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Godwin v. United States

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

February 12, 2019



          Martin Reidinger, 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. 1].

         I. BACKGROUND

         Petitioner was charged in the underlying criminal case with three counts of bank fraud, in violation of 18 U.S.C. § 1344 (Counts One through Three); three counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A (Counts Four through Six); three counts of uttering a forged security, in violation of 18 U.S.C. § 513(a) (Counts Seven through Nine); and one count of receipt/possession of stolen mail, in violation of 18 U.S.C. § 1708 (Count Ten). [Criminal Case No. 1:17-cr-00008 (“CR”), Doc. 1: Bill of Indictment].

         Petitioner pled guilty pursuant to a written Plea Agreement to Counts One through Six and Ten. [CR Doc. 9: Plea Agreement]. By signing the written Plea Agreement, Petitioner expressly waived any appellate and post-conviction rights except for claims of ineffective assistance of counsel or prosecutorial misconduct. [Id. at 5].

         Petitioner appeared before a Magistrate Judge on April 5, 2017 for a hearing pursuant to Rule 11 of the Federal Rules of Criminal Procedure. Petitioner stated during the hearing that she understood that she was under oath; that she had reviewed the Indictment and Plea Agreement with her attorney; that she fully understood the charges including the maximum and minimum penalties; that she understood each element of the charged offenses; that she understood the rights she was waiving by pleading guilty; that she had discussed with her attorney how the sentencing guidelines may apply in her case; and that she understood that her sentence may be greater or less than the guidelines range. She further admitted that she understood the terms of the plea agreement, including the appellate and post-conviction waiver provision, and she confirmed that her plea was voluntary. [CR Doc. 11].

         The probation office prepared a Presentence Investigation Report (“PSR”) in advance of sentencing. In the PSR, the probation officer grouped Counts One through Three and Ten together and recommended a base offense level of seven. [CR Doc. 17 at ¶ 13]. Two levels were added because the offense involved ten or more victims [id. at ¶ 14], and two levels were deducted for acceptance of responsibility, resulting in a total offense level of seven [id. at ¶¶ 18, 20, 21]. Counts (4) through (6) were grouped together, and the recommended term of imprisonment for that group was the sentence required by statute. [Id. at ¶ 22].

         The probation officer calculated three criminal history points based on Petitioner's prior convictions for conspiracy to commit offenses against the United States, uttering counterfeit and forged securities and aiding and abetting, aggravated identity theft and aiding and abetting, and bank fraud and aiding and abetting. [Id. at ¶¶ 43, 44]. Two points were added because Petitioner committed the offense while under a criminal justice sentence for the offenses in ¶ 43. [Id. at ¶ 45]. This resulted in a total criminal history score of five and a criminal history category of III. [Id. at ¶ 46]. The resulting guidelines range for Counts One through Three and Ten was four to ten months' imprisonment, plus mandatory consecutive two-year sentences for each of Counts Four through Six. [Id. at ¶¶ 105-06].

         The Court adopted the PSR without change. The issue at sentencing was whether the mandatory two-year sentences for the § 1028A counts should be concurrent or consecutive to one another. The statute requires that a § 1028A sentence be imposed consecutively to other counts, but allows that multiple § 1028A sentences may be imposed concurrently with each other. However, the Court found that imposing the sentences concurrently failed to reflect the seriousness of the offense, to afford adequate deterrence, and to protect the public from Petitioner, noting that Petitioner's offenses were very similar to crimes previously committed by her. [CR Doc. 23]. In a Judgment entered December 22, 2017, the Court sentenced Petitioner to ten months' imprisonment for each of Counts One through Three and Ten, to be served concurrently, and 24 months' imprisonment for each of Counts Four through Six, each to be consecutive to each other and the other counts, resulting in a total of 82 months' imprisonment. [1:17-cr-8, Doc. No. 22]. Petitioner did not appeal.

         Petitioner filed the instant § 2255 Motion to Vacate on January 1, 2019. [Doc. 1].


         A federal prisoner claiming that her “sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

         Rule 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. In many cases, an evidentiary hearing is required to determine whether or not counsel was ineffective for misadvising a petitioner about a plea offer. See generally United States v. Witherspoon, 231 F.3d 923, 926- 27 (4th Cir. 2000); 28 U.S.C.A. § 2255(b). 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).

         III. ...

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