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Hernandez v. United States

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

July 11, 2018



          Robert J. Conrad, Jr. JE 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. 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).

         I. BACKGROUND

         Petitioner 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).

         Petitioner 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).

         A Rule 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 following transpired:

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 plea agreement.
Is that correct?

(3:14-cr-82, Doc. No. 108 at 2-3).

         Petitioner 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).

         Petitioner 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).

         The 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).

         Counsel 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).

         Petitioner 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).

         Counsel 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).

         Petitioner 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).

         The 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 28-29).

         The 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).

         Petitioner 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. 5).

         Petitioner 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 ...

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