Petition for Writ of Certiorari — Wade Bonk, Petitioner v. United States

22-665

i i

Ki

IN THE

Supreme Court, U.S.

FILED

SUPREME COURT OF THE UNITED STATES

JAN 17 2023

I- OFFiCE OF THE CLERK-

WADE RONK.

(Your Name)

— PETITIONER

vs.

UNITED STATES OF AMERICA

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Seventh Circuit of Appeals_____________________

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Wadp Ronk(Your Name)

Henry Hill Correctional Ccntcr(Address)

P.O. Box 1700

Galesburg. IL. 61402

(City, State, Zip Code)

Nf / A_____________

(Phone Number)

LIST OF PARTIES

[x] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

i

QUESTION(S) PRESENTED

Did the District Court err by refusing to apply the Seventh Circuit's

ruling in U.S. v. Carnell retroactively since Petitioner's conviction

was not finalized?

Did the District Court err by including two point Leadership role where

Petitioner never exercised any control or authority over anybody in the

conspiracy and the record does not support this enhancement?

ii

n

TABLE OF CONTENTS

1

OPINIONS BELOW

2

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

5

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

8

CONCLUSION

14

INDEX TO APPENDICES

APPENDIX A - Decision From the District Court Denying §2255

motion, Bonk v. United States, 2022 U.S. Dist.

LEXIS 24862 ............................................................... .......... la

APPENDIX B - United States of Appeal, Seventh Circuit Order

Denying Certificate of Appealability.................... 6a

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

iii

'

TABLE OF AUTHORITIES CITED

Cases

Page

U.S. v. Carnell, 972 F.3d 932 (7th Cir. 2020)..

8,9

U.S. v. Bonk, 967 F.3d 643 (7th Cir. 2020)........

9

Gonzales v. Thaler, 132 S.Ct. 641 (2012)............

10

Schiori v. Summerlin, 542 U.S. 348 (2004)..........

10

Griffith v. Kentucky, 107 S.Ct. 708 (1987)........

10

U.S v. Booker, 543 U.S. 220 (2005)........................

11

U.S. v. McGee, 985 F.3d 559 (7th Cir..2021)....

11

122 F.3d 399 (7th Cir. 1997)

12

U.S. v. Figueroa, 682 F.3d 694 (7th Cir. 2012).

12

U,S. v. Weaver, 716 F.3d 439 (7th Cir. 2013)...

12

Strickland v. Washington, 466 U.S. 668 (1984)..

.12

Molina-Martinez v. U.S., 136 S.Ct. 1338 (2016).

13

U.S. v Mankiewicz

Statutes

U.S. Const., amend VI

3,12

U.S. Const., amend XIV..........................

3,12

28 U.S.C. § 2255......................................

3,7.9

21 U.S.C. §§ 841(a)(1) and (b)(1)(A)

5

USSG § 3B1.1

11,12

iv

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment, below.

OPINIONS BELOW

[x] For cases from federal courts:

to

The opinion of the United States court of appeals appears at Appendix _R

the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the United States district court appears at Appendix _A

the petition and is

[X] reported at Bonk v.. ii-S., 9077 n..q DIST. TEXTS 24862; or,

[ ] has. been designated for publication but is not yet reported; or,

[ ] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at.

Appendix _____ to the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the_

appears at Appendix

court

to the petition and is

; or, .

[ ] reported at____

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

to

JURISDICTION

[53 For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was October 3U;—20-2-2---[y] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: --------------------------------- - > and a copy of the '

order denying rehearing appears at Appendix----------[ ] An extension of time to file the petition for a writ of certiorari was granted

(date)

(date) on

to and including --------in Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ 1 For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix----------[ ] A timely petition for rehearing was thereafter denied on the following elate:

_________________ and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date) in

(date) on

to and including

A

implication No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2

CONSTITUT^^AL AND STATUTORY PROVISIO

ft

INVOLVED

The following statutory and constitutional provisions are involved

in this case.

U.S. CONST., AMEND VI

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense.

U.S. CONST., AMEND. XIV.

Section 1

All persons born or naturalized in the United States, and

subiect to the iurisdiction thereof, are citizens of the United States

and of the State wherein they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty,

or property, without due process of lav;; nor deny to any person within

its jurisdiction the equal protections of the laws.

