United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. LEE, UNITED STATES DISTRICT JUDGE.
Deptula has filed a pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. Deptula, who pleaded guilty to one count of wire fraud
in violation of 18 U.S.C. § 1343, contends that his
trial counsel was constitutionally ineffective for failing to
move to dismiss his indictment and for failing to make
certain arguments at his sentencing. For the reasons stated
herein, Deptula's motion  is denied.
and Procedural Background
was charged in two successive federal criminal cases for his
involvement in fraud schemes. First, in April 2014, he was
charged with bank fraud in No. 14 CR 178. Deptula pleaded
guilty in December 2014, admitting that, in 2007, he had
fraudulently obtained a mortgage loan. See Plea
Agreement ¶ 6, No. 14 CR 178, ECF No. 34. Judge John W.
Darrah sentenced Deptula to 12 months and 1 day in prison.
See Judgment, No. 14 CR 178, ECF No. 43. Deptula did
not appeal from the judgment or file a motion under §
completing that sentence, Deptula was arrested and indicted
in the case underlying the present motion, No. 15 CR 188. At
the time, Deptula was in the custody of the Department of
Homeland Security pending removal from the United States. In
No. 15 CR 188, Deptula and nine co-defendants were charged
with a wide-ranging scheme involving credit-card fraud,
consumer-loan fraud, and insurance fraud. See Plea
Agreement ¶ 6, No. 15 CR 188, ECF No. 297. Additional
participants in the scheme were charged in a separate case,
United States v. Cwynar, et al., No. 16 CR 637.
case went on, Deptula's counsel filed several trial
demands under the Speedy Trial Act. See No. 15 CR
188, ECF Nos. 121, 156, 226. The district judge denied each
of these motions. See No. 15 CR 188, ECF Nos. 134,
February 2017, Deptula entered into an agreement to plead
guilty to one count of wire fraud in violation of 18 U.S.C.
§ 1343. In the agreement, he admitted to leading at
least twenty participants in a scheme that lasted from
January 2010 until his initial arrest in April 2014. Plea
Agreement ¶ 6, No. 15 CR 188.
scheme consisted of three elements. First, Deptula recruited
various individuals for a “credit card bust-out fraud,
” in which he would obtain personal information from
recruits, apply for credit cards on their behalf using false
information, and direct them to “rapidly make purchases
with the credit cards at or near” the credit limits.
See Id. ¶ 6A. Additionally, to avoid detection,
Deptula generally instructed participants to purchase new
laptop computers, which he would use to apply for the credit
cards and then return to the stores. See Id. Deptula
told his recruits that they should declare bankruptcy rather
than paying off the accrued debt. See Id. Deptula
generally demanded that participants pay him with goods,
cash, or cash equivalents equal to a percentage-typically
twenty percent-of the credit limit for each card. See
summer of 2012, Deptula had enhanced the scheme through the
use of shell corporations and mobile payment processing
devices. See Id. Essentially, Deptula directed some
participants to form Illinois corporations and open corporate
bank accounts; the participants' fraudulently obtained
credit cards were then used to make false purchases,
depositing the proceeds into the accounts. See Id.
The funds were then withdrawn by Deptula and his
co-participants. See id.
second type of fraud in Deptula's scheme involved making
false statements in consumer loan applications to procure
unsecured personal loans and motor vehicle loans. See
Id. ¶ 6B. In these applications, Deptula made false
statements about the applicants' creditworthiness.
See Id. Deptula then demanded portions of the loan
proceeds or asked participants to transfer possession of the
motor vehicles to him. See Id. Several participants
discharged their fraudulently accumulated debt through
bankruptcy. See id.
Deptula led participants in committing insurance fraud with
respect to the fraudulently obtained motor vehicles. See
Id. ¶ 6C. When participants purchased luxury
automobiles using false information, Deptula directed them to
purchase insurance policies covering damage to the vehicles,
including damage from vandalism. See Id. Deptula
would then direct participants to transfer possession of the
vehicles to him, and he or someone else would damage the
interiors of the vehicles. See Id. Deptula would
then tell the owners to file insurance claims for the damage,
falsely claiming that it was caused by an unknown vandal.
plea agreement, the parties set forth their respective
positions as to Deptula's sentencing guidelines
calculation. First, the parties agreed that Deptula's
base offense level was 7. See Id. ¶ 9(b)(i).
