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United States of America v. Kimani Lanier Fleming

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ARGUED SEPTEMBER 26, 2011–

Before CUDAHY, POSNER, and WOOD, Circuit Judges.

Kimani Lanier Fleming was found guilty by a jury of several serious drug and firearm charges, for which he received a mandatory life sentence. Fleming’s counsel appealed his conviction on evidenti- ary grounds, and this court affirmed. Fleming then filed a petition under 18 U.S.C. § 2255 asserting that his counsel had been constitutionally ineffective. In re- sponse to Fleming’s petition, the government admitted that it had failed to file its notice of enhanced penalty within the permitted time. This prompted the district court to set aside Fleming’s mandatory life sentence and to hold a hearing on the other issues raised in his § 2255 petition. Ultimately, the court resentenced him to a term of 480 months’ imprisonment. Fleming has appealed again, challenging both his conviction for possession of cocaine base with intent to distribute and his revised sentence. He has no certificate of appealability, how- ever, permitting his appeal on the conviction, and we decline to grant one. The only issue properly before us is whether it was appropriate for the district court to include routine drug purchases as relevant conduct when it computed the revised sentencing guideline range. Finding no clear error in that decision, we affirm Fleming’s revised sentence.

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