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Lleras v. United States

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

June 30, 2019




         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

         In 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. [Id.]

         In 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].

         Petitioner 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].

         In 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 ¶¶ 18-19].

         At the 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].

         A 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].

         At the 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. at 12-15].

         This 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].

         Petitioner 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].


         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. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an ...

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