28 U.S.C. § 2255

(a) A prisoner in custody under sentence of a court established by Act of

Congress claiming the right to be released upon the ground that the

sentence was imposed in violation of the Constitution or laws of the

United States, or that the court was without jurisdiction to impose such

sentence was in excess of the maximum authorized by law, or is otherwise

subject to collateral attack, may move the court which imposed the

3

sentecne to vacate, set aside, or correct the sentCCTice .

(b) Unless the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief, the court shall cause

notice thereof to be served upon the United States attorney, grant a

prompt hearing thereon, determine the issues and make finding of fact and

conclusions of law with respect thereto. If the court finds that the

iudgment was rendered without jurisdiction, or that the sentence imposed

was not authorized by law or otherwise open to collateral attack, or

that there has been such a denial or infringement of the constitutional

rights of the prisoner as to render the iudgment vulnerable to collateral

attack, the court shall vacate and set the iudgment aside and shall

discharge the prisoner or resentence him or grant a new trial or correct

the sentence as may appear appropriate.

(c) A court may entertain and determine such motion without requiring the

production of the prisoner at the hearing.

(d) An appeal may be taken to the court of appeals from the order entered

on the motion as from a final iudgment on application for a writ of

habeas corpus .

(e) An application for a writ of habeas corpus in behalf of a prisoner

who is authorized to apply for relief by motion pursuant to this section,

shall not be entertained if it appears that the application has failed to

apply for relief, by motion, to the court which sentenced him

or that

such court has denied him relief, unless it also appears that the remedy

by motion is adequate or ineffective to test the legality of his detention.

4

STATEMENT OF THE CASE

Petitioner Wade Bonk was charged by superseding indictment with

conspiracy to distribute and possess with intent to distribute at least

50 grams of methamphetamine in violation of 21 U.S.C.§§ 841(a)(1) and

(b)(1)(A). The charges alleged that Mr. Bonk along with Darcy Kampas and

•

Timothy Wood, were part of a conspiracy to distribute a substantial

amount of methamphetamine in the Central Illinois area. The conspiracy

ended on September 15, 2017, when Kampas was pulled over for speeding

and methamphetamine was subsequently found in her car. The government

claimed Mr. Bonk distributed 1.5 kilograms of ice methamphetamine.

In July of 2018, Mr. Bonk pled guilty without a written plea

agreement. After resolving obiections in earlier versions, the United

States Probation Office prepared a third revised Presentence Investigation

Report (PSR) prior to the sentencing hearing. The PSR claimed Mr. Bonk

purchased methamphetamine from a guy named "Coupland" in Galesburg, IL.

with Lewis Lowrey, all of which was of poor quality, [d/e 127, 117]

Then

they bought methamphetamine from some "man" in Monmouth, IL., but they

went back and "beat the man" because it was poor quality. They discovered

the man's source was Coupland so they went back to Coupland to purchase

poor quality methamphetamine. None of this methamphetamine was tested and

they calculated it to total 453.6 grams, yet they calculated it as "ICE"

quality, being over 80% purity.

After Mr. Bonk had a falling out with Lewis Lowrey, he had co­

defendant, Timothy Wood drive him seven times to purchase methamphetamine.

Each purchase was through Coupland or different dealers as Mr. Bonk

searched for a better supply of drugs. None of the methamphetamine was

tested and it totaled 805.45 grams. The PSR doesn't allege it was ICE

quality (over 80% pure) but it was calculated as ICE [d/e doc 127

5

11 10] .

m

The PSR sthtes that three trips with Wallace McCrear

to purchase

niethamphetamine in Clinton, Iowa, a different source than previous deals.

None of it was tested and totaled 170.1 grams, yet it was calculated as

ICE quality.

After Mr. Bonk was arrested in an unrelated State charges, his

co defendants in this case, Darcy Kampas and Timothy Wood tried to

purcahse four ounces of methamphefamine. None of their regular sources

had any, so they purchased one ounce from a new source

and then another

three ounces from a different new source. As Kampas and Wood returned to

Pekin, IL. they were pulled over and officers found several packages of

methamphetamine that totaled 111 grams, with 25.3 grams had a purity of

98% and 83.2 grams had a purity of 84%. [d/e doc. 127

1:1119-20]. There

is no doubt that the 111 grams of methamphetamine that was confiscated

and tested is ICE quality.

