United States District Court, D. New Jersey
L. LINARES, District Judge
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
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).
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).
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).
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).
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
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).
Petitioner is not entitled to an evidentiary hearing
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 ...