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Vinci v. United States

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

May 10, 2017

SAMUEL HENRY VINCI, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Richard L. Voorhees United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).

         I. BACKGROUND

         In 1998, pro se Petitioner Samuel Henry Vinci, Jr., was convicted in North Carolina state court of two counts of second-degree rape. (Crim. Case No. 5:15-cr-41-RLV-DCK-1, Doc. No. 20 at ¶ 5: PSR). One of the victims was his fifteen-year-old niece. (Id., Doc. No. 34 at 5: Sent. Tr.). He served his term of imprisonment and was released in 2009. (Id., Doc. No. 20 at ¶ 5). Petitioner was required to register as a sex offender and inform law enforcement of any online identifiers that he used. (Id.). In 2014, law enforcement officers received a tip that Petitioner was using a Facebook account under the name of “Sal Machett.”[1] (Id. at ¶ 6). Because Petitioner had not informed law enforcement that he was using this identity, Caldwell County Sheriff's Sergeant Aaron Barlow began an investigation to see whether Petitioner was using this account. (Id.). Using an undercover profile of a fifteen-year-old girl named Sierra, Barlow sent a friend request to Machett's account.[2] (Id. at ¶ 7).

         Machett accepted the friend request and sent Sierra a message using the Facebook chat program. (Id.). Sierra told him she was missing school, and he asked her if she had a boyfriend and whether she liked old guys. (Id.). Machett asked Sierra how old she was, and Sierra replied that she was fifteen. (Id.). He then said that he was too old for her, and he unfriended her. (Id.). Despite this, Machett continued to send Sierra messages, and several hours later he sent her a friend request. (Id.). Shortly thereafter, he asked Sierra to send him a picture, and he sent pictures of himself. (Id.). The photos were of Petitioner. (Id.). Machett then turned the conversation toward sex, asking Sierra if she had sex, if she would send him a video of her being sexy or a close-up picture of her genitals, and if she wanted to make love. (Id. at ¶ 8). He also told her how to delete evidence of their conversations. (Id.).

         Over the next two days, Machett kept messaging Sierra online, asking if she would like to meet and if she would call him. (Id. at ¶ 9). When they spoke on the phone, Machett said that he would bring Sierra to his home, where they could watch a movie and he could show her how to make love. (Id.). Due to concerns about Sierra's mother, Machett suggested that they use a code word when chatting, so that he would know that he was speaking with her and not her mother. (Id.). During one of their chats he also asked her to turn on her Facebook location function. (Id. at ¶ 10). Sergeant Barlow quickly drove to the local high school, where he turned on the location feature so the function would show that Sierra was at school. (Id.).

         When Sierra expressed concerns about getting pregnant, Machett assured her that he would bring protection. (Id. at ¶ 9). He told her to wear something sexy, and he told her that she would not be wearing it for long. (Id.). Machett asked her to send him a nude picture. (Id.). He told her in graphic terms that he wanted to have oral sex and sexual intercourse with her. (Id. at ¶ 10). They determined a place to meet, and Machett/Petitioner was arrested when he arrived at the rendezvous point. (Id. at ¶ 11). Although Petitioner admitted to using the Machett Facebook account, he initially claimed that he had gone to the rendezvous point to pick persimmons. (Id.). He later admitted that he had gone to that location to meet with Sierra. (Id.).

         A grand jury charged Petitioner in a superseding indictment with attempted use of an interstate facility to entice a person under the age of 18 to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Count One), and committing a felony offense involving a minor while required to register as a sex offender, in violation of 18 U.S.C. § 2260A (Count Two). (Id., Doc. No. 10: Superseding Indictment). Petitioner agreed to plead guilty to Count One. (Id., Doc. No. 14 at ¶ 1: Plea Agrmt.).

