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Awe v. United States

United States District Court, D. New Jersey

March 28, 2017

HAKEEM AWE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          Jose L. LINARES, District Judge

         Presently before the Court is the amended motion of Hakeem Awe ("Petitioner") to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. (ECF No. 5). Following an order to answer, the Government filed a response to the amended motion. (ECF No. 10). Although provided ample time to do so, Petitioner failed to file a reply brief. (See ECF No. 13). For the following reasons, this Court will deny Petitioner's amended motion to vacate sentence and will deny Petitioner a certificate of appealability.

         I. BACKGROUND

         On March 25, 2014, Petitioner Hakeem Awe pled guilty to mail fraud in violation of 18 U.S.C. § 1341 and aggravated identity theft in violation of 18 U.S.C. § 1028A pursuant to a negotiated plea agreement. (Document 1 attached to ECF No. 10, Document 2 attached to ECF No. 10 at 4). These charges arose out of Petitioner's having engaged in a scheme to defraud the federal government by filing false tax returns on behalf of numerous individuals in order to obtain fraudulent tax refund checks from the IRS which he ultimately deposited in his various bank accounts. (See Document 1 attached to ECF No. 10 at 19-21). Pursuant to his plea agreement, Petitioner pled guilty to these two charges in exchange for the dismissal of the two remaining counts in his indictment. (Docket No. 13-86 at ECFNos. 15, 29). Under the agreement, Petitioner and the Government also agreed to several sentencing stipulations, including the following: 1) that Petitioner's base offense level for mail fraud was seven; 2) that he would receive a fourteen level upward adjustment reflecting a stipulated loss amount between $400, 000 and $ 1, 000, 000 for the purposes of the sentencing guidelines resulting in a preliminary offense level of 21 for the fraud count; 3) that Petitioner had shown acceptance of responsibility and should receive a three level downward adjustment for that acceptance under U.S.S.G. § 3E1.1; 4) that Petitioner's total offense level for the fraud count should therefore be 18; and 5) that the identity fraud count was subject to a mandatory two year imprisonment term to run consecutive to any sentence on the mail fraud charge. (Docket No. 13-86 at ECF No. 29 at 3, 7-9).

         Following Petitioner's entry of a guilty plea on those two counts, Probation produced a pre-sentence report for Petitioner which included a substantially different guidelines calculation. (See Document 2 attached to ECF No. 10 at 6). In the view of the officer who prepared the PSR, Petitioner's loss amount should have been calculated as approximately 1.2 million dollars based on information provided by the IRS, and Petitioner should therefore receive a 16, as opposed to 14, level increase for his fraud count. (Id.). Probation also recommended a four level increase because Petitioner's scheme had included fifty or more victims, which had not been accounted for in the plea agreement's stipulations. (Id.). Finally, Probation also recommended that Petitioner not receive an acceptance of responsibility reduction because Petitioner had not fully cooperated with the financial investigation undertaken as part of the PSR process to determine the actual loss and restitution amounts. (Id.). These differences would have resulted in Petitioner's offense level being nine levels higher than that recommended in the plea agreement, which would have resulted in a substantially higher guidelines sentencing range. (Id. at 7).

         Petitioner appeared for sentencing in this matter on November 18, 2014. (Id. at 1). Petitioner's counsel did not submit a sentencing memorandum in advance of sentencing. (Id. at 4-5). At sentencing, the Government contended that the Court should sentence Petitioner in accordance with the plea agreement rather than follow the recommendations in the pre-sentence report, and explained the basis for the stipulations contained in the agreement. (Id. at 6-12). Petitioner's attorney likewise argued that the Court should follow the agreement, specifically noting that he believed Petitioner had complied with the Government, pled guilty, and attempted to aid their investigations thereafter, and argued that Petitioner should therefore receive the benefit of his acceptance of responsibility. (Id. at 12-14). Based on the arguments of both the Government and Petitioner's counsel, this Court concluded that it would accept the lower guidelines range contained in the plea agreement, rather than the higher range recommended in the PSR, although the Court noted that the PSR was not incorrect and that, absent the plea agreement and the contentions of counsel, a sentence in the range recommended by the PSR would not be improper. (Id. at 16-17).

         At sentencing, Petitioner's counsel argued for a sentence at the low end of the plea agreement guidelines range. (Id. at 19-25). Counsel argued that this Court should take into account that Petitioner was just a part of a much larger scheme, and was not the mastermind behind that scheme. Further, Counsel avers that Petitioner had complied with all of the rules of his house arrest during the lengthy pre-trial period, and that Petitioner had a wife who was unwell and young children, for whom he was the chief source of support thus indicating that a long sentence would be a severe hardship on Petitioner and his family. (Id.). Counsel also argued that the Court should take into consideration Petitioner's attempts at cooperating with the Government in investigating the scheme in which he was involved, which, although insufficient to earn a letter for a downward departure from the Government, had been considerable. (Id. at 24-25). Based on these arguments, including Petitioner's attempted cooperation with the Government, this Court concluded that a sentence within the plea agreement guideline range was appropriate, and therefore sentenced Petitioner to a total of 57 months, including a 33 month sentence on the fraud count and the required two year consecutive sentence on the identity theft count of the indictment. (Id. at 31-36). Although this Court gave Petitioner a sentence within the range recommended by the plea agreement, Petitioner was ordered to pay restitution based on the information contained in the PSR, requiring total restitution in the amount of $1, 242, 047.20. (Id. at 34).

         II. DISCUSSION

         A. Legal Standard

         A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional violation, to be entitled to relief the moving party must show that an error of law or fact constitutes "a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure." United States v. Horsley, 599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert. denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F.Supp.2d 454, 458-59 (D.N.J. 2003).

         B. Petitioner is not entitled to an evidentiary hearing

         28 U.S.C. § 2255(b) requires an evidentiary hearing for all motions brought pursuant to the statute "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). "Where the record, supplemented by the trial judge's personal knowledge, conclusively negates the factual predicates asserted by the petitioner or indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required." Judge v. United States,119 F.Supp.3d 270, 280 (D.N.J. 2015); see also Government of Virgin Islands v. Nicholas,759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham, 587 F.App'x 6, 8 (3d Cir. 2014); Booth, 432 F.3d ...


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