United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge.
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).
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.” (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. (Id. at ¶ 7).
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.).
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.
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.
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
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
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).
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).
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).
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).
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