United States v. Deptula

          MEMORANDUM OPINION AND ORDER

          JOHN Z. LEE, UNITED STATES DISTRICT JUDGE.

         Sebastian 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 [1] is denied.

         Factual and Procedural Background

         Deptula 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 § 2255.

         After 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.

         As the 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, 162, 229.

         In 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.

         The 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 id.

         By the 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.

         The 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.

         Finally, 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. See id.

         In the 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).

         Assuming 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.

         In his 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.

         At the 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 ...