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United States v. Roman

United States District Court, W.D. Louisiana, Shreveport Division

February 1, 2018

UNITED STATES OF AMERICA
v.
ALCIDES ROMAN (01)

          MARK L. HORNSBY, MAG. JUDGE

          MEMORANDUM RULING & ORDER

          DONALD E. WALTER, UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 [Docs. ##37, 41], filed by Defendant-Petitioner Alcides Roman (hereinafter, "Petitioner" or "Roman"). The Government filed a response [Doc. #43]. Petitioner sought, and was granted, leave to file a reply [Docs. ## 44, 45], but no reply was filed. For the following reasons, the motion is DENIED.[1]

         BACKGROUND

         On March 28, 2012, a federal grand jury in the Western District of Louisiana returned a 2-count indictment charging Petitioner, Alcides Roman d/b/a Amstar Investment Properties, with two counts of attempt and conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349, [Doc. #1]. On September 20, 2012, pursuant to a written plea agreement, Petitioner pled guilty to Count One of the indictment. [Doc. #22]. A presentence investigation report ("PSR") was prepared on November 15, 2012, and supplemented with additional victim impact information in December 2012. [Doc. #23].

         While living in Florida and doing business as Amstar Investment Properties, Petitioner purported to have the capability of procuring business loans in exchange for fees. [Doc. #31, pp. 11-14]. In November 2007, Petitioner procured wire transfers of money from two different advanced fee contracts, the first of which involved transfers to and from the state of Florida and Springhill, Louisiana, within the Western District of Louisiana. [Doc. #23, p. 4, ¶¶ 6-7], Petitioner procured, from victim Ed Kenyan, a "letter of commitment" and a $200, 000 wire transfer, in exchange for Petitioner seeking and procuring a $26 million business loan on behalf of Kenyan. Petitioner represented to Kenyan that $50, 000 constituted a nonrefundable, advance fee, but that the remaining $150, 000 was refundable in the event Petitioner failed to procure a loan. The second contract involved victims in Texas, who wired a $140, 000 "retainer, " of which $40, 000 was nonrefundable, in exchange for similar loan procurement services. Petitioner never procured loans on behalf of these victims, nor did he use the money in any efforts to procure such loans or refund any amount in lieu of procuring the loans. [Doc. #31, p. 14; Doc. #23, p. 4, ¶¶ 7-8]

         Using the United States Sentencing Guidelines ("USSG") Manual effective November 1, 2012, the PSR calculated Petitioner's offense level, as follows. [Doc. #23, p. 5, ¶12]. Petitioner's base offense level under U.S.S.G. § 2B 1.1 (a)(1), for a conviction under 18 U.S.C. § 1343, was 7. Id. at ¶l 3. Because the intended loss attributed to Petitioner was $340, 000, he received a 12-level increase, pursuant to U.S.S.G. § 2B 1.1 (b)(1)(G); however, Petitioner received the full 3-point reduction for acceptance of responsibility, under U.S.S.G. § 3El.l(a), (b), resulting in a total offense level of 16. Id. at ¶¶ 13-14, 19. Although Petitioner had four prior convictions, only one criminal history point was assessed, resulting in a criminal history category off Id. at p. 7, ¶33. The PSR also acknowledged that Petitioner had engaged in other criminal conduct, similar to that underlying the instant offense of conviction, and was the subject of several other fraud investigations, outside of the jurisdiction of this Court. Id. at p. 6, ¶23.

         On January 14, 2013, Petitioner was sentenced by the Honorable Judge Tom Stagg to 41 months' imprisonment, followed by three years' supervised release, and ordered to pay restitution in the amount of $340, 000. [Doc. #26]. Judge Stagg arrived at this sentence after considering the factors set forth in 18 U.S.C. § 35');">3553(a), and determining that the advisory guideline range of 21 to 27 months yielded an "inadequate punishment." [Doc. #25; Doc. #32');">32');">32');">32, p. 12, II. 17-20]. He therefore added four levels, resulting in a total offense level of 20 (and a guideline range of 33 to 41 months). [Id. at 11. 20-23]. Petitioner's counsel objected to the sentence. [Doc. 32');">32');">32');">32, p. 16, 11. 7-9]. Petitioner appealed his sentence to the United States Court of Appeals for the Fifth Circuit, arguing that the sentence was substantively unreasonable. The Fifth Circuit affirmed Petitioner's sentence, finding that the sentence was neither plainly erroneous nor unreasonable. [Doc. #35');">35]. The decision was issued as mandate on November 11, 2013. Id. The instant motion, alleging ineffective assistance of counsel, was signed and dated by Petitioner on January 14, and filed in this Court on January 20, 2015. [Doc. #37], LAW & ANALYSIS

         Under 28 U.S.C. § 2255, a prisoner may move to vacate, set aside, or correct a sentence imposed by a federal court when; (1) "the sentence was imposed in violation of the Constitution or laws of the United States[;]" (2) "the court was without jurisdiction to impose such sentence[;]" (3) "the sentence was in excess of the maximum authorized by law[;]" or (4) the ' The sentencing judge orally described the sentence as an upward "departure, " while the statement of reasons indicates that the sentence was a "variance." [Doc. #35');">35, p. 3');">p. 3; see Doc. #32');">32');">32');">32, p. 12, 11. 17-23 (sentencing transcript); Doc. #25, p. 3');">p. 3 (statement of reasons)]. However, as recognized by the Fifth Circuit, "[t]he precise characterization is not significant because the sentence is neither plainly erroneous nor unreasonable." Id. sentence "is otherwise subject to collateral attack[, ]" 28 U.S.C, § 2255(a); United States v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Young, 77 Fed.Appx. 708, 709 (5th Cir. 2003) (citing United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)).

         "As the Supreme Court holds, '[h]abeas review is an extraordinary remedy and will not be allowed to do service for an appeal.'" United States v. Cooper, 548 Fed.Appx. 114, 115 (5th Cir. 2013) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted)). Rather, after a defendant is convicted and exhausts the right to appeal, a court is "entitled to presume that the defendant stands fairly and finally convicted." United States v. Shaid, 937 F.2d 228, 231-32');">32');">32');">32 (5th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152, 164 (1982)).

         Courts may consider claims for ineffective assistance of counsel brought for the first time in a § 2255 motion. See United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996). To successfully state a claim of ineffective assistance of counsel, the prisoner must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to establish either prong of the Strickland test will result in a finding that counsel's performance was constitutionally effective. Id., at 696; see also Tucker v. Johnson, 115 F.3d 276, 280 (5th Cir. 1997).

         In determining whether counsel's performance is deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. at 691. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id.

         Here, Petitioner claims that his counsel was ineffective during the sentencing phase, for failing to investigate the facts and circumstances surrounding Petitioner's "prior criminal and litigation history, and ... business dealings." [Doc. #37, p. 4; Doc. #41, pp. 16-25].[2] Petitioner believes it to be noteworthy that, "of the 34 cases against him" at the time he was sentenced,

21 relate[d] to domestic relations, foreclosure on personal mortgages, small claims cases where less than $100.00 is at issue, and traffic infractions. Of the 13 cases related to Roman's business or personal criminal background, eight were breach of contract actions filed from November 2006 through 2009, and one was an 'Other' civil ...

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