United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. 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).
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
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).
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).
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).
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).
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
STANDARD OF REVIEW
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).
Plea Waiver of Petitioner's Claims Not Raising
Ineffective Assistance of Counsel.
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 ...