United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
CHARLES RONALD NORGLE, District Judge.
Before the Court is Petitioner Eric Coley's ("Coley") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Also before the Court is Coley's Motion to Perform an Evidentiary Hearing. For the following reasons, the motions are denied.
On September 22, 2010, Coley was charged in a second superseding indictment with ten counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A. On April 8, 2011, he pleaded guilty to one count of wire fraud, at which time the Government agreed to dismiss the remaining nine counts of wire fraud. Coley's single charge of aggravated identity theft, which carried a mandatory minimum consecutive sentence of two years' imprisonment, remained pending against him.
Prior to sentencing on the wire fraud count, the Government prepared a lengthy "Government's Version of the Offense, " along with an eleven-page supplement specifically addressing the intended loss amount, to aid the Probation Department in the preparation of the Presentence Investigation Report ("PSR"). Although Coley and his counsel did not submit a "Defendant's Version of the Offense" to the Probation Department prior to the preparation of the PSR, they submitted a sentencing memorandum containing various objections to the PSR and reserved any remaining arguments for presentment at the sentencing hearing. According to the PSR, the intended loss amount attributable to Coley was $1.8 million, with over 250 victims of the fraudulent scheme. With an offense level of 37 and a criminal history category of VI, this calculation yielded a sentencing guidelines range of 360 months to life imprisonment. The statutory maximum term of imprisonment, however, was 240 months.
The sentencing hearing was held on December 14, 2011. At sentencing, among other arguments, Coley's counsel contested the PSR's findings with respect to the loss amount and the number of victims. Ultimately, the Court found, as Coley had argued, that the loss amount was more than $400, 000, but less than $1, 000, 000, and that the number of victims was more than 50, but less than 250. This resulted in a sentencing guidelines range of 210 to 262 months' imprisonment. In its discretion, however, the Court sentenced Coley to 144 months' imprisonment on the single count of wire fraud-a sentence which is more than thirty percent below the applicable guidelines range. The judgment of conviction was entered on December 29, 2011. Meanwhile, the aggravated identity theft charge against Coley remained outstanding.
Shortly thereafter, the Government indicated to Coley's counsel that it would be willing to dismiss the remaining count of aggravated identity theft in exchange for Coley agreeing to waive certain rights, including the right to appeal his sentence. Counsel states that he communicated this offer to Coley in person at his place of detention on December 29, 2011. The Government then emailed counsel the proposed agreement, which he forwarded to Coley on January 13, 2012 and discussed with him the following day by telephone. On January 9, 2012, the Government filed a motion to present and enter post-sentencing agreement, wherein it informed the Court of the agreement between the parties. Specifically, the Government agreed that it would not appeal Coley's below guideline sentence and agreed to dismiss the remaining count against him, in exchange for Coley's waiver of his appellate and collateral attack rights. The agreement was to be memorialized in a document to be signed by all parties on February 1, 2012.
In the instant motion, Coley alleges that the waiver agreement was never discussed with him prior to the hearing on February 1, 2012. Nevertheless, Coley was present when the parties appeared before the Court on February 1, 2012. The agreement, which pertained to both Coley and his twin brother and co-defendant Derrick Coley, was signed by the Government, both defendants, and their respective attorneys. At the hearing, the following discussion took place between Coley and the Court:
THE COURT: Okay. Mr. Coley, did you hear what your attorney said? That is to say that on your behalf he has reached an agreement with the government?
THE DEFENDANT: Correct.
THE COURT: Did you hear all of that?
THE DEFENDANT: Um-hum.
THE COURT: Are you in agreement with your attorney ...