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Whitney v. United States

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

January 23, 2018

RODNEY W. WHITNEY, Petitioner,


          Frank D. Whitney, Chief 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

         Petitioner was charged by Bill of Information[1] with: Count (1), conspiracy to commit mail fraud and wire fraud; and Count (2), conspiracy to commit money laundering. (3:11-cr-49, Doc. No. 1).

         Petitioner pled guilty to both counts pursuant to a written plea agreement. The agreement sets forth the statutory maximum sentence for each count and provides that the U.S. Sentencing Guidelines will apply, that the sentence has not yet been determined, and that the Court will not be bound by any agreement or recommendation regarding the sentence. (3:11-cr-49, Doc. No. 2 at 1-2). The parties agreed to jointly recommend the following with regards to the Presentence Investigation Report (“PSR”): a base offense level of seven; eighteen levels for a loss amount of more than $2, 500, 000 and less than $7, 000, 000; two levels for ten or more victims; two levels for sophisticated means; and two levels for role as organizer, leader, manager, or supervisor. This would result in an adjusted offense level 31. (3:11-cr-49, Doc. No. 2 at 2). The parties agreed not to recommend any other enhancements or reductions, and to seek a sentence within the applicable guidelines range without departure or variance. (3:11-cr-49, Doc. No. 2 at 3).

         The written plea agreement provides that Petitioner agrees to pay full restitution in the amount of $2, 185, 063.99 to all victims of defendant's criminal conduct. Petitioner understands that such restitution will be included in the Court's Order of Judgment and an unanticipated amount of a restitution order will not serve as grounds to withdraw the plea. (3:11-cr-49, Doc. No. 2 at 3). He also agreed to forfeiture and waived the right to notice of forfeiture under Rule 32.2 and of any other action or proceeding regarding such assets. (3:11-cr-49, Doc. No. 2 at 4).

         The written agreement provides that Petitioner stipulates that there is a factual basis for the plea of guilty and that the Court may determine the factual basis for the plea based on the Factual Basis in Support of Guilty Plea, signed by the defendant and his counsel, as well as the offense conduct set out in the PSR, “except any facts to which the defendant has objected.” (3:11-cr-49, Doc. No. 2 at 5). Petitioner waived “all right to contest the conviction except for: (1) claims of ineffective assistance of counsel or (2) prosecutorial misconduct.” (3:11-cr-49, Doc. No. 2 at 6).

         A separately filed factual proffer sets forth the offense conduct. It includes the admission that Petitioner “retained at least $237, 391.33 of investors' monies for his personal use.” (3:11-cr-49, Doc. No. 5 at 3). He further admits that, “[a]fter misappropriating $3, 290, 000 of investor funds, [Petitioner] repaid some monies back to investors. Following those payments, [Petitioner's] conduct resulted in a total outstanding loss to investors of $2, 185, 063.99.” (3:11-cr-49, Doc. No. 5 at 3).

         A Rule 11 plea hearing came before Magistrate Judge Cayer on March 21, 2011. (3:11-cr-49, Doc. No. 50). At that time, Petitioner acknowledged that he received a copy of the Bill of Information and went over it with counsel. (3:11-cr-49, Doc. No. 50 at 3, 7). He fully understood the charges and potential penalties. (3:11-cr-49, Doc. No. 50 at 4-5). Petitioner stated that, after consulting with his attorney, he wanted the Court to accept his guilty plea to the two counts in the bill of information and consented to proceed before a magistrate judge. (3:11-cr-49, Doc. No. 50 at 6). Petitioner was not under the influence of alcohol or drugs and had a clear mind. (3:11-cr-49, Doc. No. 50 at 6).

         Petitioner spoke to his attorney about how the sentencing guidelines would apply to his case. The magistrate judge asked “Do you understand that the district judge will not be able to determine the applicable sentencing guideline range until after your presentence report has been prepared and you've had an opportunity to comment on it.” (3:11-cr-49, Doc. No. 50 at 8). Petitioner responded “Yes, sir.” (Id.).

