The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Petitioner, Terrance O. Robinson, was indicted on seven counts of bank fraud in case number 06-CR-20077 on December 7, 2006. On March 30, 2007, Petitioner entered a plea of guilty to all seven counts charged in the indictment. He was sentenced to 63 months in the Bureau of Prisons on July 20, 2007. The court's judgment was affirmed on appeal by the Seventh Circuit on August 7, 2008. Petitioner filed this pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) on November 17, 2008. Petitioner filed a Motion to Amend Pursuant to Federal Rule of Civil Procedure 15(c) (#3) which essentially clarified the claims raised in his earlier Motion (#1). For the following reasons, Petitioner's Motion to Amend (#3) is GRANTED and Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) is DENIED.
Petitioner was indicted on December 7, 2006, on seven counts of bank fraud. Specifically, Petitioner was charged with knowingly executing and attempting to execute a scheme to defraud the First Midwest Bank of Danville, Illinois, the deposits of which were insured by the Federal Deposit Insurance Corporation, and to obtain moneys and funds from the bank by fraudulent pretenses and representations. As part of this scheme, Petitioner, along with others obtained counterfeit checks via FedEx from Los Angeles, purportedly drawn on the accounts of legitimate entities, such as the Danville Family YMCA, the Office of the Circuit Clerk of Grundy County, Illinois, Goodwill of Los Angeles, and Norbrek LP. Petitioner and others made the checks payable to persons that they recruited to cash the counterfeit checks.
In furtherance of the scheme, Petitioner and others would drive the persons, along with the counterfeit checks, to First Midwest Bank branches in Danville to cash the checks, as well as to other Danville locations to cash the checks such as Main Package Liquor, the Currency Exchange, and Wal-Mart. The fraudulently obtained proceeds were then distributed among the scheme participants, including Petitioner. In total, the victims of Petitioner's scheme lost over $30,000. The indictment further alleged that Petitioner aided, abetted, counseled and induced others to pass and cash the following checks at First Midwest Bank, knowing full well that each check was counterfeit: #1- 1/12/06- Check #31613 in the amount of $968.43 drawn on Grundy County Circuit Clerk #2- 1/13/06- Check #31615 in the amount of $978.46 drawn on Grundy County Circuit Clerk #3- 1/17/06- Check #19879 in the amount of $987.67 drawn on Danville Family YMCA #4- 1/30/06- Check #32121 in the amount of $994.72 drawn on Grundy County Circuit Clerk #5- 1/30/06- Check #32128 in the amount of $996.83 drawn on Grundy County Circuit Clerk #6- 1/30/06- Check #22625 in the amount of $988.13 drawn on Danville Family YMCA #7 - 1/30/06- Check #22623 in the amount of $950.83 drawn on Danville Family YMCA
Each of those separate fraudulent checks were listed as a separate count, totaling 7 counts in the indictment of December 7, 2006. Each count was done in violation of 18 U.S.C. § 2, 1344(1) and (2). On March 30, 2007, Petitioner entered a plea of guilty at a change of plea hearing to all seven counts contained in the indictment. He was represented at the hearing (and subsequent sentencing) by CJA counsel Michael J. Zopf. Petitioner engaged in a lengthy colloquy with this court concerning the charges against him contained in the indictment. The court asked him if he understood that in the proposed plea agreement he would be entering a plea of guilty to all seven of the counts charged in the indictment charging him with bank fraud. Petitioner answered that he did. The court also found that the scheme Petitioner had entered into was one that would indicate a high level of sophistication and intelligence. Petitioner also agreed that he had ample opportunity to discuss the case and plea agreement with his attorney and was satisfied with his representation. Petitioner also affirmed that he was not being forced to plead guilty or that any promises had been made to him other than what was contained within the plea agreement. The court and Petitioner's attorney discussed what possible sentencing range Petitioner was looking at and it was believed that Petitioner could face anywhere from 46 to 63 months in the Bureau of Prisons. Petitioner stated he thought he would be looking at maybe two years in prison. The court then informed Petitioner that it, at the time of the change of plea hearing, could not with certainty say what Petitioner's sentence would be, but asked Petitioner if he was still willing to plead guilty, even though the sentence was of yet unknown length and may be higher than what he expected based on criminal history and other factors. Petitioner answered that it was still his desire to plead guilty. The court also noted that until the court arrives at the final calculations and makes determinations under the statute, Petitioner's final sentence is just an estimation that could go back and forth in years, either way. Knowing that, Petitioner stated he was still willing to plead guilty. Petitioner plead guilty to all seven counts charged in the indictment.
