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Boye v. United States

United States District Court, D. New Jersey

November 20, 2018

BOBBY BOYE, Petitioner,




         Petitioner, Bobby Boye (“Boye”), is a federal prisoner proceeding, through his counsel, with a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. For the following reasons, Boye's § 2255 motion is denied.


         A. The Underlying Criminal Proceeding

         Boye was arrested on June 19, 2014, pursuant to a Criminal Complaint that charged him with one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1343, and one count of wire fraud, in violation of 18 U.S.C. § 1849. See United States v. Boye, Crim. No. 15-196, ECF No. 1. The Complaint alleged that beginning in July 2010, Boye was employed as an international petroleum legal advisor for the Ministry of Finance of “Country A.” Id., Attach. B., ¶ 1a. It alleged that in February 2012, Country A solicited bids for a multi-million-dollar contract (the “contract”) to provide legal and tax accounting advice and assist with the drafting of tax regulations. Id. ¶ 1b. In his role as a legal advisor to Country A, Boye served as a member of the three-person committee responsible for reviewing and evaluating the bids for the contract. Id. In March 2012, Opus & Best Services LLC (“Opus & Best”), of which Boye was the sole member, submitted a bid via email for the contract. Id. ¶ 1c. The Complaint alleged that in the bid submitted by Opus & Best, Boye made a No. of false representations, including: “falsely claiming that Opus & Best was a legitimate law and accounting firm; and fraudulently failing to disclose his affiliation with Opus & Best, in contravention of the no-conflict of interest bidding requirements.” Id. ¶ 2. Based largely on Boye's recommendation, Opus & Best was awarded the contract by Country A in June 2012. Id. According to the Complaint, Country A wired a total of $3, 150, 000 in contract payments to Opus & Best “which Boye diverted to his own personal use to purchase numerous assets.” Id. ¶ 3.

         On April 28, 2015, petitioner waived indictment and agreed to plead guilty to a one-count Information for conspiracy to commit wire fraud in violation of 18 U.S.C. § 1843 and 18 U.S.C. § 1849. See Crim. No. 15-196, ECF Nos. 19-23. The plea agreement included a stipulation that Boye's offense level under the United States Sentencing Guidelines would be 24. Crim. No. 15-196, ECF No. 23, at 10. As part of that calculation, the parties stipulated that “Specific Offense Characteristic § 2B1.1(b)(1)(J) applies because the aggregate loss amount is greater than $2, 500, 000 but not more than $7, 000, 000. This Specific Offense Characteristic results in an increase of 18 levels.” Id. The parties further agreed that neither Boye nor the Government would “argue for the imposition of a sentence outside the Guidelines range that results from the agreed total Guidelines offense level” nor would either party “seek or argue for any upward or downward departure, adjustment, or variance not set forth [in the Agreement].” Id. at 10, 11. The plea agreement additionally provided that Boye “agrees to make full restitution for all losses . . . to Country A in the amount of $3, 510, 00.” Id. at 3.[1]

         Boye was sentenced by this Court on October 15, 2015 to a prison term of 72 months. Crim. No. 15-196, ECF No. 27. Boye was additionally ordered by the Court to pay restitution in the amount of $3, 510, 000, on which interest was waived. Id.

         At the sentencing hearing, this Court first addressed the amount of restitution to be paid to Country A, acknowledging that the parties stipulated in the plea agreement to a restitution amount of $3, 150, 000 and noting that:

In any event, there would still be the issue of offsetting [Country A] as to any kind of legitimate services that were actually provided by Mr. Boye. Nothing has really been presented to me at this point and it would be very difficult to determine whether there would be offsets to it based upon the services that he gave or not.
Therefore, under the statute this would obviously complicate and prolong the sentencing process and would require additional hearings, and, therefore, balancing of the factors, that will not be awarded either.

Crim. No. 15-196, ECF No. 42, 8:1-12.

         The parties then argued their sentencing positions. Boye's counsel argued for a sentence at the bottom of the Guidelines range-63 months. Id. at 16:17-19. In so arguing, counsel acknowledged Boye's criminal history and Boye's admission “that the company he created in order to submit this international tax consultant bid was fraudulent.” Id. at 16:21 to 17:15.

         Nevertheless, Boye's counsel argued that a sentence at the bottom of the Guidelines range was appropriate because, ultimately, Country A benefited from the work product produced by Boye and Country A continues to use that work product. Id. at 17:16-25. Counsel argued that the fact that Boye completed the services contemplated by the contract distinguished this case from other cases of fraud and that not crediting Boye for the services he provided would act as “somewhat of an unjust enrichment.” Id. at 18:7 to 19:20.

         The government argued for a sentence at the top of the Guidelines range. With respect to Boye's request that his sentence reflect a credit for the services he provided to Country A, the government contended that the provision of services did not mitigate Boye's crimes because had he not performed those services “he wouldn't have gotten the continuous payments under the contract.” Id. at 27:2 to 27:12. The government also cited to the commentary on § 2B1.1 of the Sentencing Guidelines, which do not permit a defendant who made “false representations as to the licensing of particular professionals” to receive any credit for those services on the amount of loss. Id. at 27:13 to 27:21. The government contended that this rule applied here because

there is a special kind of abuse of trust and a special kind of manipulation that occurs when an individual is posing as a trusted licensed accredited individual. Here he was posing as various licensed accountants who claimed were CPAs, other attorneys, and he needed to create an aura of expertise in order to get the contract, and then once he had the contract to ensure the continued payments in installments under the terms of the contract.

Id. at 27:23 to 28:6.

         The Court rejected Boye's argument for a credit for legal services provided to Country A and in applying the § ...

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