Additionally, they agreed that a two-level increase was
appropriate under USSG § 2B1.1(b)(2) because the offense
involved at least ten victims, and a four-level increase was
appropriate under § 3B1.1(a) because Deptula was an
organizer or leader of a criminal activity involving more
than five participants. Id. ¶¶ 9(b)(iii),
(vi). Furthermore, the Government maintained-over
Deptula's disagreement-that an 18-level increase was
appropriate under § 2B1.1(b)(1)(J) to account for losses
of over $3.5 million; that a two-level increase was
appropriate under § 2B1.1(b)(9)(B) because the offense
involved misrepresentations made in bankruptcy proceedings;
and that a two-level increase under § 2B1.1(b)(10)(C)
was warranted because the offense was committed using
sophisticated means. Id. ¶¶ 9(b)(ii),
(iv)-(v). The Government conditionally agreed that reductions
under § 3E1.1 may be appropriate for acceptance of
responsibility. Id. ¶¶ 9(b)(vii)-(viii).
Finally, the Government contended that, due to Deptula's
prior conviction in No. 14 CR 178, his criminal history
category was II. Id. ¶ 9(c).
that Deptula would get credit for acceptance of
responsibility, the Government anticipated a guidelines range
of 135 to 168 months of imprisonment, corresponding to an
offense level of 32 and a criminal history category of II.
See id. ¶ 9(d). A presentence investigation
report (“PSR”) drafted by a probation officer
arrived at the same calculation. See PSR, No. 15 CR
188, ECF No. 312. The Government advocated for a sentence at
the high end of this range. See Tr. of Sentencing at
39:4-13, No. 15 CR 188, ECF No. 423.
sentencing memorandum, Deptula contested the loss amount
calculated by the Government and the probation officer,
contending that it improperly included $2.2 million
attributable to the defendants in the Cwynar case.
See Def.'s Sentencing Mem. at 1-2, No. 15 CR
188, ECF No. 353. Deptula argued that this amount could have
been, but was not, included in his indictment in No. 14 CR
178; he advocated for a lower loss amount of $1.1 million.
See Id. at 2. Furthermore, Deptula argued- despite
having admitted otherwise in his plea agreement-that the
offense involved fewer than ten victims. See Id. at
3-4. He also contended that his criminal history category
should not take account of his conviction in No. 14 CR 178
since the cases could have been combined. See Id. at
4. That said, Deptula's sentencing memorandum did not
object to the Government's proposed increases for
misrepresentations in bankruptcy proceedings or the use of
sophisticated means. All told, Deptula contended that a
sentence of 48 months would be appropriate. See Tr.
of Sentencing at 36:9-13, No. 15 CR 188.
sentencing hearing, Judge Samuel Der-Yeghiayan made rulings
as to the parties' disputes over the guidelines
calculations and the sentencing factors under 18 U.S.C.
§ 3553(a). First, defense counsel elaborated on
Deptula's objection to the Government's loss
calculation, including the fact that the PSR relied on the
Government's figures and included the amounts
attributable to the Cwynar defendants. See
Tr. of Sentencing at 6:13-10:13, No. 15 CR 188. In rejecting
those arguments, Judge Der-Yeghiayan noted that the losses in
the Cwynar case were reasonably foreseeable from
Deptula's consumer-fraud scheme and had not been
attributed to him in No. 14 CR 178. See Id. at
21:21-22:25. Judge Der-Yeghiayan explained:
[D]espite [D]efendant's argument that the 2014 case he
was charged in contained the same allegations as the
Cwynar case, the 2014 case was unrelated to the
Cwynar case. The 2014 case the defendant was charged
in involved mortgage fraud while the Cwynar case and
the present case involved ...