Petitioner was sentenced by this court on July 20, 2007. At sentencing, Petitioner's attorney addressed four unresolved objections Petitioner had with the Pre-Sentence Report (PSR). The first objection was withdrawn by attorney Zopf, which concerned whether the offense level is a 6 or 7, as that objection was based on an old guidelines manual. The second objection was whether the offenses charged in the indictment were accomplished through "sophisticated means" as alleged in the PSR and thus subjecting Petitioner to a 2-level upward enhancement in his total offense level. Zopf informed the court that Petitioner did not intend to testify and that he would be making a legal argument as to his objection.
The sophisticated means portion of the PSR was contained on page 14 in paragraph 39. It alleged that Petitioner placed a telephone number on at least one of the bogus checks, representing it as the legitimate phone number of the business holding the bank account. Petitioner arranged so that when someone dialed that number, it would be automatically linked to his personal cell phone, thus helping increase the chances of the bogus check scheme working. The PSR further alleged that on January 9, 2006, an employee of the Currency Exchange in Danville telephoned that number on a check purportedly drafted on the account of a business (Norbrek LP) at California Cal-Trust. The employee's call was forwarded to Petitioner, who vouched for the authenticity of the $3,900 bogus check. The PSR concluded that:
"This evidence shows the defendant had not only devised a scheme to defraud, but he also had a backup plan in place to facilitate the cashing of the bogus check(s) if they were questioned by representatives of the bank or currency exchange. This demonstrates an attention to detail and a level of sophistication not ordinarily seen in typical fraudulent check offenses. As the offense involved sophisticated means, a two-level upward adjustment is applied." U.S.S.G. § 2B1.1(b)(10)(I).
Attorney Zopf argued that under United States v. Harvey, 413 F.3d 850 (8th Cir. 2005), Petitioner's scheme was not accomplished by sophisticated means. Zopf compared the scheme in Harvey, where sophisticated means were found to have been used, to the scheme involving Petitioner. Zopf noted that in Harvey the defendants had new identification documents created, traveled to new offices, and generated false checks with valid routing numbers. That level of sophistication was not present in the instant case according to Zopf. Rather, Petitioner's scheme was "stupid" and thought up by a "bunch of crack heads" with no level of sophistication. Zopf continued that to suggest the scheme involved sophisticated means "shocked the conscience" as compared to other schemes the court has seen in the past.
The government countered that the checks produced by Petitioner mirrored the official looking checks of the Circuit Court of Grundy County, Illinois, of the Danville Family YMCA, and of Norbrek LP. The government also pointed to how Petitioner put the phone number on the check and once his phone was dialed falsely represented himself as an employee of Norbrek and claimed that the check was valid as it represented insurance proceeds. The court noted that in nine years it had never seen a case where someone has been willing to put a telephone number on the check and then act as the person who has drawn the check. The government also countered the argument made by Zopf that the conspiracy was one of a "bunch of crack heads" by stating that, according to the PSR, Petitioner is not a crack head, has never used illegal drugs, has a high school diploma, and 36 hours of college at Southern Illinois University. The government contended that Petitioner is the one who hatched the scheme and has prior convictions for unlawful use of a credit card and has experience with check-making software.
The court, citing the law in the Harvey case, found that Petitioner's actions involving the scheme, when taken as a whole, were strong evidence of a scheme that was extensively planned and executed with careful attention to detail. The court noted that the scheme was complex and unusual and appeared to be precisely the intricate conduct that the Sentencing Commission was contemplating with the sophisticated means enhancement. The court found that the PSR properly characterized the facts as fitting under the enhancement. The court concluded that the probation officer and government's position was correct by a preponderance of the evidence and applied the 2-level upward adjustment for sophisticated means.
