The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner Rafael Perez-Rodriguez's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 , the United States' response in opposition , and Petitioner's reply in support . For the reasons stated below, Petitioner's motion is denied.
Petitioner Rafael Perez-Rodriguez, a citizen of Mexico, began using the identity of victim Arthur Louis Guajardo, a United States citizen, in 1990. Between 1990 and May 7, 2008, Petitioner used the victim's identity in a number of ways, including (1) to obtain the victim's Social Security Number ("SSN"), which petitioner used to work and obtain a U.S. passport; (2) to obtain an Illinois Commercial Driver's License ("CDL") and identification card; and (3) to enroll in Moraine Valley Community College ("MVCC") and apply for and receive federal student financial aid grants in the amount of $6,144.25. Petitioner used the victim's identity without his knowledge or permission. Petitioner sought to protect his stolen identity by paying for a traffic ticket issued under the victim's name and contesting a child support claim that concerned the victim.
On May 2, 2008, the Government charged Petitioner by criminal complaint with knowingly possessing and using another individual's name, date of birth, and SSN with the intent to commit and in connection with passport fraud, in violation of 18 U.S.C. § 1028(a)(7). SeeDkt. No. 1. On this same date, the Magistrate Judge Morton Denlow issued an arrest warrant for Petitioner and a search warrant for Petitioner's home authorizing the seizure of records, documents, correspondence, and other evidence of Petitioner's violation of § 1028(a)(7). Id. at 3. On May 7, 2008, federal agents arrested Petitioner at his home and executed the search warrant. When Petitioner was being processed by the arresting agent, he identified himself by his actual name, Rafael Perez-Rodriguez.
Two weeks after his arrest, on May 22, 2008, a grand jury returned a four-count indictment against Petitioner that set forth the following charges: knowingly using a passport secured by false statement to enter the United States from Mexico, in violation of 18 U.S.C. § 1542 (Count One); knowingly possessing and using the victim's name and date of birth during and in relation to the unlawful use of a passport described in Count One, in violation of 18 U.S.C. § 1028A(a)(1) (Count Two); knowingly possessing with the intent to use unlawfully five identification documents (each bearing the victim's identifiers) not issued lawfully for defendant's use, in violation of 18 U.S.C. §§ 1028(a)(3) and (b)(2)(B) (Count Three); and knowingly possessing and using the victim's name, date of birth, and SSN during and in relation to the unlawful possession of identification documents described in Count Three, in violation of 18 U.S.C. § 1028A(a)(1) (Count Four).
On June 23, 2008, Petitioner, through counsel, moved to dismiss Counts Two and Four of the indictment on the grounds that (1) the charges violated the Fifth Amendment's Double Jeopardy Clause, and (2) section 1028A's two-year mandatory sentence violated the Due Process Clause and conflicted with 18 U.S.C. § 3553(a). SeeDkt. No. 23. After considering briefing from both sides on the issues raised in Petitioner's motion, this Court denied Petitioner's motion on the merits. See Dkt. No. 30.
On November 20, 2008, Petitioner was charged in a superseding indictment which added a wire fraud charge for Petitioner's use of the victim's identity to obtain grant money from the U.S. Department of Education to attend college, in violation of Title 18, United States Code, Section 1343. On November 25, 2008, Petitioner's counsel, Daniel Hesler, orally moved to withdraw, and on November 26, leave to withdraw was granted by this Court. That same day, the Court appointed Clarke Devereux, from the Federal Defender Panel, to represent Petitioner.
In preparation for trial, the Government moved in limine to admit evidence of certain statements Petitioner made regarding his false identity between 1990 and 2004. Petitioner, through counsel, objected to the admission of such evidence. After considering the arguments from both sides, the Court granted the Government's motion in limine in a memorandum opinion. See Dkt. No. 71. On January 20, 2009, Petitioner proceeded to a three-dayjury trial. The Government presented evidence of Petitioner's offense conduct through: (1) dozens of items seized during a search of Petitioner's home that bore the victim's identifiers and Petitioner's actual name; (2) Petitioner's own statements; (3) the testimony of he victims; (4) Petitioner's financial aid applications submitted to MVCC; (5) Petitioner's employment file from Vans, Inc.; (6) stipulations setting out the interstate wiring of federal student aid funds from the Department of Education to MVCC; (7) the testimony of law enforcement agents; and (8) Petitioner's girlfriend, an eyewitness to Petitioner's use of the passport in the victim's name. Petitioner did not present any witnesses in his defense.
