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. 1].
2009, Petitioner Frank Enrique Lleras
(“Petitioner”) established Optimum Income
Property Investments, LLC, (“Optimum”) as a real
estate investment company. [Criminal Case. No.
3:15-cr-286-RJC (“CR”), Doc. 15, ¶¶ 1,
3 (Factual Basis)]. Petitioner was the managing partner and
promoted the company as buying distressed or foreclosed real
estate in Mecklenburg County and elsewhere, then reselling or
leasing the properties. [Id. at ¶ 3].
Petitioner, whose father-in-law was a doctor in the Dominican
Republic, induced more than 20 people from the Dominican
Republic medical community to invest about $3 million in his
scheme. [Id. at ¶ 4]. Petitioner told investors
that their funds would be used to purchase real estate. The
funds, however, were not invested as promised. [Id.
at ¶ 6]. Petitioner diverted investor money to other
Optimum debts, to purchase property titled to Optimum (rather
than to individual investors), to other business ventures,
and to support Petitioner's personal lifestyle.
[Id.] Petitioner attempted to conceal his fraud by
providing investors with fabricated deeds, sham real estate
tax bill receipts, and bogus monthly portfolio statements
that showed interest gains on their investments.
November 2014, Petitioner's scheme was revealed when
several investors traveled to Charlotte, North Carolina, to
check on their bank accounts and real estate. They were
informed by the bank that, contrary to the statements
provided by Petitioner, their bank accounts had little to no
funds. [CR Doc. 1 at 5]. Similarly, Mecklenburg County
informed the investors that many of the property deeds and
tax bills provided to them by Petitioner were fraudulent.
[Id.]. After several investors confronted Petitioner
about the theft of their investment money, Petitioner
admitted wrongdoing and that he owed them money.
[Id. at 5, 8; Doc. 1 at 2-3].
was indicted by a grand jury and charged with aiding and
abetting securities fraud in violation of 15 U.S.C. §
78j(b), 78ff; 17 C.F.R. 240.10b-5; and 18 U.S.C. § 2
(Count One); and aiding and abetting wire fraud in violation
of 18 U.S.C. § 1343 (Count Two). [CR Doc. 11].
Petitioner retained Samuel J. Randall, IV, to represent him
and Randall appeared on his behalf. [CR Doc. 5; Doc. 3-1 at
¶ 5]. After Petitioner and Randall reviewed the facts of
the case and discussed the discovery, as well as the possible
sentences that Petitioner might receive if Petitioner
proceeded to trial or if he pleaded guilty, Petitioner agreed
to plead guilty to both charges. [CR Doc. 14 at ¶
1; Doc. 3-1 at ¶¶ 9-10, 16].
agreeing to the plea, Petitioner acknowledged that he was
aware of the 20-years maximum sentence on each count, that
the Court could impose any sentence up to this maximum, that
the Court had not yet determined the sentence to be imposed,
and that any estimate of the sentence was a prediction,
rather than a promise. [CR Doc. 14 (Plea Agreement) at ¶
5]. The parties jointly recommended that the Court find that
the amount of loss reasonably foreseeable to Petitioner was
over $2.9 million and that the applicable adjusted offense
level was 27 (which included a base offense level of 7, a
16-level enhancement for the amount of loss, a two-level
enhancement for use of sophisticated means). [Id at
¶ 6]. The Government agreed that Petitioner's plea
was timely for purposes of receiving a downward adjustment
for acceptance of responsibility. [Id]. The parties
also agreed not to recommend any other enhancement or
reductions, that a sentence within the applicable guideline
range was appropriate, and that they would not seek a
departure or variance. [Id]. Petitioner agreed to
pay full restitution to all victims directly or indirectly
harmed by his relevant conduct. [Id at ¶ 7]. As
part of the plea agreement, Petitioner admitted that he had
read and understood the factual basis and that the factual
basis could be used to determine the advisory guideline range
and sentence. [Id at ¶ 14]. Finally, Petitioner
agreed to waive the right to contest his conviction and
sentence on direct appeal or in any post-conviction
proceeding, except as to claims of ineffective assistance or
prosecutorial misconduct. [Id at ¶¶
plea hearing, the Government summarized the charges against
Petitioner, including the fact that each count carried a
maximum penalty of 20 years of imprisonment. [CR Doc. 35 at
3-4 (Plea Transcript)]. Petitioner agree that he fully
understood the charges, including the maximum penalties, that
he had discussed the Sentencing Guidelines with his attorney
and understood that his guideline range could not be
determined until after his presentence report had been
prepared, that he understood that he could be sentenced
higher or lower than the guideline range, and that he would
still be bound by his guilty plea even if he received a
higher sentence that he expected. [Id at 4-6].
Petitioner affirmed that he was guilty of both counts of the
indictment. [Id at 7]. The Government also
summarized the Plea Agreement, including the agreement that
the loss amount exceeded $2.9 million, that an adjusted
offense level of 27 applied, that the plea was timely made
for purposes of acceptance of responsibility, that the
parties would not recommend any other enhancements or
reductions, that neither party would seek a departure or
variance from the guideline range, and that Petitioner was
waiving his right to appeal his conviction on any grounds
except ineffective assistance or prosecutorial misconduct.
