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United States v. Barren

November 21, 2008

UNITED STATES OF AMERICA
v.
DEMETRIUS BARREN,



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Petitioner Demetrius Barren ("Barren") moved this court pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons explained below, that motion is denied.

Background

On July 31, 2002, a grand jury returned a five-count indictment against Barren, Carl Miller, Julian Bishop, and Kenneth Washington alleging that the defendants participated in a scheme to defraud residential mortgage lenders and charging them with multiple counts of mail and wire fraud.

Barren, a real estate investor, purchased dilapidated houses with the intent of immediately reselling them for a profit. Barren paid real estate appraisers to prepare fraudulent appraisals that inflated the true value of the dilapidated properties Barren had purchased.

Barren then sought individuals who would buy the properties at the inflated prices. Barren enticed potential buyers by promising to pay for the rehabilitation of the properties and to pay the first few mortgage payments until the properties began generating rental income. Barren also promised the buyers that they would not have to make a down payment or pay closing costs. Based on these representations, Barren persuaded numerous individuals to buy properties from him, often persuading buyers to purchase two or three properties at a time.

The evidence at trial showed that Barren also made false representations on his real estate contracts with buyers. Barren caused these fraudulent real estate contracts to be prepared in order to mislead mortgage lending companies into believing that buyers had made down payments and were financially qualified for mortgage loans. Barren provided buyers with money to deposit into their bank accounts to make it appear to lenders that they had sufficient funds to qualify for mortgage loans. After Barren's money was deposited into the buyers' bank accounts, bank employees were asked to sign forms verifying the amounts on deposit in the buyers' accounts. After the verifications of deposit were obtained, Barren directed the buyers to withdraw the money and repay him.

The evidence at trial also showed that Barren referred buyers to certain mortgage brokers, including some of his co-defendants, to procure mortgage loans for buyers. These brokers located mortgage lending companies to finance the purchase of the properties at the inflated prices sought by Barren. The brokers submitted false and fraudulent documents to these loan companies, including inflated appraisal reports, false verifications of deposit, fabricated employment records, and fraudulent loan applications. As a result of this scheme, many buyers defaulted on their loans, thereby causing losses to the lenders.

On May 20, 2005, a jury convicted Barren of mail and wire fraud charges stemming from his participation in the mortgage fraud scheme. At sentencing, the court determined the base offense level under the sentencing guidelines to be 6, pursuant to USSG § 2F1.1. The court determined that the loss amount attributable to Barren was $808, 710, and therefore increased the base offense level by 11 because the loss amount was greater than $800,000, pursuant to USSG § 2F1.1(b)(1)(L). The court also increased the offense level by 4 levels based on Barren's role in the offense and 2 levels because the offense involved more than minimal planning and a scheme to defraud more than one victim. USSG § 2F1.1(b)(2); § 3B1.1(a). The resulting combined offense level was 23. Barren was in criminal history category II, resulting in a guideline sentencing range of 51 to 63 months imprisonment. On September 22, 2005, the court sentenced Barren to 51 months in prison and ordered that he pay $860,983 in restitution to the victims of his crimes.

Barren appealed his conviction and sentence and appointed counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). On March 21, 2007, the Seventh Circuit granted counsel's motion and dismissed Barren's appeal. Barren now moves the court to reduce his prison sentence and the amount of restitution ordered by the court, arguing that both were the result of ineffective assistance of counsel.

Analysis

Under 28 U.S.C. § 2255, federal prisoners can challenge the imposition or length of their detention if their conviction or sentence has been founded on an error that is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1995); 28 U.S.C. § 2255. If the court determines that any of these errors infected the judgment or sentence, the petitioner's conviction will be vacated or set aside, and the petitioner will be discharged, resentenced, or granted a new trial. Id.

Barren urges the court to grant his Section 2255 relief based on several claims of ineffective assistance of counsel. Having reviewed Barren's petition, the court reads his petition as presenting the following ineffective assistance of counsel claims: (1) trial counsel failed to object to the court's calculation of restitution and failed to present evidence that lenders resold properties; (2) trial counsel failed to object to the court's inclusion of certain lenders as "victims" for purposes of calculating restitution; and (3) trial counsel failed to object to the court's calculation of "loss" for purposes of the Federal Sentencing Guidelines and failed to present evidence that lenders resold properties.

To establish ineffective assistance of counsel, Barren must demonstrate: (1) that his attorney's performance was deficient; and (2) that such representation prejudiced his case. Precin v. United States, 23 F.3d 1215, 1218 (7th Cir. 1994) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The first element is satisfied by showing that counsel's performance fell below the "objective standard of reasonableness" guaranteed under the Sixth Amendment. Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting Strickland, 466 U.S. at 687). To satisfy the Strickland prejudice element, Barren ...


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