The PSR calculated all of the methamphetamine attributed to Mr.

Bonk as ICE quality with a base offense level calculated as 36. Along

with a two-point enhancement for his role in the offense, his adjusted

base offense level was 38. The PSR also found that Mr. Bonk was a career

offender under USSG §4B1.1, but because the career offender base offense

level was lower (37), the higher adjusted offense level applied. After a

three point reduction for acceptance of responsibility, his total level

was 35. Combined with his criminal history score of VI, his sentencing

guidelines range was 292 to 365 months' imprisonment.

However, prior to Mr. Bonk's conviction being finalized, the Seventh

Circuit decided U.S. v. Carnell. 972 F.3d 932 (7th Cir. 2020), which

held the government failed to meet its burden of establishing that the

drugs at issue were "at least 80% pure methamphetamine because proof

consisted predominantly of circumstantial evidence by users, dealers,

6

and law enforcement that the drugs appears to be

m

j based on look,

smell, and nomenclature. Further, this Court held dealers and users

cannot detect the difference between 65%

797o, and 80% purity of

methamphetamine".

Hr. Bonk filed his §2255 motion claiming the District Court erred

in calculating all of the methamphetamine attributed to him as ICE

quality (being over 80% pure), along with the incorrect sentencing

guidelines that included the two points for his role in the offense. The

District Court denied the motion and the certificate of appealibility.

Hr. Bonk filed a notice of appeal and asked the Seventh Circuit to allow

him to 'appeal, which the Seventh Circuit denied on October 31, 2022.

This writ follows.

7

R^^)NS FOR GRANTING THE PETI

m

I. THE DISTRICT COURT FAILED TO APPLY THE SEVENTH CIRCUIT'S RULING

IN U.S. v. CARNELL, 972 F.3d 932 (7th CIr. 2020), RETROACTIVELY TO

PETITIONER'S CASE SINCE HIS CONVICTION WAS NOT FINALIZED WHEN CARNELL

WAS DECIDED AND THE SENTENCING GUIDELINES CALCULATED IN THE FINAL PSR

CLAIMED ALL OF THE METHAMPHETAMINE ASSOCIATED WITH THE CONSPIRACY

WAS "ICE" QUALITY (OVER 80% PURE) EVEN THOUGH THE MAJORITY OF THE

DRUGS WERE CONSIDERED POOR QUALITY

As alleged in the conspiracy, Mr. Bonk was responsible for

distributing 1,540.15 grams of methamphetamine with a purity of 80% or

higher. The third and final revised PSR claimed Mr. Bonk purchased

methamphetamine from multiple sources. The PSR cited four people that

Mr. Bonk purchased the drugs with. Lewis Lowrey claimed he drove Mr.

Bonk purchased a total of 453.6 grams of poor quality methamphetamine.

See District Exhibit (d/e) document 127 at 11 8). Yet, the PSR calculated

the methamphetamine associated with Lewis Lowrey at high quality "ICE".

The PSR further claimed Wallace McCreary drove Mr. Bonk to purchase

methamphetamine on three occasions that totaled 170.1 grams, None of it

was tested and the PSR alleged it was ICE quality. The PSR also claimed

Timothy Wood, a co-defendant in the conspiracy, drove Mr. Bonk seven

times to purchase methamphetamine and it totaled 805.45 grams. Each

time Timothy Wood drove Mr. Bonk it was poor quality, yet, it was

calculated as "ICE" (over 80% pure).

The PSR also claimed the methamphetamine both co-defendants, Timothy

W@od and Darcy Kampas, had in their possession when they were arrested,

111 grams. 25.3 grams had a purity of 98% and 83.2 grams had a purity of

84%. (d/e doc. 127 at 111119-20). There is no doubt that the 11 grams

associated with co-defendants Wood and Kampas should be calculated as

"ICE", being it was tested and proven to be over 80% pure.

