Cureton v. United States

MEMORANDUM AND ORDER

DAVID W. DUGAN United States District Judge.

This matter comes before the Court on Petitioner Thomas Cureton's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc 37; Doc. 1). Petitioner challenges his 444-month sentence imposed in two criminal cases which were consolidated for trial and sentencing. United States v. Cureton, SDIL Case No. 10-30106-DRH-1 (hereinafter referred to as the “Drug Case” or “Case 106”); United States v. Cureton, SDIL Case No. 10-30200-DRH-1 (hereinafter referred to as the “Ransom Case” or “Case 200”). Following multiple appeals, the Seventh Circuit Court of Appeals affirmed Petitioner's 444-month sentence on April 10, 2018. United States v. Cureton, 887 F.3d 318, 319 (7th Cir. 2018). For the following reasons, the Motion will be denied.

Factual and Procedural Background

On November 17, 2010, a federal grand jury returned a superseding indictment charging Petitioner with five drug and weapon charges, including: four counts of distributing crack cocaine near a school in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and

860 (Counts 2-5) and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 1) (Case 106, Doc. 42).

Also on November 17, 2010, a federal grand jury returned a separate indictment charging Petitioner with one count of interstate communication with intent to extort in violation of 18 U.S.C. § 875(a) (Case 200, Doc. 1). On April 20, 2011, a superseding indictment was returned charging Petitioner with four charges: one count of interstate communication of ransom request in violation of 18 U.S.C. § 2 and 875(a) (Count 1), two counts of possession of a firearm in furtherance of a crime of violations in violation of 18 U.S.C. § 2 and 924(c) (Counts 2 and 4), and one count of attempted extortion in violation of 18 U.S.C. § 2 and 1951(a) (Count 3) (Case 200, Doc. 31).

Attorney, John D. Stobbs, II represented Cureton at trial in both cases. Initially, the two cases proceeded separately, with the Ransom Case proceeding before Judge Murphy and the Drug Case before Judge Stiehl. However, after the grand jury returned Cureton's superseding indictment in the Ransom Case adding the two firearm charges, Attorney Stobbs sought to consolidate the two cases for trial (Case 200, Doc. 37). According to Attorney Stobbs, the new 18 U.S.C. § 924(c) charges each carried mandatory consecutive sentences, which Stobbs believed significantly increased Petitioner's risk in the Ransom Case (Doc. 11-4, at ¶¶ 24, 31-36). In his motion, Stobbs also described the significant overlap of facts and witnesses between the cases, the government's intention to introduce 404(b) material against Cureton, and judicial economy (Case 200, Doc. 37).

Judge Murphy initially denied the motion on May 2, 2011 (Case 200, Doc. 45). However, on May 5, 2011, the Drug Case was transferred from Judge Stiehl to Judge

Murphy (Case 106, Doc. 97), so Stobbs moved to reconsider the denial of the motion for consolidation, again citing the overlap between the cases, in addition to new scheduling issues (Case 200, Doc. 46). On May 9, 2011, Judge Murphy granted the motion for reconsideration and consolidated the two cases for trial (Case 200, Doc. 50).

On August 18, 2011, following a four-day jury trial, Petitioner was found guilty on Counts 1-4 of the Drug Case, not guilty on Count 5 of the Drug Case (the fourth drug distribution count), and guilty on Counts 1-4 of the Ransom Case (Doc. 11-11; Doc. 1112). Sentencing for both cases was held on January 30, 2012, before Judge Murphy (Case 200, Doc. 102). Judge Murphy sentenced Cureton to a total sentence of 744 months (Case 200, Doc. 102). In the Drug Case, Cureton was sentenced to 120 months on Count 1 (felon in possession), and 360 months on Counts 2-4 (distribution of cocaine base, to run concurrently, for a total sentence in the Drug Case of 360 months (Case 200, Doc. 102). In the Ransom Case, Cureton was sentenced to 240 months on Counts 1 and 3 (ransom and attempted extortion), to run concurrently (Case 200, Doc. 102), 84 months on the first § 924(c) conviction (Count 2) and 300 months on the second § 924(c) conviction (Count 4), with both § 924(c) sentences running consecutive to all other sentences, for a total sentence of 384 months in the Ransom Case (Case 200, Doc. 102).

