United States District Court, W.D. Louisiana, Shreveport Division
L. HORNSBY, MAG. JUDGE
MEMORANDUM RULING & ORDER
E. WALTER, UNITED STATES DISTRICT JUDGE.
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
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].
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]
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.
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 &
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.
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)).
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.
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.
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]. Petitioner believes it to be noteworthy
that, "of the 34 cases against him" at the time he
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 ...