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. Nos. 1, 11); see also
(Doc. No. 3) (supporting memorandum). Petitioner has also
filed several letters in which he seeks a sentence reduction.
(Doc. Nos. 6, 7). The Government has filed a Response
opposing relief. (Doc. No. 4).
was charged along with seven co-defendants in a sweepstakes
telemarketing fraud conspiracy in Costa Rica. The charges
pertaining to Petitioner are: Count (1), conspiracy to commit
wire fraud; Counts (2)-(11), wire fraud; Count (12),
conspiracy to commit money laundering; and Counts (13)-(21),
money laundering. (3:14-cr-82, Doc. No. 17).
pled guilty pursuant to a written plea agreement to Counts
(1), (11) and (12), in exchange for the Government's
dismissal of the remaining counts. (3:14-cr-82, Doc. No. 32
at 1). The written plea agreement sets forth Petitioner's
sentencing exposure for each count and states that the
sentence has not yet been determined and the Court will
consider the advisory sentencing guidelines. (3:14-cr-82,
Doc. No. 32 at 2-3). The agreement states that the parties
disagree on several sentencing factors including the loss
amount that was reasonably foreseeable to Petitioner.
(3:14-cr-82, Doc. No. 32 at 4). Petitioner agreed to
“pay full restitution in an amount determined by the
Court” in an amount reflecting Petitioner's total
offense conduct that is not limited to the counts of
conviction, the restitution would be mandatory, and would be
joint and several with that of his co-conspirators.
(3:14-cr-82, Doc. No. 32 at 8). Petitioner reserve the right
to dispute the restitution amount recommended by the
Government of $4, 680, 947.98. (3:14-cr-82, Doc. No. 32 at
8). Petitioner stipulated that there is a factual basis for
the plea and that the Court may use the offense conduct set
forth in the written Factual Basis to establish a factual
basis for the plea, except as to facts to which Petitioner
specifically objected. (3:14-cr-82, Doc. No. 10). Petitioner
agreed to waive his right to withdraw the plea once the Court
accepted it, the rights to be tried by a jury, to be assisted
by an attorney at trial, to confront and cross-examine
witnesses, and not to be compelled to incriminate himself.
(3:14-cr-82, Doc. No. 32 at 11). Petitioner and his counsel
warranted that they discussed Petitioner's appellate and
post-conviction rights, whether or not there are potential
issues for appeal or post-conviction action, and the possible
impact of any such issue on the desirability of Petitioner
entering into the plea agreement, and Petitioner waived all
such rights to contest the conviction and/or sentence within
the statutory maximum except for claims of ineffective
assistance of counsel and prosecutorial misconduct.
(3:14-cr-82, Doc. No. 32 at 11-12). Petitioner waived all
rights to request or receive records from any United States
department or agency pertaining to the investigation or
prosecution of the case. (3:14-cr-82, Doc. No. 32 at 12).
Petitioner stipulated that any sentence within the applicable
guidelines range is per se reasonable but reserved his right
to file a “variance motion” pursuant to 18 U.S.C.
§ 3553(a). (3:14-cr-82, Doc. No. 32 at 12). The
agreement specifically addresses immigration, stating that
“Defendant recognizes that pleading guilty may have
consequences with respect to his immigration status if he is
not a citizen of the United States…. [and] because
defendant is pleading guilty to fraud charges, removal is
presumptively mandatory….” (3:14-cr-82, Doc. No.
32 at 16). Despite this, “Defendant nevertheless
affirm[ed] that he wants to plead guilty regardless of any
immigration consequences that the plea may entail, even if
the consequence is his automatic removal from the United
States.” (3:14-cr-82, Doc. No. 32 at 16).
11 hearing came before Magistrate Judge David Keesler on
April 9, 2015. (3:14-cr-82, Doc. No. 108). When Judge Keesler
asked whether Petitioner was ready to enter his plea, the
MR. GELETY: Judge, he is. We have taken a lot of time going
over this. We probably have seven or eight different versions
of the plea agreement as we refined it talking about those
things with Mr. Hernandez. We've explained it. We've
read it together. We've read it to each other. We've
seen the differences. And unfortunately there is no choice
number three. He understands that either we're going to
go to trial or we're going to do this plea agreement. And
I can say that he understands and he's ready to do the
Is that correct?
THE DEFENDANT: Yes, sir.
(3:14-cr-82, Doc. No. 108 at 2-3).
stated in open court during a lengthy and thorough colloquy
that his plea was knowingly and voluntarily entered.
(3:14-cr-82, Doc. No. 108 at 4-12, 21-23). Petitioner
acknowledged the rights he was waiving by pleading guilty
including his possible deportation from the United States.