The Government submitted the following table for illustration purposes, which summarizes Cureton's first sentence:

Case	Count	Description	Sentence
10-30160	1	Felon in Possession	120 months (concurrent)
10-30160	2-4	Distribution of Cocaine Base	360 months (concurrent)
10-30200	1	Interstate Comm. of Ransom	240 months (concurrent)
10-30200	2	Poss. of Firearm/Crime of Violence	84 months (consecutive)
10-30200	3	Attempted Extortion	240 months (concurrent)
10-30200	4	Poss. of Firearm/Crime of Violence	300 months (consecutive)
360+84+300= 744 months

(Doc. 11, p. 11).

In explaining the severity of Cureton's sentence, Judge Murphy made the following comments concerning Cureton's capacity for violence and extreme depravity:

The victim in this case is set on a bucket with her wrists and ankles tied by the defendant. She was beaten while she was seated, punched in the head and face, kneed in the ribs, kicked in the hip and, in addition, she was choked. This was done several times, He punched her off the bucket, kicked her in the side, leg and head....

I think Mr. Cureton is a dangerous man. I think that he is dangerous not just for the reason -- and we heard what the evidence was and what he did to this young woman -- but he was wrong. You were -- you were after the wrong person, and that makes you doubly dangerous. You were-you were willing to take this young woman to an inch of her life on the theory she had stolen your dope. And the Court heard all the evidence, and I don't think she stole your dope....

But to tie a young woman up and kick, beat her, and threaten to cut her, and to bring other people in to frighten her, and then to call her family, just a horrible, horrible, horrible experience for everyone involved, is -- is cold and vicious beyond description. I would have given you a life sentence if the statute authorized it irrespective of what the guidelines provided for in this case.

(Case 200, Doc. 118, at ¶ 29-37).

Cureton appealed his sentence on January 31, 2012 (Case 200, Doc. 106). Cureton challenged (1) the district court's admission of prior bad act evidence pursuant to Fed.R.Evid. 404(b), (2) the propriety of his two convictions under § 924(c), and (3) whether the district court's finding of brandishing at sentencing violated the precedent of Alleyne v. United States, 570 U.S. 99 (2013). See United States v. Cureton, 739 F.3d 1032, 1034-35 (7^th Cir. 2014). The Seventh Circuit found no error in admitting 404(b) evidence at trial and

held that the district court's brandishing finding was erroneous but did not violate Alleyne or result in a miscarriage of justice. Id. However, the Seventh Circuit ruled that the two § 924(c) charges against Cureton for a single course of conduct involving only one use of one firearm were multiplicitous. Id. at 1043-44. Thus, the Seventh Circuit vacated Cureton's sentence and remanded his case for resentencing. Id.

On July 16, 2014, Cureton appeared for his first resentencing before Judge Herndon (Case 200, Doc. 160). At sentencing, Cureton raised an objection that the Drug Case and Random Case were improperly consolidated for sentencing (Case 200, Doc. 172, p. 15). Judge Herndon overruled Cureton's objection, finding that the two cases were “rationally related” such that there was “no reason not to have them together”, and even if the sentencings were not consolidated, the sentencing court would consider all Cureton's conduct in forming a sentence (Case 200, Doc. 172, p. 17). Judge Herndon then sentenced Cureton to a total sentence of 444 months, eliminating the 300-month sentence on the second § 924(c) charge (Case 200, Doc. 160). Cureton's sentence otherwise remained the same as originally imposed.

The Government again submitted a table for illustration purposes, which summaries Cureton's second sentence:

Case	Count	Description	Sentence
10-30160	1	Felon in Possession	120 months (concurrent)
10-30160	2-4	Distribution of Cocaine Base	360 months (concurrent)
10-30200	1	Interstate Comm. of Ransom	240 months (concurrent)
10-30200	2	Poss. of Firearm/Crime of Violence	84 months (consecutive)
10-30200	3	Attempted Extortion	240 months (concurrent)
10-30200	4	Poss. of Firearm/Crime of Violence	300 months (consecutive)
360+84= 444 months

(Doc. 11, p. 13). At sentencing, Judge Herndon also commented on Cureton's dangerousness, finding he was “very dangerous” to the community (Case 200, Doc. 172, p. 37).

On July 17, 2014, Cureton appealed his sentence (Case 200, Doc. 164). He argued that the district court set conditions of supervised release without complying with United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). See United States v. Cureton, Nos. 14-2576 & 14-2586 (7th Cir. June 30, 2015). The Seventh Circuit agreed and vacated Cureton's sentence and remanded for resentencing. Id.

On October 1, 2015, while the case was on...