676 F.3d 621
7th Cir.2012Background
- Fleming convicted by jury on multiple drug and firearms counts, including possession with intent to distribute over 50 grams of crack (Count 1) and sentenced to life, later found to be enhanced improperly due to late § 851 notice.
- Government admitted the notice of sentence enhancement was filed three days late, triggering a district court review and resentencing.
- District court resentenced Fleming to 480 months after excluding the mandatory life term and addressing other § 2255 issues; aggregation of drug quantities for Count 1 was upheld.
- On appeal, Fleming challenges aggregation of quantities for Count 1 and argues about the proper scope of his resentencing; he seeks a CA as to the aggregation ruling.
- Court held Fleming lacks CA for the § 2255 denial and affirmed the revised sentence, including the aggregation ruling, as not clearly erroneous.
- The district court’s drug-quantity calculation relied on Lucas’s testimony and trial evidence; court extrapolated weekly quantities to the year prior to arrest; Fleming contests this extrapolation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fleming needed a certificate of appealability for the aggregation issue | Fleming seeks CA on § 2255 denial regarding aggregation | Fleming argues aggregation error affected constitutional rights | CA required for collateral-relief issues; not granted; no appeal on aggregation without CA |
| Whether aggregation of drug quantities for Count 1 was proper | Aggregation permitted under Seventh Circuit precedent; exceeds 50g via multiple buys | Aggregation should not be used to reach 50g where no single buy hits threshold | Aggregation upheld; district court’s method reasonable under §1B1.3 and case law |
| Whether district court properly resentenced after late § 851 notice | Resentencing appropriate; life sentence set aside due to late notice | Procedural irregularity did not undermine overall sentence validity | Re-sentencing affirmed; no error in addressing late notice and related issues; 480-month total remains valid |
Key Cases Cited
- Sandlin v. United States, 291 F.3d 875 (6th Cir.2002) (aggregation allowed under similar circumstances in some circuits)
- Easter v. United States, 553 F.3d 519 (7th Cir.2009) (aggregation principles for drug quantities acknowledged by Seventh Circuit)
- Strickland v. Washington, 466 U.S. 668 (Supreme Court 1984) (standard for ineffective assistance of counsel analysis)
- Fountain v. United States, 211 F.3d 429 (7th Cir.2000) (procedural default and collateral relief standards)
- United States v. Johnson, 643 F.3d 545 (7th Cir.2011) (unOfficial Note on evidence for uncharged conduct given by preponderance of the evidence)