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Kyle E. Pittenger v. United States of America

June 30, 2011

KYLE E. PITTENGER, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED

Thursday, 30 June, 2011 03:47:55 PM

Clerk, U.S. District Court, ILCD

OPINION & ORDER

Before the Court is Petitioner Kyle E. Pittenger's Motion to Vacate, Set Aside, or Amend Sentence Pursuant to 28 U.S.C. § 2255 (R.2 Doc. 1), Respondent's Motion to Dismiss (R.2 Doc. 4), Petitioner's Response (R.2 Doc. 5), Petitioner's Motion to Expand the Record (R.2 Doc. 6), and Petitioner's Supplemental Reply (R.2 Doc. 8). For the following reasons, Petitioner's Motion to Vacate, Set Aside, or Amend Sentence is DENIED and Respondent's Motion to Dismiss is GRANTED.

PROCEDURAL HISTORY*fn1

On October 17, 2008, an Information was filed, charging Kyle E. Pittenger with Mail Fraud, in violation of 18 U.S.C. § 1341. (R.1 Doc. 1). According to the Information, Petitioner represented himself to be a financial advisor regarding insurance and investments and sold various investment vehicles and annuities. (R.1 Doc. 1 at 1). Petitioner received funds from clients which were to be invested in mutual funds, annuities, and other investment vehicles on behalf of his clients. (R.1 Doc. 1 at 2). From approximately May of 2004, and continuing through October of 2007, Petitioner defrauded several individuals and financial institutions. Petitioner induced his clients to sell one annuity and purchase another so that he may collect commissions and bonuses. (R.1 Doc. 1 at 3). Petitioner placed the funds his clients provided him into accounts that were held and controlled by him instead of accounts that were held and controlled by his clients. (R.1 Doc. 1 at 3). Petitioner provided his clients with false financial statements purporting to show that their funds were invested as they had directed Petitioner to invest them, when in fact Petitioner had taken those funds and converted them to his own personal use. (Doc. 1 at 4). Petitioner made false statements regarding one of his client's accounts to a bank in East Moline, Illinois and caused the bank to issue a cashier's check drawn on the client's account. (Doc. 1 at 4). Petitioner obtained the check from the bank, altered it, and deposited the check into his own brokerage account and invested it for his own benefit. (R.1 Doc. 1 at 4). Four individuals, one couple and two separate individuals, fell victim to Petitioner's scheme. (R.1 Doc. 1 at 2). Petitioner used the United States Postal Service, the United States Parcel Service, and Airborne Express to send at least fourteen letters in defrauding his clients. (R.1 Doc. 1 at 8).

On October 21, 2008, Petitioner executed a Waiver of Indictment before this Court. (R.1 Doc. 2). In the Waiver, Petitioner acknowledged that he had been advised of the nature of the charges, the proposed Information and his rights; waived prosecution by indictment in open court; and consented that the proceedings against him could be made by Information rather than indictment. (R.1 Doc. 2). That same day, Petitioner pled guilty to the Information at a change of plea hearing pursuant to a written Plea Agreement. (R.1 Doc. 29). Petitioner agreed to waive the right to appeal and/or collaterally attack his conviction and/or sentence in the Plea Agreement. (R.1 Doc. 3 ¶ 9-10). Petitioner acknowledged that he had read the Plea Agreement, discussed it with his attorney, understood the Agreement and agreed to it voluntarily and of his own free will. (R.1 Doc. 3 ¶ 24). Petitioner further agreed that the facts about his criminal conduct were true and that he is guilty. (R.1 Doc 3 ¶ 24). Petitioner acknowledged that no threats, promises or commitments were made to influence him to plead guilty other than those stated in the Plea Agreement. (R.1 Doc. 3 ¶ 24). Petitioner further acknowledged that he was satisfied with his legal services and that by signing the statement he agreed everything was true and accepted the Plea Agreement. (R.1 Doc. 3 ¶ 24).

This Court held a sentencing hearing on November 24, 2009. This Court found a total offense level of 28, a criminal history category of II, and an advisory imprisonment range of 87 to 108 months. (R.1 Doc. 28 at 5). Petitioner was sentenced to 87 months of imprisonment with five years of supervised release and ordered to pay a $100.00 special assessment, and restitution in the amount of $473,052.28. This Court's judgment was entered on December 2, 2009. (R.1 Doc. 21). No direct appeal was filed. (R.2 Doc. 4 at 3).

On April 15, 2010, Petitioner filed a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255. (R.2 Doc. 1). In his § 2255 Motion, Petitioner claims that: 1) his sentence was in violation of the Sixth Amendment because the sentencing Court relied upon conduct not admitted to by Petitioner; 2) his counsel was ineffective because the restitution ordered is erroneously calculated; 3) his counsel was ineffective for failing to request a Kastigar hearing prior to advising him to plead guilty, and that prosecutors used information from a June 25, 2008, interview to charge him; 4) Petitioner's rights were violated because he was not indicted by a grand jury and did not enter a knowing guilty plea; 5) his counsel was ineffective for telling Petitioner to plead guilty; 6) his counsel was ineffective for failing to adequately consult with Petitioner regarding which elements would constitute a violation of 18 U.S.C. § 1341; 7) the Government's evidence against him was both insufficient and illegally obtained; 8) his counsel failed to discuss or file a notice of appeal; 9) his counsel was ineffective for failing to object to the allegations contained in the Information, and whether the matters contained therein were provided pursuant to Petitioner's cooperation agreement; 10) his counsel was ineffective in abandoning Petitioner's objections to the Presentence Investigation Report; 11) his counsel was ineffective for failing to argue the "rule of lenity;" and 12) his counsel was ineffective for failing to raise certain issues on direct appeal: illegal sentence, prosecutor misconduct, actual innocence, insufficient evidence and breach of the cooperation agreement and plea. (R2. Doc. 1 at 7-37). Respondent filed its Motion to Dismiss on May 13, 2010, stating that Petitioner's Plea Agreement bars Petitioner from attacking his conviction and/or sentence because he knowingly, freely, and voluntarily waived that right. (R.2 Doc. 3 at 4).

DISCUSSION

Section 2255(a) of Chapter 28 of the United States Code provides that a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255(a).

I. The Plea Agreement

In the case at bar, the parties entered into a written plea agreement pursuant to FED. R. CRIM. P. 11. By its terms, this Plea Agreement supersedes and replaces any and all prior formal and informal, written and oral, express and implied, ...


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