United States v. Graves, Curtis , 184 F. App'x 579 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2006*
Decided June 19, 2006
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-4564
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Southern District of Indiana,
v. Indianapolis Division.
CURTIS GRAVES, No. 02 CR 127
Defendant-Appellant.
David F. Hamilton,
Judge.
ORDER
After we affirmed Curtis Graves’s conviction on two counts of distributing 50
or more grams of crack cocaine, we remanded for resentencing pursuant to United
States v. Schlifer, 403 F.3d 849, 853-54 (7th Cir. 2005) (applying harmless error
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 05-4564 Page 2
standard where objection to Booker error was preserved at sentencing). United
States v. Graves, 418 F.3d 739 (7th Cir. 2005).
At the original sentencing hearing, based upon the quantity of drugs sold, the
district court found Graves’s base offense level under the Sentencing Guidelines to
be 34. The court then found Graves to be a career offender under U.S.S.G. § 4B1.1,
which raised his offense level to 37. The court also decided Graves’s criminal
history fit into Category VI. Based upon these determinations, the court calculated
Graves’s sentencing range to be 360 months to life and imposed a sentence of 360
months’ imprisonment on each count, to be served concurrently. We approved the
court’s application of the Guidelines in all respects but one: the court’s mistaken
belief that they were mandatory. Graves, 418 F.3d at 746.
On remand, the district court noted the Guidelines were advisory and
adopted the PSR recommendations, which resulted in the same Guidelines
calculation as the initial sentencing. The court again imposed two concurrent 360-
month prison sentences, a $1,500 fine, and 5 years’ supervised release. Graves does
not contest the court’s use of the Guidelines nor does he ask us to revisit any issues
we previously addressed.
Graves argues that when the court applied the factors delineated in 18
U.S.C. § 3553(a), it gave insufficient consideration to the likelihood of Graves’s
rehabilitation under § 3553(a)(1)(D). Based upon our review of the resentencing
record, the court conducted a thorough analysis of the § 3553(a) factors and spoke
repeatedly of its opinion that Graves’s prospects for rehabilitation were dim. The
court decided a sentence at the bottom of the Guidelines range was warranted but,
in light of other relevant considerations, not a sentence below the Guidelines range.
The district court’s calculation of the advisory Guidelines range was proper, and
there is nothing unreasonable about this sentence at the bottom of that range.
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
Next, Graves maintains he was entitled to some sort of “Palladino hearing”
where he could collaterally attack his conviction under 28 U.S.C. § 2255. The
district court noted correctly that Graves refers not to the Palladino plain-error
inquiry, but “to a different portion of the Palladino opinion which involved a similar
argument about ineffective assistance of counsel that was treated as mature on
direct appeal.” Graves now argues that the scope of his hearing on remand was too
narrow to accommodate his claim of ineffective trial counsel.
On remand, Graves was entitled to whatever benefits resentencing offered,
but it was too late for him to supplement the trial record and premature for him to
start down the habeas path. See 28 U.S.C. § 2255 (“A prisoner in custody under
sentence of a court . . . may move the court which imposed the sentence to vacate
No. 05-4564 Page 3
. . . the sentence.”); see also United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.
2005) (collecting authority) (noting that habeas corpus, rather than direct appeal, is
the preferred method to raise ineffective assistance of council issue because the trial
record at that point may be supplemented and because the rules of procedural
default were specially set aside by the Supreme Court).
Finally, Graves apparently claims that Booker entitled every defendant to
time off the Guideline sentence, so that Graves’s post-Booker sentence, which was
identical to his pre-Booker sentence, violates the ex post facto clause. Not true. See
United States v. Long, 425 F.3d 482, 487 (7th Cir. 2005) (citing United States v.
Booker, 540 U.S. 220, 258-65 (2005)) (noting that after Booker, judges may impose
longer sentences than the Guidelines would allow if they were mandatory so long as
the sentence is reasonable).
Graves’s sentence is summarily AFFIRMED.