United States District Court, W.D. North Carolina, Statesville Division
ROBERT J. CONRAD, Jr., District Judge.
THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, (Doc. No. 1), on the Government's Response to Petitioner's Motion to Vacate, (Doc. No. 7), and on Petitioner's Reply, (Doc. No. 10).
Petitioner was part of a conspiracy in which she and others stole hundreds of thousands of dollars' worth of merchandise from retail stores in Charlotte, North Carolina, from January 2003 to February 2009. (Criminal Case No. 3:10-cr-282, Doc. No. 15 at 6: PSR). Petitioner's co-conspirators stole merchandise from retailers, returned the merchandise in exchange for gift cards, and then sold the gift cards to Petitioner at a discount. ( Id., Doc. No. 15 at 6-7). Petitioner also provided her co-conspirators with stolen driver's licenses to allow them to circumvent the retailers' restrictions on the number of returns. (Id. at 6).
Investigators verified Petitioner's participation in the conspiracy by conducting five undercover transactions with Petitioner involving purportedly stolen gift cards and driver's licenses between August 2007 and February 2008. See (Id. at 4-6). One of Petitioner's co-conspirators also identified her as a participant, indicating that he and others routinely sold stolen gift cards to her. (Id. at 5). Before any federal charges were filed, Petitioner met with investigators, during which she described the conspiracy, including her role, and identified several of her co-conspirators. (Id. at 5-6).
On December 22, 2010, Petitioner was charged in a one-count Bill of Information with conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1343. ( Id., Doc. No. 1 at 3: Bill of Information). Petitioner entered into a written plea agreement, pursuant to which she admitted to the charge of conspiracy to commit wire fraud and agreed to plead guilty to the Information. ( Id., Doc. No. 5: Plea Agreement). The parties agreed to a joint recommendation regarding Petitioner's base offense level under the guidelines. ( Id., Doc. No. 5 at 2). In exchange for the Government's concessions, Petitioner agreed to waive all rights to contest her conviction, except for claims of ineffective assistance of counsel and prosecutorial misconduct. (Id. at 4). Petitioner also agreed to provide truthful information about the wire fraud conspiracy, as well as any other criminal activity within her knowledge. (Id. at 5). Finally, the plea agreement provided that the Government would decide, in its sole discretion, whether Petitioner's cooperation was substantial and merited a motion pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 5K1.1 for imposition of a sentence below the guidelines range or for any other reduction based on Petitioner's assistance. (Id. at 6).
On January 19, 2011, Magistrate Judge David S. Cayer conducted Petitioner's Plea and Rule 11 hearing. See ( Id., Doc. No. 27: Plea and Rule 11 Hearing Tr.). During the plea colloquy, Judge Cayer verified that Petitioner had received, and Petitioner stated that she understood, the charge and the maximum sentence. ( Id., Doc. No. 27 at 3). Petitioner also acknowledged that she understood she was waiving her right to indictment by a grand jury and intended to plead guilty to the Information. (Id. at 3-4). Before placing Petitioner under oath, Judge Cayer asked the Government to once again summarize the charge and statutory penalty. (Id. at 5-6). Petitioner then affirmed that she understood the charge and that she was, in fact, guilty of conspiracy to commit wire fraud. (Id. at 8).
The Government next summarized key provisions of Petitioner's plea agreement, after which Petitioner stated that she had discussed the plea agreement with her attorney and that she understood the terms, including the waiver of the right to appeal or otherwise challenge her conviction. (Id. at 11-12). Judge Cayer also verified that Petitioner had received no promises of leniency or for a light sentence other than what was set forth in her plea agreement. (Id. at 12). Petitioner confirmed that she had discussed any possible defenses with her attorney and was satisfied with her attorney's services. (Id. at 11-12). Petitioner's attorney stated similarly that she had discussed the terms of the plea agreement with Petitioner and was satisfied that Petitioner understood them. (Id. at 13). At the conclusion of the colloquy, Judge Cayer found Petitioner's plea to be knowingly and voluntarily made and accepted it. (Id. at 15).
Before sentencing, the probation officer prepared a presentence report that calculated a base offense level of seven for Petitioner's wire fraud conspiracy conviction. ( Id., Doc. No. 15 at 9: PSR). Consistent with the joint recommendation set forth in the plea agreement, the probation officer then added a ten-level enhancement based on the pecuniary harm that resulted, a two-level enhancement because the fraud had ten or more victims, and an additional two-level enhancement because the offense involved the production or trafficking of an unauthorized access device or authentication feature. (Id.). After subtracting three levels for Petitioner's acceptance of responsibility, the probation officer calculated a total offense level of eighteen. (Id.). Petitioner qualified for a criminal history category of I which, when coupled with the total offense level of eighteen, resulted in a guidelines range of twenty-seven to thirty-three months. (Id. at 15). Petitioner did not object to the presentence report.
This Court conducted Petitioner's sentencing hearing on September 22, 2011. At the outset of the hearing, the parties stipulated to the factual basis set forth in the presentence report to support Petitioner's guilty plea. ( Id., Doc. No. 28 at 2: Sentencing Hr'g Tr.). This Court then adopted Judge Cayer's finding that Petitioner knowingly and voluntarily pled guilty to conspiracy to commit wire fraud. (Id. at 2). After accepting Petitioner's plea, this Court next considered the Government's motion for reduction of sentence filed under U.S.S.G. § 5K1.1, based on Petitioner's substantial assistance. In support of the motion, the Government summarized Petitioner's assistance, including her admission of her own criminal conduct, description of the fraudulent scheme, and identification of co-conspirators and victim retailers. (Id. at 4). Based on Petitioner's assistance, the Government recommended a one-third reduction in the guidelines range and a sentence at the low end of that range of eighteen months in prison. (Id.).
In response, Petitioner's counsel requested an even greater departure down to an offense level of eleven, which would make Petitioner eligible for a sentence involving community or home confinement rather than a prison term. In support of the request, Petitioner's counsel emphasized the immediacy of Petitioner's acceptance of responsibility, detailed Petitioner's truthful description of the scheme, highlighted Petitioner's fear of retribution from co-conspirators, and noted the timeliness of Petitioner's cooperation. (Id. at 7-11). In addressing the sentencing factors set forth in 18 U.S.C. § 3553(a), Petitioner's counsel noted that the crime was nonviolent and involved economic harm, and highlighted Petitioner's family characteristics, including that she is responsible for caring for her disabled mother. (Id. at 12-16).
Before announcing its sentence, this Court adopted the guidelines calculations set forth in the presentence report and granted the Government's motion for downward departure. (Id. at 3; 6). This Court then sentenced Petitioner to eighteen months in prison. (Id. at 24). In doing so, this Court noted that it had considered Petitioner's request for a further variance or departure, including the claim that Petitioner played a "caretaking role" for her mother, but the Court found that a sentence of eighteen months was appropriate given the seriousness of the offense and need for deterrence. (Id. at 25). This Court entered judgment on September 30, 2011, and amended that judgment to correct a clerical mistake in the restitution order on February 28, 2012. ( Id., Doc. No. 19: Judgment; Doc. No. 29: Amended Judgment). Petitioner filed a notice of appeal but later voluntarily dismissed her appeal. See ( Id., Doc. No. 22: Notice of Appeal; Doc. No. 30: Mandate).
On April 16, 2012, Petitioner filed the instant Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence, raising three claims of ineffective assistance of counsel and one claim of prosecutorial misconduct. (Doc. No. 1). On November 15, 2012, the Government filed a Response to the motion to ...