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Date: 03-11-2019
Case Style:
United States of America v. Ivan Bennett Willis
Case Number: 18-6188
Judge: Bpbbu Baldock
Court: United States Court of Appeals for the Tenth Circuit on appeal from the Western District of Oklahoma (Oklahoma County)
Plaintiff's Attorney: Rozia M McKinney-Foster
Defendant's Attorney: Jacquelyn L. Ford and Jack Dempsey Pointer
Description:
Following trial, a jury found Defendant Ivan Willis guilty of aggravated sexual
abuse in Indian Country in violation of 18 U.S.C. § 2241(a). The district court
sentenced Defendant to 151 months in prison, the low end of his guideline range.
We affirmed Defendant’s conviction on direct appeal. United States v. Willis, 826
F.3d 1265 (10th Cir. 2016). Defendant subsequently moved pursuant to 28 U.S.C.
§ 2255 to set aside his sentence based on ineffective assistance of trial counsel. The
district court denied Defendant relief, as well as his subsequent motion pursuant to
28 U.S.C. § 2253 for a Certificate of Appealability. Now before us is Defendant’s
In his motion, Defendant claims his counsel did not properly advise him of the
sentencing range that would apply if he had accepted the Government’s plea offer.
Defendant asserts that during plea negotiations the Government offered him a plea
agreement under which he would plead guilty to abusive sexual contact in violation
of 18 U.S.C. § 2244(a)(1) and face ten years in prison, as opposed to fifteen years
if convicted after trial of aggravated sexual abuse under § 2241(a).1 Defendant states
counsel advised him that if he rejected the Government’s plea offer and a consequent
ten-year sentence of imprisonment, he would receive a fifteen-year sentence if found
guilty following trial. Defendant says “[w]eighing a 5-year difference between
pleading guilty and taking his chances at standing trial, Defendant elected to proceed
to trial.”
Now Defendant says he just recently learned that had he accepted the
Government’s plea offer and pleaded guilty to a § 2244(a)(1) violation, his guideline
range would have been 6–12 months. In its order denying Defendant post-conviction
relief, however, the district court explained Defendant’s sentencing range calculation
1 Section 2241(a) provides “[w]hoever . . . knowingly causes another person
to engage in a sexual act . . . by using force against that other person . . . shall be
fined under this title, imprisoned for any term of years or life, or both.” Meanwhile,
§2244(a) provides “[w]hoever . . . knowingly engages in or causes sexual contact
with or by another person, if so to do would violate . . . subsection (a) or (b) of
section 2241 of this title had the sexual contact been a sexual act, shall be fined
under this title, imprisoned not more than ten years, or both.”
2
is incorrect because of the guideline’s relevant conduct provisions:
Defendant argues that if he had accepted the plea agreement there
would have been no evidence of force. Therefore, Defendant argues,
the plea agreement would have established a base offense level of 12
[instead of the base offense level 30 he received following trial].
* * *
Regardless of which statute is used, the forcible nature of Defendant’s
actions [as illustrated by the trial testimony] remains. Thus, even had
he pleaded to Abusive Sexual Contact, the fact that he committed the
act using force would remain. Thus, Defendant’s actions would have
involved conduct described in 18 U.S.C. § 2241(a). As a result, the
U.S.S.G. § 2A3.4(c)(1) cross reference would apply and Defendant’s
base offense level would be 30 [just as it was after trial] as set by
U.S.S.G. § 2A3.1. The plea agreement did not change the minimum
sentence Defendant would face. Rather, had he accepted the plea
agreement, his sentence would have been capped at 10 years by the
statutory maximum imposed by 18 U.S.C. § 2241(a)(1).
Clearly, Defendant suffered no prejudice from any failure on the part of
counsel to advise him of an erroneous 6–12 month guideline range in the event
Defendant accepted the Government’s plea offer. In fact, for counsel to so advise
Defendant would itself have been erroneous because Defendant’s guideline range
would not change regardless of whether he accepted the plea offer. Instead all that
would change from a plea agreement was that Defendant’s sentence would be capped
at the ten-year maximum and Defendant tells us he knew that before deciding to
reject the Government’s plea offer.
Outcome: Defendant has not made a showing of the denial of a constitutional right that
might be debatable among reasonable jurists. See Slack v. McDaniel, 529 U.S. 473,
483 (2000). Accordingly, Defendant’s motion for a COA is DENIED. Defendant’s
motion to proceed on appeal in forma pauperis is DENIED as moot.
Plaintiff's Experts:
Defendant's Experts:
Comments: