United States District Court, N.D. Illinois, Eastern Division
BRIAN L. HOPKINSON, Movant,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
H. Lefkow, U.S. District Judge.
L. Hopkinson, moves to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. He challenges the
160-month sentence that he is serving after pleading guilty
to four counts of mail fraud. For the reasons stated herein,
Hopkinson's petition and ancillary motions are denied.
worked as an accountant and attorney in Park Ridge, Illinois.
(Gov. ver. at 1.) He maintained his own law office where he
also acted as an investment advisor. (Id.) In 1998,
Hopkinson formed Dental Venture Capital Company (DVCC) (Cr.
dkt. 1 at 1),  a private investment company that claimed
to provide financing for young dentists to acquire existing
dental practices from retiring dentists. (Id.)
Hopkinson falsely represented to his investors that their
capital would be used to finance the acquisitions of existing
dental practices that he would determine to be safe, making
them low-risk investments yielding above-average returns.
(Id. at 3.) He was to repay his investors with
monthly returns of principal and interest over a period of
four years. (Id.)
its inception, Hopkinson ran DVCC as a Ponzi scheme.
(Id. at 1-4.) For nearly nine-and-a-half years he
used funds obtained from new investors to pay monthly
“lulling” payments to clients in order to keep
the scheme going. (Id. at 4.) By June 2007, however,
DVCC was not bringing in enough money from new investors to
sustain the monthly payments. (Dkt. 5 at 6.) In July 2007,
Hopkinson, aware that he could not maintain the scheme any
longer, sent letters to many of his investors notifying them
that DVCC had operated as a Ponzi scheme and asking their
mid-July 2007, the government served a grand jury subpoena on
Hopkinson calling for the production of his and DVCC's
business records. (PSR at 4.) At or around that time, Hopkinson
retained Attorney Keri Ambrosio to represent him. (Dkt. 5 at
6-7.) Hopkinson gave the documents requested by the
government to Ambrosio, who advised him that submitting the
documents to the government would “prove the United
States' case.” (Dkt. 5 at 7.) Hopkinson, through
Ambrosio, invoked his Fifth Amendment right against
self-incrimination and refused to produce the documents,
forcing the government to issue numerous subpoenas to
Hopkinson's bank in order to reconstruct his fraud. (PSR
at 4.) The government, however, was only able to obtain
records from June 2002 through June 2007, roughly half the
time that Hopkinson ran his Ponzi scheme. (Id.)
concluding its investigation, the government provided
Ambrosio with its findings as well as a draft plea agreement
containing preliminary sentencing guidelines calculations and
loss figures. (Dkt. 14 at 5.) Disagreeing with the
government's loss calculation, Hopkinson rejected the
agreement and, acting on instructions from Ambrosio, prepared
a reconciliation report that he claimed accurately
represented the losses to his investors as less than $2.5
million. (Dkt 5 at 9.) The government, however, rejected his
calculation because the report lacked sufficient detail and
backup documentation. (Dkt. 14 at 5.) Shortly thereafter, the
government provided a second draft plea agreement that
Hopkinson also rejected, and it then filed a four-count
information charging Hopkinson with fraud in violation of 18
U.S.C. § 1341. (Cr. dkt. 1.)
January 19, 2011, Hopkinson entered a blind plea of guilty.
(Cr. dkt. 22.) The same day, he filed a plea declaration,
which preliminarily calculated his guidelines offense level
to be 30. (Cr. dkt. 23 at 5.) His declaration acknowledged
enhancements for using sophisticated means and 50 or more
victims, which the government had included in its first draft
plea agreement. (Id. at 3.) On February 1, 2011,
Hopkinson filed an amended plea declaration that omitted the
two-level sophisticated means enhancement, reducing the
offense level to 28 and, assuming a three-level reduction for
acceptance of responsibility, resulting in an anticipated
sentencing range of 78 to 97 months. (Cr. dkt. 25 at 3-5.)
Hopkinson's guilty plea, the government submitted its
version of the offense to the Probation Office on May 18,
2011. (PSR at 3.) The total loss to investors under the
government's Guidelines analysis was projected at $3.6
million. (PSR at 5.) That number was extrapolated from the
2002-2007 records which indicated a loss of over $2 million
during that time. (Gov. ver. at 13.)
in September 2011, Hopkinson furnished documents to the
Probation Office disputing the government's loss
calculation. (PSR at 4.) The assigned probation officer,
however, discredited Hopkinson's submissions for being
unsubstantiated, inaccurate, and incomplete, and instead
adopted the government's loss calculation. (Id.
at 4-5, 22.) Citing “more than sufficient evidence that
[Hopkinson] knowingly and purposefully . . . [engaged in
conduct that] could be considered an attempt to obstruct
justice, ” the officer also recommended that Hopkinson
not receive the three-level acceptance of responsibility
reduction. (Id. at 5-6, 8.) Ultimately, the
probation officer calculated Hopkinson's offense level at
37 and his criminal history at level I, resulting in a
guidelines range of 210 to 262 months. (Id. at 21.)