         Petitioner confirmed that he understood that he may receive a sentence that is different from what is called for in the guidelines, that the Court may order restitution, and that he is still bound by the plea even if the sentence is more severe than he expects. (3:11-cr-49, Doc. No. 50 at 9). He understood that the plea agreement includes a two-level enhancement for role and restitution in the amount of $2, 185, 063.99 (3:11-cr-49, Doc. No. 50 at 13-14).

         Petitioner also confirmed that he understood the rights he was waiving by pleading guilty, including the right to plead not guilty, have a speedy trial before a jury, summon witnesses to testify, and confront the witnesses against him. (3:11-cr-49, Doc. No. 50 at 10). He admitted that he is in fact guilty of the counts to which he is pleading guilty. (3:11-cr-49, Doc. No. 50 at 10). Petitioner stipulated that there is a factual basis for the plea. (3:11-cr-49, Doc. No. 50 at 15). Petitioner further acknowledged that the right to appeal his conviction and sentence, and his right to challenge his conviction and sentence in a post-conviction proceeding have been expressly waived in the plea agreement. (3:11-cr-49, Doc. No. 50 at 19). Nobody threatened, intimidated, or forced him to plead guilty, he was not promised anything other than what is contained in his plea agreement, and he had enough time to discuss it with counsel. (3:11-cr-49, Doc. No. 50 at 20).

         The Court then asked Petitioner whether he was satisfied with the services that counsel had provided and Petitioner stated he is extremely satisfied:

THE COURT: Are you satisfied with the services of your attorney in this case?
THE COURT: Is there anything that you would like to say at this time about the services of your attorney?
THE DEFENDANT: He's answered all my questions and been there when I needed to speak with him, so I'm extremely satisfied with him.

(3:11-cr-49, Doc. No. 50 at 20) (emphasis added).

         Petitioner heard and understood all parts of the pleading, still wished to plead guilty, did not have any questions, and did not wish to make any statements. (3:11-cr-49, Doc. No. 50 at 21). Defense counsel stated that he reviewed each and every term of the plea agreement with Petitioner and is satisfied that he understands them. (3:11-cr-49, Doc. No. 50 at 21)

         Magistrate Judge Cayer accepted the guilty plea. (3:11-cr-49, Doc. No. 11).

         The PSR calculated the base offense level as seven and added: 16 levels for a loss exceeding $1, 000, 000 but less than $2, 500, 000 with an actual loss amount of $2, 077, 488.39; two levels for more than 10 victims; two levels for sophisticated means; one level for conspiracy to violate 18 U.S.C. § 1957; and two levels for role. (3:11-cr-49, Doc. No. 19 at ¶¶ 25, 30, 31, 33, 75). Three levels were deducted for acceptance of responsibility, resulting in a total offense level of 27. (3:11-cr-49, Doc. No. 19 at ¶¶ 37, 38, 39). Petitioner had zero criminal history points and a criminal history category of I. (3:11-cr-49, Doc. No. 19 at ¶¶ 43, 44). The resulting guidelines imprisonment range was 70-87 months. (3:11-cr-49, Doc. No. 19 at ¶ 65). The PSR notes that, although the Plea agreement set forth an 18-level enhancement for loss, the loss established by the offense conduct was $2, 075, 163.99, which only calls for a 16-level enhancement. (3:11-cr-49, Doc. No. 19 at ¶ 66). Further, the plea agreement did not include an enhancement for a conviction under 18 U.S.C. § 1956(h), conspiracy to violate 18 U.S.C. § 1957. (Id.). Therefore, the plea agreement provides for a total offense level that is higher than the range in the PSR. (Id.).

         Petitioner did not file any written objections to the PSR. See (Doc. No. 19 at 17).

         The sentencing hearing came before the Court on January 7, 2013. (3:11-cv-49, Doc. No. 47). Petitioner agreed that he recalled appearing before Magistrate Judge Cayer and answering questions under oath, all of which are true and correct and his answers would be the same if he was asked them again today. (3:11-cv-49, Doc. No. 47 at 3). Petitioner reviewed the “Acceptance of Plea” form listing the questions that the magistrate judge asked, checked it for accuracy, and signed it. (3:11-cv-49, Doc. No. 47 at 3). Petitioner admitted that he is, in fact, guilty of the two felonies that he ...

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