(3:14-cr-82, Doc. No. 108 at 12). He agreed that he discussed
the sentencing guidelines with counsel, that the Court would
determine the sentence after the PSR was prepared, that the
Court might not follow the Government's recommendation
with regards to the sentence, that he may receive a sentence
that is higher or lower than the guidelines, and that the
Court may order restitution. (3:14-cr-82, Doc. No. 108 at
12-16). He went over Counts (1), (11) and (12) with counsel
carefully, understood them, and is guilty of those crimes.
(3:14-cr-82, Doc. No. 108 at 16). He went over the plea
agreement carefully with his lawyers, understood it, and
agreed with its terms. (3:14-cr-82, Doc. No. 108 at 21). He
understood and was waiving the rights set forth in the plea
agreement including his appellate and collateral review
rights. (3:14-cr-82, Doc. No. 108 at 22). He also read and
understood the written factual basis, reviewed it with
counsel, and agreed with what it said. (3:14-cr-82, Doc. No.
108 at 23). Nobody threatened, intimidated, or forced him to
plead guilty. Other than the terms of his plea agreement,
nobody made him any promises of “leniency or a light
sentence” to get him to plead guilty. (3:14-cr-82, Doc.
No. 108 at 23). He had enough time to discuss any possible
defenses with counsel, was satisfied with his lawyer's
services, and did not have anything else to say about
counsel's services. (3:14-cr-82, Doc. No. 108 at 23). He
understood all parts of the proceeding, still wished to plead
guilty, and had no questions or statements at that time.
(3:14-cr-82, Doc. No. 108 at 24).
admitted in the Factual Basis that, beginning around January
2008, and continuing through September 2014, he
“participated in various sweepstakes telemarketing call
centers located in Costa Rica for the purpose of defrauding
U.S. residents by convincing them to pay money in an effort
to claim a fictitious sweepstakes prize.” (3:14-cr-82,
Doc. No. 33). He reserved the right to contest the number of
victims, 50, and the amount of the fraud, $4, 680, 947.98,
asserted by the Government. (3:14-cr-82, Doc. No. 33 at 3).
Petitioner admitted the criminal activity charged in Counts
(1), (11), and (12), but reserved the right to contest his
participation in the additional counts. (3:14-cr-82, Doc. No.
33 at 4).
Presentence Investigation Report (“PSR”)
calculated the offense level using Count (12) and the base
offense level of seven for wire fraud. (3:14-cr-82, Doc. No.
55 at ¶ 37). Eighteen levels were added because the loss
amount was more than $2, 500, 000 but less than $7, 000, 000,
four levels were added because the offense involved more than
50 victims, two levels were added because the offense
involved misrepresentation that the defendant and others were
acting on behalf of a government agency, and two levels were
applied because a substantial portion of the sweepstakes
scheme was committed from outside the United States,
resulting in a base offense level of 33. (3:14-cr-82, Doc.
No. 55 at ¶ 30). Two levels were added because
Petitioner was convicted under 18 U.S.C. § 1956.
(3:14-cr-82, Doc. No. 55 at ¶ 31). Two more levels were
added because the majority of the victims were elderly.
(3:14-cr-82, Doc. No. 55 at ¶ 32). Two levels were
deducted because Petitioner was a minor participant in the
criminal activity, and three more levels were deducted for
acceptance of responsibility, resulting in a total offense
level of 32. (3:14-cr-82, Doc. No. 55 at ¶¶ 33,
38-40). Petitioner had zero criminal history points and a
criminal history category of I. (3:14-cr-82, Doc. No. 55 at
¶ 45). The resulting guidelines range was 121 to 151
months' imprisonment. (3:14-cr-82, Doc. No. 55 at ¶
76). The Restitution section states that, in accordance with
U.S. Sentencing Guidelines § 5E1.1, restitution shall be
ordered. (3:14-cr-82, Doc. No. 55 at ¶ 89).
filed objections to, inter alia: the elderly victim
enhancement; the loss amount of $4, 680, 947.98 and resultant
18-level enhancement; and the restitution amount of $4, 082,
328.27. (3:14-cr-82, Doc. No. 51). Counsel argued that
Petitioner should receive a downward variance to avoid a
sentencing disparity and due to his cooperation. (3:14-cr-82,
Doc. No. 51).
stated at the sentencing hearing on February 12, 2016, that
he had a chance to read the presentence report, understood
it, and had enough time to go over it with his attorney.
