni f Assigned Jud; i Sitting Judge if Other
rf swine Judge George W. Lindberg than Asigned Judge
CASE NUMBER 00 C 6582 DATE 6/28/2001
CASE United States of America vs. Keith Jones
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

(e3) oO Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) Qo Answer brief to motion due___. Reply to answer brief due.

(4) a Ruling/Hearing on___ set for at

(5) o Status hearing{held/continued to] [set for/re-set for] on setfor_ at.

(6) ao Pretrial conference[held/continued to] [set for/re-set for] on set for at.

(7) im) Trial[set for/re-set for] on at

(8) o [Bench/Jury trial] [Hearing] held/continued to__at

(9) i) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CO General Rule 21 CFRCP41(a)(1) OO FRCP41(a)(2).

ao i [Other docket entry] Defendant’s request for appointment of counsel and motion to vacate, set

aside, and correct sentence are denied. Enter memorandum opinion and order.

(1)

{For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices requit
jotices required. number of notices

Document
Number

Notices mailed by judge’s staff.

JUN 29 200

Notified counsel by telephone. idate docketed

Docketing to mail notices.

Mail AO 450 form.

mv

w

Copy to judge/magistrate judge

date maited notice

courtroom ey que ee Pale
deputy’s UL Sui
initials

SLB

Date/time received in
central Clerk's Office

railing deputy



that the government was seeking to hold him responsible for 1.5 kilograms of cocaine.’ Defense
counsel’s failure to negotiate a different plea agreement does not constitute ineffective assistance
of counsel.

A Section 2255 petition may be dismissed summarily if “the record conclusively

demonstrates that the petitioner is not entitled to relief.” Barker, 7 F.3d at 633 n.3. Under the

record made in this case, no evidentiary hearing is necessary to determine that defendant is not
entitled to relief. Further, the appointment of counsel is unnecessary, given that no evidentiary
hearing will be held. Accordingly, the court denies defendant’s request for the appointment of
counsel, and denies defendant’s motion to vacate, set aside, and correct sentence.
ORDERED: Defendant’s request for the appointment of counsel, and his motion to

vacate, set aside, and correct sentence are denied.

ENTER:

DATED: JUN 29 2nn1

> In his reply brief, defendant now claims that counsel coerced him into pleading guilty
by promising him that if he was held responsible for the greater amount of narcotics, the sentence
would be overturned on appeal. This self-serving statement is insufficient to satisfy Strickland’s
prejudice requirement, : _ .


IN THE UNITED STATES DISTRICT COURT DOCKETED
FOR THE NORTHERN DISTRICT OF ILLINOIS JUN 2 9 2001
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
00 C 6582
Vv.
Judge George W. Lindberg
KEITH JONES,

eee eer

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant Keith Jones pled guilty in June 1998 to racketeering in violation of 18 U.S.C.
§ 1962(c). On January 29, 1999, this court sentenced defendant to 168 months’ imprisonment,
three years’ supervised release, a $10,000 fine, and a $50 special assessment. Defendant
appealed his sentence, which was affirmed on April 19, 2000. See United States v. Jones, 209
F.3d 991 (7" Cir. 2000). Defendant has filed this motion to vacate, set aside, and correct
sentence pursuant to 28 U.S.C. § 2255, claiming (1) that his sentence was imposed in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000), and (2) ineffective assistance of counsel. He also
requests the appointment of counsel. For the reasons stated below, defendant’s motion and his
request for appointed counsel are denied.

Defendant was charged in a seven-count indictment with narcotics violations, extortion,
and racketeering based on crimes he was alleged to have committed while he was employed as a
police officer with the Ford Heights, Illinois, Police Department. Defendant pled guilty to one
count of racketeering, for conspiring with others to possess 17.3 grams of crack cocaine with the

intent to distribute it. In the plea agreement, defendant admitted that he had sold approximately


17.3 grams of crack cocaine in January 1995. He further admitted to accepting payoffs from drug
organizations in exchange for allowing their drug distribution operations to continue without
police interference. Finally, he admitted to agreeing to fix court cases in the 1990s. The plea
agreement states that defendant’s base offense level was 38 because he was accountable for at
least 1.5 kilograms of cocaine distributed by the drug organizations defendant assisted. The
agreement noted that defendant disputed this calculation. Following defendant’s guilty plea, the
United States Probation Office submitted a report to the court concurring that defendant should
be held accountable for more than 1.5 kilograms of crack cocaine.

During the sentencing hearing, defense counsel acknowledged that defendant was
responsible for all reasonably foreseeable quantities of narcotics within the scope of the criminal
activity that defendant jointly undertook, but argued that defendant nevertheless should be held
accountable for a far lesser amount of narcotics than 1.5 kilograms. This court rejected that
argument, concluding that defendant should be held accountable for at least 1.5 kilograms of
crack cocaine, which made him eligible for a sentence of ten years to life imprisonment. This
court sentenced defendant to fourteen years in prison.

Defendant first asserts that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), basing
his sentence on his accountability for 1.5 kilograms of cocaine when only 17.3 grams were
specifically charged in the indictment violated his Fifth, Sixth, and Fourteenth Amendment
rights. The government argues that Apprendi does not apply to cases on collateral review, and
contends that even if Apprendi were applicable, the sentence nevertheless would be valid
because the penalty imposed did not exceed the maximum penalty statutorily prescribed for the

amount of narcotics alleged in the indictment.