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Hopkinson v. United States

United States District Court, N.D. Illinois, Eastern Division

November 29, 2017

BRIAN L. HOPKINSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          Joan H. Lefkow, U.S. District Judge.

         Brian 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.

         BACKGROUND

         I. Factual Background

         Hopkinson worked as an accountant and attorney in Park Ridge, Illinois. (Gov. ver. at 1.)[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), [2] 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.)

         From 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.)[3] 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 forgiveness. (Id.)

         II. Procedural History

         In 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.)[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.)

         After 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.[5] (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.)

         On 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.)

         Following 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.)

         Sometime 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, [6]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.)

         At his 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.

         LEGAL STANDARD

         Section 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. § 2255(b).

         ANALYSIS

         First, 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).

         I. Ineffective Assistance of Counsel

         A 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).

         To 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 697.[7]

         A. Grand Jury Subpoena

         Hopkinson 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.[8] 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.

         Accordingly, Hopkinson is not entitled to relief for this claim.

         B. Failure to Retain a ...


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