On January 22, 2009, the jury found Petitioner guilty of all five counts charged against him. On February 23, 2009, Petitioner, through counsel, filed a motion for acquittal or, in the alternative, a new trial on the grounds that (1) the evidence presented at trial was insufficient to sustain Petitioner's convictions; and (2) that the district court erred in making certain evidentiary rulings prior to and during the trial, and in rejecting Petitioner's proffered jury instruction. The Court denied Petitioner's post-trial motion in a written memorandum opinion and order. See Dkt. No. 91.
Prior to Petitioner's sentencing, the U.S. Probation Office ("USPO") prepared a PreSentence Report ("PSR"). According to the USPO's guidelines calculation, Petitioner's combined offense level for Counts One, Two, and Four was 14 and his criminal history category was II, for a guideline range of 18 to 24 months imprisonment. PSR at 5-8, 13. Next, the USPO noted that Petitioner's guideline sentence for Counts Three and Five was two years-the term of imprisonment required by 18 U.S.C. § 1028A(a)(1)-which was to run consecutively to any other term of imprisonment. Id. at 7, 13; see alsoU.S.S.G. § 2B1.6. Petitioner challenged the probation officer's inclusion of certain information in the PSR regarding his offense conduct and requesting a below-guideline sentence of 12 months with respect to Counts One, Two, and Four. Id. at 89. Petitioner also argued various 18 U.S.C. § 3553 factors in support of his request for a total sentence of 36 months. At sentencing, the Court resolved Petitioner's objections by ordering stricken certain portions of the PSR regarding petitioner's offense conduct and commenting that such information would have no bearing on Petitioner's sentence. The Court then heard arguments from both sides regarding the section 3553(a) factors that supported their respective sentencing requests. The Court also heard from the victim and his wife, and from Petitioner, who apologized to the victim and the Government. The Court adopted the USPO's guidelines calculation set forth in the PSR and sentenced Petitioner to 57 months (21 months on Counts One, Two, and Four; 24 months on Count Three, and 12 months to run concurrently between Counts Three and Five).
In imposing the sentence, the Court noted the following 3553(a) factors: the seriousness of the offense and the impact on the victims; the history and characteristics of Petitioner, including those that were both in aggravation and in mitigation; the need to promote respect for the law, and provide just punishment and specific and general deterrence. The Court further stated that a deviation from Petitioner's guidelines range was not warranted under the circumstances of the case and that a sentence of 21 months in the middle of the range was sufficient. The Court also commented that but for the fact that Petitioner was going to be deported after his term of imprisonment was completed, the Court would have given Petitioner a sentence at the high end of the range. The Court also ordered Petitioner to pay restitution and entered a preliminary order of forfeiture.
Petitioner, through counsel, timely filed a notice of appeal on March 31, 2009. On September 1, 2009, Petitioner's counsel filed a brief pursuant to Anders v. California concluding that an appeal would raise issues that would be wholly frivolous. Counsel also filed a motion for leave to withdraw as Petitioner's court-appointed counsel. Petitioner opposed counsel's motion, but on December 22, 2009, the Seventh Circuit dismissed the appeal and granted counsel's motion to withdraw. See United States v. Perez-Rodriguez, 358 Fed. Appx. 700 (7th Cir. 2009). Specifically, the Seventh Circuit found that a sufficiency challenge to any of petitioner's convictions and a challenge to his sentence would be frivolous. Id. at 704-05. In addition, the Seventh Circuit found that the district court correctly decided the government's motion in limine to admit evidence. Id. at 704.
On October 25, 2010, petitioner signed his pro se Petition to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("petition"). Petitioner's petition was received and filed by the Clerk on November 1, 2010. The Government filed a response to the petition, ...