Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Blanche M. Manning than Assigned Judge
Movant Forrest David Laidley's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [1-1] is denied. The clerk is directed to enter a Rule 58 judgment and to terminate this case from the court's docket.
O [ For further details see text below.] Docketing to mail notices.
Movant Forrest David Laidley pleaded guilty to one count of mail fraud, see 18 U.S.C. § 1341, and one count of bank fraud, see 18 U.S.C. § 1344. Specifically, he pleaded guilty to participating in a scheme to defraud individuals through the sale of interests in a limited partnership and short term/high interest promissory notes in connection with various real estate projects. Although Laidley admitted his involvement in a scheme to defraud, he reserved the right to contest at sentencing the government's allegations that his scheme began in 1999, that he defrauded individuals of more than $10 million, and that the number of victims exceeded 50. At sentencing, the court found that his amount of loss exceeded $7 million while his number of victims exceeded 50. As a result, it calculated a total offense level of 33, a sentencing range of 135-168 months, and imposed a sentence of 60 months.
Before the court is Mr. Laidley's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, in which Mr. Laidley alleges that his attorney's performance was ineffective. According to Mr. Laidley, counsel failed to effectively argue that the government and probation officer's calculations of his amount of loss and number of victims was grossly overstated. Had the court adopted the calculation Mr. Laidley now advances, his total offense level would have been 25, and his sentencing range would have been 57-71 months.
In order to establish ineffective assistance of counsel in a motion brought under § 2255, Mr. Laidley must show both that (1) his attorney's performance fell below an objective standard of reasonableness, and (2) the allegedly deficient performance so prejudiced his defense that it denied him a fair trial. See Strickland v. Washington, 466 U.S. 668, 690-91 (1984); Bethel v. United States, 458 F.3d 711, 714-15 (7th Cir. 2006). To show prejudice, Mr. Laidley bears the burden of establishing that but for counsel's deficient performance, there was a reasonable probability that the outcome of the proceeding would have been more favorable to him. See Freeman v. Chandler, 645 F.3d 863, 869 (7th Cir. 2011).
Mr. Laidley contends that his attorney's performance was ineffective for three reasons. First, he contends that counsel failed to provide to the court a chart and memorandum Mr. Laidley had prepared to challenge the government's calculation of his amount of loss, the number of victims, and when the scheme began. Second, he contends that counsel failed at sentencing to challenge arguments made by the government in its written sentencing memorandum. Third, he contends that counsel failed to challenge the probation officer's inclusion under the U.S. Sentencing Guidelines of a two-level enhancement under what was then U.S.S.G. § 2B1.1(b)(14) for a scheme that involved deriving more than $1,000,000 from a financial institution.
Although Mr. Laidley refers to three separate bases for finding that his attorney was ineffective, upon examination, the first two are essentially identical. Specifically, the gist of Mr. Laidley's second basis is that defense counsel failed to challenge the positions taken by his probation officer and the government at sentencing. But the only evidence he identifies that could have challenged the position of the probation officer and government was the chart and memorandum he had prepared, the subject of his first basis for finding ineffective assistance of counsel. Because each of the first two bases is rooted in the same argument that counsel was ineffective for not making use of Mr. Laidley's chart and memorandum, the court will address his second basis in conjunction with his first.
1. Failure to Present Chart and Memorandum
According to Mr. Laidley, there is a reasonable probability that, had defense counsel presented at sentencing the chart and memorandum that Mr. Laidley had prepared, the court would have adopted a more favorable calculation of his sentencing range under the U.S. Sentencing Guidelines. Specifically, he contends that there is a reasonable probability the court would have found that his amount of loss was $1-2 million rather than the approximately $7 million amount calculated by the probation officer, and that his number of victims was less than 50.
According to Mr. Laidley, his chart identifies the names of investors, along with the date and amount of their investment. He contends that it also shows how long it took him to repay each investment, if ever. Finally, he contends that it shows his net worth each quarter during the period 2000 through 2004, and compares it to the investments he was obligated to repay. According to Mr. Laidley, the chart demonstrates that his net worth during each quarter ...