         As part of Petitioner's plea agreement, the Government agreed to dismiss Count Two of the indictment, which carried a mandatory, ten-year consecutive sentence. (Id. at ¶ 2). The parties agreed to recommend to the Court that the base offense level was 28; that a two-level enhancement applied for using a computer to entice a minor to engage in prohibited conduct; that entry of the plea was timely for purposes of acceptance of responsibility; that the enhancement in U.S.S.G. § 4B1.5(a) for being a repeat and dangerous sex offender against minors applied; and that the appropriate sentence was one within the applicable guidelines range. (Id. at ¶ 7). As part of the plea agreement, Petitioner agreed that he had read and understood the factual basis and that it could be used to determine the applicable guidelines range. (Id. at ¶ 14). He also agreed to waive the right to appeal his conviction or sentence on direct appeal or in any post- conviction proceeding, except as to claims of ineffective assistance or prosecutorial misconduct. (Id. at ¶¶ 18-19).

         At the plea hearing, Petitioner stated under oath that he understood the nature of the charge and that it carried a minimum term of ten years of imprisonment and a maximum term of life imprisonment. (Id., Doc. No. 33 at 4: Plea Hrg.). Petitioner stated that he had spoken with his attorney about how the Sentencing Guidelines might apply in his case and that he understood that the applicable sentencing range could not be determined until after his presentence report had been prepared. (Id. at 4-5). Petitioner also affirmed that he understood that he could receive a sentence higher or lower than the guidelines range and that if the sentence imposed was more severe than he expected, or if the Court did not accept the Government's sentencing recommendation, he would still be bound by his plea. (Id. at 5).

         The Government reviewed the terms of the plea agreement, including the parties' recommendation that the § 4B1.5(a) enhancement for being a repeat and dangerous sex offender against a minor applied, and Petitioner affirmed that he understood and agreed to those terms. (Id. at 7-10). Defense counsel also stated that she had reviewed each of the terms of the plea agreement with Petitioner and was satisfied that he understood those terms. (Id. at 11). Petitioner affirmed that he had read the factual basis, understood it, and agreed with it. (Id. at 10). Finally, Petitioner stated that he had had sufficient time to discuss any possible defenses with his attorney and that he was satisfied with her services. (Id. at 11). The magistrate judge accepted Petitioner's guilty plea, finding that it was knowingly and voluntarily made. (Id. at 12).

         A probation officer prepared a presentence report (PSR), recommending that Petitioner's offense level was 37, due to his prior conviction for a sex offense and the enhancement for being a repeat and dangerous sex offender against minors. (Id., Doc. No. 20 at ¶ 24). Allowing a three-level reduction for acceptance of responsibility, Petitioner's adjusted offense level was 34. (Id. at ¶¶ 25-27). Given Petitioner's status as a repeat and dangerous sex offender, his criminal history category was V. (Id. at ¶ 40). The resulting guidelines range was 235-293 months of imprisonment. (Id. at ¶ 64).

         Petitioner was sentenced on February 9, 2016. At the sentencing hearing, Petitioner affirmed that he understood the nature of the charge and the possible penalties, that his guilty plea was made freely and voluntarily, and that he had committed the offense. (Id., Doc. No. 34 at 2-3: Sent. Tr.). He also stated that he was “fully satisfied with the services of [his] attorney.” (Id. at 3). The parties stipulated that there was an independent factual basis to support the plea, and this Court found that there was a sufficient factual basis and reaffirmed its acceptance of Petitioner's guilty plea. (Id.). Petitioner stated that he had reviewed and discussed the PSR with his attorney. (Id. at 3-4). Petitioner argued for a low sentence, and the Government argued for a sentence at the high end of the guidelines range. (Id. at 4-24). This Court sentenced Petitioner to 235 months of imprisonment, which was the low end of the guidelines range. (Id. at 29).

         Petitioner appealed, and his appellate counsel filed an Anders brief. The Fourth Circuit affirmed Petitioner's conviction and sentence, holding that his guilty plea was knowingly and voluntarily made and was supported by an adequate factual basis. United States v. Vinci, 669 F. App'x 119, 119 (4th Cir. 2016). Petitioner timely filed the present motion to vacate in February 2017, arguing that his attorney ...


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