Hopkinson responded to the PSR's recommendations with a
sentencing memorandum that accepted the government's loss
position in an attempt to receive the three-level reduction
for acceptance of responsibility. (Cr. dkt. 37 at 2-3.)
sentencing hearing on December 19, 2011, Hopkinson again
conceded the government's loss calculations in order to
avoid any suggestion that he did not deserve the three-level
reduction for acceptance of responsibility. (Cr. dkt. 44 at
38:18-19; see also cr. dkt. 37 at 3.) The court
accepted the then-undisputed loss amount, granted acceptance
of responsibility, and calculated an offense level of 34,
which resulted in a guidelines range of 151 to 188 months.
The court sentenced Hopkinson to 160 months'
incarceration followed by two years of supervised release.
(Cr. dkt. 44 at 47:8-12.) Hopkinson did not appeal.
2255 allows a convicted person held in federal custody to
move the sentencing court for an order vacating, setting
aside, or correcting the person's sentence. 28 U.S.C.
§ 2255(a). “Relief under § 2255 is reserved
for extraordinary situations.” Hays v. U.S.,
397 F.3d 564, 566 (7th Cir. 2005) (quoting Prewitt v.
U.S., 83 F.3d 812, 816 (7th Cir. 1996)). A movant must
establish “that the district court sentenced him in
violation of the Constitution or laws of the United States or
that the sentence was in excess of the maximum authorized by
law or is otherwise subject to collateral attack.”
Id. at 566-67 (quoting Prewitt, 83 F.3d at
816). It is proper to deny a § 2255 motion without an
evidentiary hearing if “the motion and the files and
records of the case conclusively demonstrate that the
prisoner is entitled to no relief.” 28 U.S.C. §
Hopkinson argues that his counsel was constitutionally
ineffective during the plea and sentencing proceedings
because she did not (1) produce documents in response to the
grand jury subpoena, (2) retain a forensic accountant, (3)
object to certain sentencing enhancements, and (4) undertake
a reasonable investigation before encouraging him to plead
guilty. (Dkt. 5 at 19-22.) Second, Hopkinson argues that the
court used the wrong version of the sentencing guidelines at
his sentencing and, therefore, he is entitled to resentencing
under the holding in Peugh v. U.S., 569 U.S. 530,
133 S.Ct. 2072, 186 L.Ed.2d 84 (2013).
Ineffective Assistance of Counsel
movant “bears a heavy burden in making out a winning
claim based on ineffective assistance of counsel.”
U.S. v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995).
To prevail, he must show (1) “that counsel's
representation fell below an objective standard of
reasonableness, ” and (2) “that there is a
reasonable probability that, but for counsel's
unprofessional errors, the results of the proceeding would
have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
satisfy the first prong of the Strickland test, a
movant must direct the court to specific acts or omissions of
his counsel. Fountain v. U.S., 211 F.3d 429, 434
(7th Cir. 2000) (citing Trevino, 60 F.3d at 338).
The court must then consider whether, in light of all of the
circumstances, counsel's performance was outside the
range of professionally competent assistance. Id. To
satisfy the second prong of the Strickland test, the
movant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceedings would have been different. Id.
“A reasonable probability is a probability sufficient
to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. If Hopkinson cannot
establish one of the Strickland prongs, the court
need not consider the other. See id. at
Grand Jury Subpoena
argues that Ambrosio's decision not to produce documents
in response to the grand jury subpoena because she believed
that it “would prove the United States' case”
(dkt. 5 at 18-20) amounts to ineffective assistance because
he had already confessed to his crimes when he wrote letters
to his investors pleading for their forgiveness.
(Id.) While it is true that Hopkinson's letters
likely made his conviction a foregone conclusion, the
information sought in the subpoena was not confined to the
binary issue of guilt versus innocence. Rather, the subpoena
sought probative information for a sentencing guidelines
calculation, e.g., loss amount and number of victims. That
Hopkinson confessed his crimes to his investors does not make
Ambrosio's decision unreasonable. Ambrosio made a
strategic choice not to comply with the subpoena and instead
force the government to prove up its case regarding
Hopkinson's fraud-which could have resulted in a lower
sentencing guidelines calculation benefitting
Hopkinson. Harding v. Sternes, 380 F.3d
1034, 1044-45 (7th Cir. 2004) (noting that when evaluating an
attorney's conduct, efforts must be “made to
eliminate the distorting effects of hindsight . . . and to
evaluate the conduct from counsel's perspective at the
time” (quoting Strickland, 466 U.S. at 689));
see also Lopez v. Thurmer, 594 F.3d 584, 588 (7th
Cir. 2010) (“[The court] will not pick apart
counsel's strategic choice ‘with the benefit of
hindsight.'” (quoting McAfee v. Thurmer,
589 F.3d 353, 356 (7th Cir. 2009)). Such a strategic choice
was within the “wide range of professionally competent
assistance.” Id.; Strickland, 466
U.S. at 690.
Hopkinson is not entitled to relief for this claim.
Failure to Retain a ...