[Id. at 8]. Petitioner stated that he understood and
agreed to these terms. [Id. at 9]. The Court also
confirmed that Petitioner understood that he was waiving his
right to appeal and to pursue post-conviction relief.
[Id. at 9]. Petitioner testified that he had read,
understood, and agreed with the factual basis. [Id.
at 9-10]. Petitioner also stated that no one had threatened,
intimidated, or forced him to plead guilty, and, other than
the terms of his plea agreement, no one had made him any
promises of leniency or a light sentence to induce him to
plead guilty. [Id. at 10]. Petitioner affirmed that
he had had sufficient time to discuss any possible defenses
with his attorney and that he was satisfied with his
attorney's services. [Id.]. Thereafter, the
magistrate judge accepted Petitioner's guilty plea,
finding that it was knowingly and voluntarily made.
[Id. at 11].
probation officer prepared a presentence report,
recommending, as in the plea agreement, that Petitioner be
sentenced at a base offense level of 7, that he receive a
16-level enhancement based on a loss amount between $1.5
million and $3.5 million, that he receive a two-level
enhancement for use of sophisticated means, and that he
receive a two-level enhancement because the offense involved
more than ten victims. [CR Doc. 21 (Presentence Report (PSR))
at ¶¶ 24-27. Allowing a three-level reduction for
acceptance of responsibility, Petitioner's total offense
level as 24. [Id. at ¶¶ 33-35]. While
Petitioner had a considerable number of moving violations in
his past, the probation officer determined that his criminal
history category was I. [Id. at ¶¶ 38-51].
Petitioner's advisory guideline range was 51 to 63 months
of imprisonment. [Id. at ¶ 75]. The probation
officer also noted that Petitioner had suffered from a
substance abuse problem and that Petitioner had indicated
that he would benefit from substance abuse treatment while
incarcerated. [Id. at ¶ 64].
sentencing hearing, the Court adopted the magistrate
judge's findings that Petitioner's guilty plea was
knowingly and voluntarily made, noting that there had been no
objections to this finding. [CR Doc. 34 at 2-3]. Petitioner
stated that he had read and discussed the PSR with his
attorney and that he understood it. [Id. at 3].
Defense counsel requested a sentence for Petitioner at the
bottom of the guideline range. [Id. at 9]. Defense
counsel argued that, while Petitioner had been initially
successful in buying, rehabilitating, and selling properties,
he eventually started losing money and did not want to admit
his failure. [Id. at 7]. To cover up his failures,
he continued making deals, perpetuating them with false
documents. [Id.]. Counsel argued that Petitioner
attempted to make restitution to some investors before he was
charged, and that Petitioner had been working while on
release to continue making restitution. [Id. at
7-8]. Counsel argued that Petitioner had learned from his
mistakes and was now “a much different person.”
[Id. at 8-9]. Counsel also requested that the Court
recommend drug or alcohol treatment for Petitioner, as well
as education or vocational programs. [Id. at 8].
Counsel also noted that he had submitted letters to the Court
regarding Petitioner's character. [Id. at 9].
Petitioner allocated, stating that he was truly sorry and
that he never intended to take anyone's money.
[Id. at 10]. Petitioner requested to self-report and
stated that he wanted to be able to return to society and
make restitution. [Id. at 7]. The Government
requested a sentence within the guideline range and presented
testimony from two victims who testified to the hardship
suffered as a result of Petitioner's fraud. [Id.
Court imposed a 60-month sentence, noting that
Petitioner's prior convictions, while not serious,
reflected a lack of respect for the law. [Id. at
15-16]. The Court also cited the serious nature of the Ponzi
scheme, the impact on the community, Petitioner's
numerous “reprehensible” efforts to deceive, the
length of his activity, and the need for deterrence.
[Id. at 15-17]. The Court noted Petitioner's
substance abuse problems and recommended that he be allowed
to participate in any available treatment programs while
incarcerated. [Id. at 17]. The Court advised
Petitioner of his right to appeal, the deadline for doing so,
that he could appeal at no costs. The Court allowed
Petitioner to self-report. [Id. at 21, 23].
did not appeal nor request counsel to do so. [See
Doc. 1 at 13; Doc. 3-1 at ¶ 20]. Petitioner timely filed
the present motion to vacate in June 2017, in which he argues
that his counsel was ineffective for three reasons: (1) for
failing to properly inform Petitioner of the consequences of
the guilty plea, (2) for failing to object to the use of
relevant conduct at sentencing, and (3) for failing to
adequately consult with Petitioner about Petitioner's
right to appeal or filing a notice of appeal. [Doc. 1]. The
Government filed its response on June 22, 2018. [Doc. 3].
STANDARD OF REVIEW
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. After examining the record in this matter, the Court
finds that the arguments presented by Petitioner can be
resolved without an ...