United States District Court, D. New Jersey
L. WOLFSON UNITED STATES DISTRICT JUDGE
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
BACKGROUND AND PLEADINGS
Underlying Criminal Proceeding
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.
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.
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.
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.
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.
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.
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.
Court rejected Boye's argument for a credit for legal
services provided to Country A and in applying the §