(3:14-cr-82, Doc. No. 109 at 2-3). Defense counsel withdrew
all objections to the PSR in light of the Government's
5K1.1 Motion seeking a 50% sentence reduction. (3:14-cr-82,
Doc. No. 109 at 3); see (3:14-cr-82, Doc. No. 78).
argued that the Court should grant a further downward
departure or variance because Petitioner was “one of
the saddest sacks that [he had] run across.”
(3:14-cr-82, Doc. No. 109 at 6). According to counsel,
Petitioner “[a]dmitted his involvement the same day he
was arrested, ” had completed a 45-day drug program and
other educational programs in prison, became active in
religious study, exhibited exceptional remorse, a
co-defendant was sentenced to 84 months' imprisonment,
Petitioner had dual diagnoses of addiction and depression,
and had exceptional family circumstances because his mother
was ill with cancer. (3:14-cr-82, Doc. No. 109 at 8-12).
Counsel requested a drug program, halfway house, “any
anything else that the Court could squeeze in” on the
outside chance that Petitioner could complete his sentence
and have the hope of seeing his mother again. (3:14-cr-82,
Doc. No. 109 at 11-12).
chose to address the Court, stating:
THE DEFENDANT: I - I just want to start out by saying that I
messed up really bad. I can't believe I did all the
stuff. I'm so sorry. I took advantage of people. I lied.
I took their savings, their - their livelihood, their
mortgage payment, their bills. I took money for their food. I
was homeless and I known what it is to be hungry and I hated
it. I made those people hungry. I hate myself. Just look what
I did. I'm asking you to forgive me because I'm
having a hard time to forgive myself. I hurt these people. I
can't help but think that the reason that my mom has
cancer is because of the things that I've done. I mean, I
made her sick.
… I ended up on drugs and wasting my intelligence, my
gifts that God has given me. Instead of using those gifts to
better myself, I hurt people. I repent. I repent.
Now that I'm off drugs when I look back and I see
what a rotten person I was, a parasite of society, a menace.
I feel like I must have been possessed by Satan
himself. I never want to see or feel this way again.
I never want to see this happen to me again.
… I'm going to spend the rest of my life trying to
make up for this mess I've made. I can't even believe
that I dealt with these people. I'm on a list of
scum and losers. I was a scum. That's on me. I
got to do something.
I was out there, too much of a coward even to rob somebody or
to steal somebody. I hid behind a phone. I hid behind as a
coward, a thief. The word says letting he who steals, steal
no longer. I just want to make this all for the glory of God
and then hopefully I'll be able to help people out. And I
just want to thank you. And once again, I'm so sorry to
even be here today.
(3:14-cr-82, Doc. No. 109 at 12-14) (emphasis added).
Court granted the Government's 5K1.1 motion, sentenced
Petitioner to 60 months' imprisonment for each count,
concurrent, (3:14-cr-82, Doc. No. 109 at 24), and ordered
restitution in the amount of $4, 082, 328.27, (3:14-cr-82,
Doc. No. 109 at 25). The Court noted Petitioner's history
of mental health issues and recommended that he be allowed to
participate in any available mental health treatment program.
(3:14-cr-82, Doc. No. 109 at 25-26). The Court recommended
that Petitioner be located in South Florida in a facility
that would accommodate a drug program so he could attempt to
further mitigate his sentence. (3:14-cr-82, Doc. No. 109 at
Court advised Petitioner of his right to file a notice of
appeal despite the waiver in his plea agreement, recommended
that he talk to counsel about his appeal rights, and advised
him that he could apply for leave to file a notice of appeal
without cost and, if he requested, with the Clerk of
Court's assistance. (3:14-cr-82, Doc. No. 109 at 29-30).
filed the instant pro se § 2255 Motion to
Vacate on January 23, 2017. (Doc. Nos. 1, 11); see
also (Doc. No. 3) (supporting memorandum). He argues
(renumbered): (1) the Court erred with regards to sentencing
by ordering restitution of $4, 082, 328.27 against a
Petitioner even though he is indigent and a minimal
participant, and by calculating Petitioner's sentence
based on that inflated loss amount and other inapplicable
enhancements; (2) the Court's recommendations that
Petitioner participate in a drug treatment program and
halfway house are not being honored; (3) Petitioner's
guilty plea was involuntary; and (4) counsel was ineffective:
(a) with regards to the guilty plea, (b) at sentencing; and
(c) with regards to a direct appeal.The Government filed a
Response arguing that his attack on the restitution order is
waived, non-cognizable, and meritless, and that his claims of
ineffective assistance of counsel are meritless. (Doc. No.
has also filed letters that reiterate his § 2255 claims
and request a sentence reduction of at least six months based
on his rehabilitative efforts in prison and his mother's
terminal medical ...