8

After Mr. Bonk pled guilty and the PSR was dra~t ted, the District

Court imposed a 262 month sentence, 30 months below the sentencing

guidelines. Mr. Bonk filed a notice of appeal and the Seventh Circuit

affirmed the judgment on July 24, 2020. U.S. v. Bonk, 967 F.3d 643 (7th

Cir. 2020). However, on August 28, 2020, the Seventh Circuit held that

the government failed to meet its burden of establishing that the drugs

at issue were "at least 80% pure methamphetamine because its proof

consisted predominantly of circumstantial evidence by users, dealers,

and law enforcement that the drug appears to be ICE

based on look, smell,

and nomenclature. Further, the Court held dealers, and users cannot

detect the difference between 65%, 79%, and 80% purity of methamphetamine.

Mr. Bonk raised this claim in his §2255 motion. The District Court

agreed that Mr. Bonk "may have had a valid claim that at least some of

the methamphetamine involved in the conspiracy was not ice", (d/e doc.

187 at page 11). The District Court further stated "that the evidence

supplied in the PSR would have not been sufficient to find by the

preponderance of the evidence that all 1,540.15 grams were ICE without

impermissibly relying on statements from drug users and dealers...At the

very least, Mr. Bonk has made a strong case that, after Carnell, his

drug purity findings would have been different." (d/e doc. 187 at page 12).

However, the District Court denied the claim because Carnell came out

after Mr. Bonk pled guilty and trial counsel was not ineffective for

not raising a novel claim.

However, as alleged in his §2255 motion and the District Court

failed to acknowledge, this claim' should have been applied retroactively

as applied to Mr. Bonk, because his direct appeal was not finalized when

the Seventh Circuit ruled on U.S. v. Carnell, 972 F.3d 932). Mr. Bonk's

appeal was decided on July 24, 2020, and his appeal was finalized 90 days

9

later, which is the time for filing a writ of certrorari expires, which

was October 24 5 2020. This Court has held, "Federal judgment becomes

final when this Court affirms a conviction on the merits on direct review

or denies a petition for a writ of certiorari, or if a petitioner does

not seek certiorari, when the time for filing a certiorari petition

expires." Gonzales v. Thaler

132 S.Ct. 641 (2012). The Seventh Circuit

decided the Carnell case on August 28, 2020. Thus, the Carnell ruling

should have been applied retroactively to him. Griffith v. Kentucky, 107

S.Ct. 708 (1987). See also, Schriori v. Summerlin, 542 U.S. 348 (2004)

("Apprendi apply retroactively to cases in which direct appeal were not

finalized").

Here, the District Court erred in not applying the Carnell ruling

retroactively to Mr. Bonk's case, since his direct appeal was not

finalized. The Sentencing Guidelines imposes harsher sentences for

methamphetamine that is deemed to be over 80% purity, also known as "ICE"

quality. However, with the claim at bar, only 111 grams should have been

calculated as ICE and 1,429.15 grams should have been calculated as

methamphetamine mixture.

Because the District Court refused to apply retroactively the

Carnell ruling, and the Seventh Circuit denied Mr. Bonk the ability to

appeal the District Court's ruling, this Court must grant certiorari

to correct this error.

10

II. DISTRICT COURT ERRED IN FINDING TRIAL COUNSEL WAS NOT INEFFECTIVE

FOR NOT OBJECTING TO THE INACCURATE SENTENCING GUIDELINES CALCULATED

IN THE FINAL REVISED PSR THAT INCLUDED THE TWO POINT LEADERSHIP ROLE

WHERE MR. BONK NEVER EXERCISED ANY CONTROL OR AUTHORITY OVER ANYBODY

IN THE CONSPIRACY, AND THE RECORD DOES NOT SUPPORT THIS ENHANCEMENT

The government claimed Mr. Bonk and his two co-defendants, Darcy

Kampas and Timothy Wood, were part of a conspiracy to distribute and

possess with intent to distribute at least 50 grams of methamphetamine.

This conspiracy occurred between May and September of 2017. After pleading

guilty, the PSR claimed Mr. Bonk was responsible for distributing 1,540.15

grams of ICE quality (80% purity or higher) of methamphetamine. They

calculated his total offense level at 35, which included two points for

his leadership role, with a Criminal History Category ^1, resulting in

an advisory guideline range of 292-365 months in prison, (d/e doc. 127

at 1M135 - 120) .

