United States District Court, W.D. North Carolina, Charlotte Division
RODNEY W. WHITNEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
D. Whitney, Chief 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).
was charged by Bill of Information 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.
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).
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).
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).
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).
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).
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.).
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).
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
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 DEFENDANT: Yes, sir.
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).
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)
Judge Cayer accepted the guilty plea. (3:11-cr-49, Doc. No.
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.
did not file any written objections to the PSR. See
(Doc. No. 19 at 17).
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 ...