The next objection filed by Petitioner was his objection to the 4-level increase as a leader or organizer of extensive criminal activity. In paragraph 42, on page 15 of the PSR, Petitioner was accused of recruiting co-conspirators to serve as drivers and passers of fraudulent checks. He warned participants of the potential legal risks they were taking by negotiating and passing the bogus checks. Petitioner arranged for the checks to be shipped to himself from California to locations in Danville, assuring his control over the checks. He purchased the typewriter seized from a co-conspirators residence that was used to complete certain checks. All of the proceeds from the fraudulent checks were turned over to Petitioner by the co-conspirators so that Petitioner could distribute the funds as he deemed appropriate. The PSR concluded:
"Therefore, defendant Robinson assumed the role of organizer or leader of this offense, which involved five or more participants, including those referenced in the offense conduct (see paragraph 20). A four-level upward adjustment is applied.
Attorney Zopf claimed that Petitioner and a co-conspirator, Cornelius Wilson, were co- equals. The only difference being that Wilson plead first and had the opportunity to talk about Petitioner. Zopf contended that were Petitioner allowed to speak first, he would have alleged the same things about Wilson and that Wilson was a supervisor. The government responded Petitioner was more culpable than Wilson in the overall scheme. The government cited the facts listed in the PSR paragraph 14, that show Petitioner controlled the bogus checks used and distributed the proceeds from the scheme. He organized the shipment of the bogus checks from California to Danville. It was Petitioner who was on the other end of the phone number on one of the bogus checks.
The court noted that the key facts were that Petitioner ended up with the money from the cashed fraudulent checks, it was Petitioner who distributed the proceeds, and it was Petitioner who handled the bogus phone number as a representative of Norbrek LP. The court found that it was not just by a preponderance of the evidence that Petitioner was an organizer of the criminal activity, but rather it was beyond all reasonable doubt. The 4-level upward adjustment was added.
The final unresolved objection was on page 16, paragraph 50 of the PSR, concerning the assignment of two criminal history points for a offense that Petitioner pleaded guilty to in case 93-CF-478, on October 18, 1996, in Vermillion County, Illinois. In that case Petitioner was accused of possessing an altered Visa credit card in 1993. Petitioner plead guilty on October 18, 1996, and received 18 months probation, 154 days in jail (time served), and fined $200. On June 5, 1998, a Petition to Revoke was filed and a warrant for failure to appear was issued in the case on July 13, 1998.
Attorney Zopf argued that the points for this conviction were devastating to Petitioner because it moved him up into a criminal history category of V. Zopf claimed that this was not a criminal violation, but rather likely the result of a failure to pay restitution or some other "technical" condition. The government countered that Petitioner was convicted of felony possession of an altered credit card. He was sentenced to 154 days in jail (time served) which exceeded 60 days, making it worth two points under the guidelines if the conviction was within 10 years of the instant offense, which it was. The conviction was October 1996 and Petitioner was charged in the instant case in January 2006.
The court found that the conduct from the 1996 case is very similar to the conduct Petitioner plead guilty to in the instant case. The court found that this is precisely the type of case to which the guideline provisions applied under U.S.S.G. § 4A1.1(b).
The court also inquired of Zopf whether Petitioner had any other objections other than the ones listed in the PSR that would effect Petitioner's offense level, criminal history category, advisory guideline range, or statutory sentencing. Zopf indicated that Petitioner did initially on the draft report, but based upon further conferences, he agreed with Zopf's strategy at that point and joined with him. The court then conducted its own inquiry of Petitioner. Petitioner indicated that he was aware of the three objections on which Zopf would be proceeding that day and that he was in agreement with Zopf and joined him on those objections. Petitioner stated that he did not have any other objections that Zopf was not presenting. He was not forced nor promised anything to not raise any other objections.
This court then, by a preponderance of the evidence, adopted the entire PSR from pages 1 through 25, paragraphs 1 through 100. Under the advisory Sentencing Guidelines, the court calculated an offense level of 18 with a criminal history category of V. The ...