The Sentencing Guidelines allows for sentencing enhancements based

on a defendant's leadership role in the offense. USSG § 3B1.1. Although

the Sentencing Guidelines are no longer mandatory, U.S. v. Booker, 5^3

U.S. 220 (2005), the district court is still required to consult,

consider, and calculate the guideline range when imposing a sentence.

U.S. v. McGee, 985 F.3d 559 (7th Cir. 2021). The plain language of

Section 3B1.1 sets forth seven explanatory factors that illuminate

whether a defendant is an organizer, leader, or manager, and these

factors must be considered in whether to apply the adjustment for an

aggravating role in the offense:

"(l) exercise of decision making authority, (2) the nature of participation

in the commission of the offense, (3) the recruitment of accomplices, (4) the

claimed right to a larger share of the fruits of the crime. (5) the degree or

participation in planning or organizing the offense. (6) the nature and scope of

the illegal activity, and (7) the degree or control and authority exercised over

others."

11

These factors are merely consideration for the sentencing judge.

However, Section 3B1.1 requires the exercise of some authority in the

organization, the exertion of some degree or control, influence,, or

leadership. Typically, this means that "the defendant had some real and

direct influence on other participants in the criminal activity. U.S. v.

Mankiewicz, 122 F.3d 399 (7th Cir. 1997). Although the terms used for

each role are not defined by the Guidelines, the Seventh Circuit has

held that a supervisor or manager "tells people what to do and determine

whether they've done it." U.S. v. Figueroa, 682 F.3d 694 (7th Cir. 2012).

With the case at bar, there is no evidence indicating that the

defendant exercised any control or authority over anybody in the

conspiracy. The Seventh Circuit has held "the finding of a three level

supervisory role enhancement was improperly imposed absent evidence that

a drug dealer supervised his buyers, who were also drug dealers." U.S. v.

Weaver, 716 F.3d 439, 443-44 (7th Cir. 2013).

The District Court claimed there were other enhancements that were

contemplated in the PSR, including a firearm enhancement and a higher

potential leadership enhancement, but that the parties mutually agreed

to forego these objections." (d/e doc. 187 at page 13). However, at

sentencing, Mr. Bonk asked his trial counsel about the leadership role

enhancement and trial counsel told him "that's what the government is

claiming", but there is no evidence to support this enhancement. Trial

counsel should have objected to the two-point enhancement for Mr. Bonk s

role in the offense.

It is well-established that every person charged with a crime has a

constitutional right to receive effective assistance of counsel. U.S.

Const.

amends. VI, XIV. Strickland v. Washington, 466 U.S. 668 (1984).

To prevail on a claim of ineffective assistance of counsel, petitioner

12

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#

must satisfy the two-prong test set forth in Strickland and establish

that (1) counsel's performance fell below an objective standard or

reasonableness, and (2) counsel's deficient performance prejudiced the

defendant. Id at 674.

Here, trial counsel's performance fell below an objective standard

of reasonableness when he refused to object to the two-point enhancement

for Mr. Bonk's role in the. offense. There is no

evidence to support

this enhancement. Even the minimal competent attorney would have objected

to the enhancement.

To satisfy the second-prong in Strickland, Mr. Bonk must establish

that but for counsel's unprofessional errors, there is a reasonable

probability that the court proceeding would have been different. With

the claim at bar, prejudice can be shown as the outcome would have been

different if trial counsel would have been different. If the two-point

enhancement for leadership would have been objected to, the Total

Level base Offense would have been 33 (as oppose to 35). This would have

reduced his sentencing guidelines significantly.

The District Court imposed a sentence that was 30 months below the

sentencing guidelines. If the two points for his leadership role were

removed, and the sentencing guidelines would have been 232-262. Its

reasonable to

assume that the District Court would have imposed a

sentence 30 months below the minimum sentencing range. Nevertheless,

this Court has held "[w]hen a defendant is sentenced under an incorrect

Guidelines range - the error itself can, and most often will, be

sufficient to show a reasonable probability of a different outcome absent

the error." Molina-Martinez v. U.S., 136 S.Ct. 1338 (2016)

The Seventh

Circuit and District Court are out of step with this Court. Certiorari

should be granted to correct this error.

13

f

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Wade Bonk

Date:

..

/-aT-^3 &>

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