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Perkins v. United States

United States District Court, W.D. North Carolina, Charlotte Division

February 22, 2017



          Max O. Cogburn Jr. United States District Judge

         THIS MATTER is before the Court on consideration of petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence which is filed pursuant to 28 U.S.C. § 2255, and respondent's Motion for Summary Judgment. For the reasons that follow, respondent's Motion for Summary Judgment will be granted, and petitioner's Motion to Vacate will be therefore be denied and dismissed.


         On June 27, 2013, petitioner was the lone defendant charged in a bill of information with one count of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371. That same day, petitioner filed a plea agreement in which he admitted he was in fact guilty of the securities fraud conspiracy. Petitioner further agreed, pursuant Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure, that the amount of loss to his victims that was known to or reasonably foreseeable to him was more than $400, 000, but less than $1, 000, 000. Petitioner also stipulated that he understood that “loss” as that term is defined under § 2B1.1 of the United Sentencing Guidelines Manual (USSG), may differ from restitution that is ordered under 18 U.S.C. § 3556. (3:13-cr-00187, Doc. No. 2: Plea Agreement). In addition, petitioner agreed to “pay full restitution, regardless of the resulting loss amount, to all victims directly or indirectly harmed by defendant's ‘relevant conduct, ' including conduct pertaining to any dismissed counts or uncharged conduct, as defined by U.S.S.G. § 1B1.3, regardless of whether such conduct constitutes an ‘offense, ' under 18 U.S.C. §§ 2259, 3663, 3663A.” (Id. ¶ 7). Petitioner also filed a Factual Basis on June 27, in which the parties agreed there was a factual basis to support his guilty plea. (Id., Doc. No. 3).

         Prior to his Plea and Rule 11 hearing, Petitioner filed written notice of waiver of indictment and his plea hearing was conducted on September 6, 2013, where petitioner was present with counsel and placed under oath. In responding to the magistrate judge's questions, Petitioner acknowledged that he had reviewed the one count charged in the bill of information with his counsel, and he acknowledged that he understood the elements of the offense and the potential penalties he faced upon conviction. Petitioner also acknowledged that he had discussed any possible defenses with counsel and he knew he could plead not guilty and contest the charges at trial before a jury, summon witnesses, and cross-examine the government's witnesses. Petitioner then acknowledged that he understood and agreed with the terms of his plea agreement; that he was satisfied with the services of his counsel; and that he was pleading guilty because was in fact guilty of the conduct charged in the bill of information. The court recorded petitioner's answers in writing and presented them to petitioner and counsel to review, and they agreed that the answers that petitioner had given under oath were true and they signed the Acceptance of Plea form. The court then accepted the guilty plea after finding that it was knowing and voluntary and petitioner's case was then referred to the U.S. Probation Office for preparation of a presentence report (PSR). (Id., Doc. No. 9: Acceptance and Entry of Guilty Plea).

         In the PSR, the probation officer included a detailed summary of petitioner's offense conduct to support the calculation of the Guidelines Range which included verbatim language from the Factual Basis noted above and is set forth as follows:

5. From in or about 2006 through in or about January 2008 defendant John Reid Perkins, Jr. ("PERKINS") conspired with individuals T.G., V.F., and others to engage in a securities fraud scheme. This scheme involved a variety of companies, including Master Home Solutions (MHS), and resulted in victims being defrauded of over $400, 000.
6. PERKINS, T.G., V.F., and others induced victims to invest in MHS by making a series of false and fraudulent representations, omitting material facts, and telling deceptive halftruths. PERKINS, T.G., V.F., and others falsely led victims to believe that their money would be invested in MHS and that MHS would in turn invest in real estate projects. Victims were told that MHS owned several properties and that MHS was in the process of buying several additional properties. In truth and fact, MHS owned very few properties and neither PERKJNS, T.G., nor V.F. had any intention of purchasing additional properties.
7. Furthermore, very little, if any, victim money was invested in real estate projects. Rather, PERKINS, T.G., V.F., and others, (1) diverted victim money to themselves to support their personal lifestyles, which included, among other things, paying bills, buying cars, purchasing real estate, and withdrawing large amounts of cash; (2) diverted victim money to other victims in Ponzi fashion, falsely characterizing such payments as gains on investments in order to induce further investments by such victims; (3) faced with refund demands and withdrawal requests from old victims, diverted new victim money to the older victims in Ponzi fashion in order to conceal and prolong the scheme; and (4) to avoid fulfilling victim withdrawal requests, led victims to falsely believe their money was unavailable because the funds were tied up in investments that had specific maturity periods. In other instances, PERKINS, T.G., V.F., and others falsely advised victims to invest additional funds in order to secure the return of their original investment.

(Id., Doc. No. 37: PSR ¶¶ 5-7).

         The probation officer calculated a base offense level of 24 and after adjusting for acceptance of responsibility, petitioner's Guidelines range was 46-57 months based on a total offense level of 21 and a criminal history category of IV. However, because the authorized statutory maximum was five years, the Guidelines range was adjusted to a term of 57-60 months. See USSG § 5G1.1(c)(1). (Id. ¶ 71). The probation officer also recommended that petitioner be ordered to pay $805, 150 to the victims listed in the PSR pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, and USSG § 5E1.1. (Id. ¶ 81).

         Petitioner filed objections to the PSR contending that the loss amount sustained by the victims as detailed in paragraphs 11 and 81 of the PSR was too high, and he contended that some of the listed victims were not even affected by the conspiracy to defraud. Petitioner also complained that some of the alleged conduct occurred outside the relevant time frame of the conspiracy, and Petitioner challenged the amount of restitution and a two-level enhancement for employing sophisticated means in the conspiracy. The probation officer recommended no changes to the final PSR.

         On February 9, 2015, petitioner appeared for his sentencing hearing and at the outset, the Court confirmed with petitioner that the answers he had given under oath before the magistrate judge were true, that he would give those same answers if they were posed again during sentencing, and his counsel affirmed that he was satisfied petitioner understood the Rule 11 proceedings. Based on these representations, the Court found that petitioner's guilty plea was knowing and voluntary and that he understood the consequences of his plea and his guilty plea was reaffirmed. Next, the government presented the offense conduct as contained in the PSR and petitioner stipulated that the Court could rely on this conduct and the factual basis to support his entry of a guilty plea. The Court found that based on the stipulations of the parties, the voluntary nature of the plea and the offense conduct, that there was a factual basis for the plea and it was accepted and a verdict of guilty entered in the record. After hearing from the parties, the Court sustained Petitioner's objection to the two-level enhancement for employing sophisticated means which reduced his Guidelines range to 46-57 months. Petitioner was sentenced to a term of 50-months and ordered to pay the victims $805, 150.00 in restitution, jointly and severally with a fellow participant in the conspiracy, Terry Wayne Gandy. (Id., Doc. No. 44: Judgment; Doc. No. 45: Statement of Reasons). Petitioner did not appeal.

         In this collateral proceeding, petitioner raises claims of ineffective assistance of trial counsel and challenges to the fairness of his prosecution, ...

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