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Brown v. United States

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

September 8, 2017




         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

         Pro se Petitioner Jason Dean Brown, a United States citizen, owned illegal sweepstakes call centers in Costa Rica and also worked as both an “opener” and “loader.” (Crim. Case No. 3:12-cr-370-RJC-DSC-2, Doc. No. 56 at ¶ 6: PSR). An “opener” is the telemarketer who initially contacts and persuades the victim to send money in payment for fraudulently alleged fees. (Id. at ¶ 7). A “loader” is the telemarketer who takes over contact with a paying victim and persuades the victim to pay additional, purported fees before receiving the promised reward-in Petitioner's case, a sweepstakes prize of at least $350, 000. (Id. at ¶¶ 7-8).

         Beginning in 2007, Petitioner and his co-conspirators opened a call center in San Jose, Costa Rica, to defraud United States residents through a fraudulent sweepstakes telemarketing scheme. Using various aliases, Petitioner and his co-conspirators would call their victims and inform them that they had won a sweepstakes, but delivery of the sweepstakes prize was contingent on the victims paying a “refundable insurance fee.” (Id.). The sweepstakes was fraudulent, as no prize existed, and all victim funds went directly to the personal benefit of Petitioner and his co-conspirators. (Id.). During the scheme, Petitioner and his co-conspirators would impersonate members of various federal government agencies, including the Federal Trade Commission and U.S. Customs, in order to persuade the victims to pay the additional fictitious fees. See (Id. at ¶ 10).

         On November 15, 2012, a grand jury indicted Petitioner and a co-conspirator on fourteen counts. (Id., Doc. No. 7: Indictment). Petitioner entered into a plea agreement with the Government on July 30, 2014, pleading guilty to (1) conspiracy to commit wire and mail fraud (18 U.S.C. §§ 1349, 2326(2)(A) & (B)) (Count One); (2) wire fraud (18 U.S.C. §§ 1343, 2326(2)(A) & (B)) (Count Two); (3) and conspiracy to commit money laundering (18 U.S.C. § 1956(h) (Count Ten)). See (Id., Doc. No. 33: Plea Agreement; Doc. No. 70: Judgment). As part of his plea agreement, Petitioner stipulated that there was a factual basis for his plea and that he had read and understood the factual basis and that it could be used to determine the applicable sentence. (Id., Doc. No. 33 at ¶ 1). Petitioner agreed to waive his right to challenge his conviction and sentence on appeal or in any post-conviction proceeding, except as to claims of ineffective assistance of counsel or prosecutorial misconduct. (Id. at ¶ 18).

         At the plea hearing, Petitioner testified that he understood the nature of the charges and the potential penalties, as well as the fact that the Court could not yet determine his sentence and that he would still be bound by his plea even if he received a higher sentence than he expected. (Id., Doc. No. 58 at 8-9: Plea Tr.)). Petitioner testified that he was guilty of the charges. (Id. at 11). The Government summarized the plea agreement, including the provision that there were no other agreements, representations, or understandings between the parties. (Id. at 11-13). Petitioner agreed that he had reviewed the plea agreement with his attorney and that he understood and agreed to its terms, including the fact that he had waived the right to challenge his conviction and sentence in a post-conviction proceeding. (Id. at 13-14). Petitioner testified that he had not been threatened to plead guilty, that no outside promises of a light sentence been made to him, and that he was satisfied with his attorney. (Id. at 15). Based on these representations, the magistrate judge accepted Petitioner's plea, finding that it was knowingly and voluntarily made. (Id. at 17-18).

         A probation officer prepared a presentence report, finding that, based on a total offense level of 33 and a criminal history category of IV, Petitioner's guideline range was 188-235 months imprisonment. (Id., Doc. No. 56 at ¶ 69). At sentencing, Petitioner testified that he had read the PSR and reviewed it with his attorney. (Id., Doc. No. 83 at 6-7: Sent. Tr.). On October 22, 2015, this Court sentenced Petitioner to 103 months of imprisonment, after granting a motion for downward departure by the Government pursuant to U.S.S.G. § 5K1.1 based on substantial assistance. (Id., Doc. No. 83 at 21). Petitioner appealed and his appeal was dismissed by the Fourth Circuit on June 16, 2016. (Id., Doc. Nos. 91, 92). On October 17, 2016, the Supreme Court denied the petition for writ of certiorari. (Id., Doc. No. 94).

         Petitioner filed the present motion to vacate on February 28, 2017, raising the following claims: (1) Petitioner received ineffective assistance of counsel; (2) this Court erred in determining Petitioner's criminal history category; (3) this Court erred in failing to grant a downward departure under U.S.S.G. § 5K2.16, as Petitioner alleges he was the originator in identifying and disclosing his criminal conduct to the Government; and (4) Petitioner was improperly denied credit for the time he was incarcerated in Costa Rica while awaiting extradition to the United States. (Id.). The Government filed its response on May 30, 2017. (Doc. No. 4). Petitioner filed a pro se reply on June 16, 2017. (Doc. No. 6). Therefore, this matter is ripe for disposition.


         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).


         A. Plea Waiver of Petitioner's Claims Not Raising Ineffective Assistance of Counsel.

         In its response, the Government first contends that Petitioner waived challenges to his criminal history calculation and the Court's failure to grant him a downward departure under U.S.S.G. § 5K2.16. For the following reasons, the Court agrees. A defendant's knowing and voluntary waiver of the right to collaterally attack his conviction and sentence is enforceable. United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). In evaluating claims under § 2255, statements made by a defendant under oath at a plea hearing carry a “strong presumption of verity” and present a “formidable barrier” to subsequent collateral attacks. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). As the Fourth Circuit has made clear, “courts must be able to rely on the defendant's statements made under oath during a properly conducted ...

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