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United States v. Perry

United States District Court, W.D. Virginia, Abingdon Division

June 9, 2016

UNITED STATES OF AMERICA
v.
CARLOS PERRY, Defendant.

          Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia for United States; Charles Lee Bledsoe, Bledsoe Law Office, P.C., Big Stone Gap, Virginia, for Carlos Perry, Defendant.

          OPINION

          James P. Jones United States District Judge

         The defendant, Carlos Perry, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. He raised multiple claims, including an ineffective assistance of counsel claim for failing to note an appeal. The government filed a Motion to Dismiss. I held an evidentiary hearing limited to the appeal issue, and by oral order, dismissed that claim. After reviewing the record, I will grant the United States’ Motion to Dismiss with regard to Perry’s remaining claims.

         I.

         Perry perpetrated a scheme to defraud workers’ compensation insurance programs. He was charged in a three-count Information with mail fraud, in violation of 18 U.S.C. § 1341 (“Count One”), and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A (“Counts Two and Three”). Perry pleaded guilty, pursuant to a written plea agreement, to the three charges of an Information.

         At the guilty plea hearing, Perry affirmed that he had had an adequate opportunity to read and discuss the Plea Agreement with counsel before signing it. (Plea Hr’g Tr. 6-7, ECF No. 54.) Perry further affirmed that he was “fully satisfied with [his] attorney’s representation.” (Id. at 7.) The prosecutor summarized the terms of the Plea Agreement. Both the prosecutor and I advised Perry that for Count One, he faced a maximum statutory penalty of not more than twenty years’ imprisonment and for Counts Two and Three, a mandatory statutory penalty of two years. (Id. at 7, 11-12.) The prosecutor also explained that the government had the right to seek a sentence outside of the applicable guidelines range. Finally, the prosecutor recited that Perry agreed to pay restitution in the amount of $105, 962.34 to Erie Insurance Company, $27, 473.67 to Auto Owners Insurance Company, and $4, 745.89 to Amguard. (Id. at 9.)

         Perry affirmed his understanding that by pleading guilty, he gave up his right to appeal and to collaterally attack his sentence except on matters that cannot be waived under the law or that allege ineffective assistance of counsel. (Id. at 10-11.) Perry affirmed that no one had made any promises to him other than those contained in the Plea Agreement to cause him to plead guilty and that no one had threatened him or attempted to force him to plead guilty. (Id. at 11.) He stated that he understood that I had the authority to impose a sentence either more or less severe than his guidelines sentencing range. (Id. at 13.) I found that Perry was fully competent and capable of entering an informed plea and that his guilty plea was knowingly and voluntarily made. (Id. at 19.)

         The government filed a Motion for an Upward Variance requesting that Perry receive a sentence of 120 months’ imprisonment based on his extensive criminal history. Perry’s counsel responded, opposing an upward variance and suggesting a total sentence of not more than 71 months. Counsel noted that Perry promptly confessed and cooperated with law enforcement. Counsel also argued that although Perry had pleaded guilty to two counts of identity theft, convictions for those crimes require that the defendant know that the social security numbers used actually belonged to other people, evidence that the government did not appear to have. Therefore, “it does not appear that the government’s proofs as to counts two and three would withstand judicial scrutiny.” (Resp. to Upward Variance Mot. 3, ECF No. 27.) Prior to sentencing, Perry entered into a Sentencing Agreement with the United States in which he took responsibility for additional losses to workers’ compensation insurance programs, including $ 101, 028.82 to U.S. Administrator Claims and $ 85, 740.26 to Accident Fund Insurance Company.

         The Presentence Investigation Report (“PSR”) recommended a total offense level of 14[1] and a criminal history category of VI, resulting in a guideline imprisonment range of 37 to 46 months. (PSR ¶ 84, ECF No. 37.) At Perry’s sentencing hearing, the government moved to dismiss Counts Two and Three in light of Perry’s Opposition to the Upward Variance, but continued to request a 120-month sentence. I granted the government’s motion and dismissed Counts Two and Three. Because Perry had taken responsibility for additional losses, the parties agreed that his guidelines range had increased to 57 to 71 months. Numerous individuals involved in the investigation of the fraud scheme and insurance company employees testified at the sentencing hearing. Detective Watson testified that he had asked Perry about additional frauds in which he might have been involved, but Perry could only remember some because “I think he’s done so many, he could only tell me the recent ones.” (Sentencing Hr’g Tr. 7, ECF No. 53.)

         I sentenced Perry to 144 months’ imprisonment, taking into consideration the sophistication of the frauds, his lengthy fraud-related criminal history, and the fact that he was not completely forthcoming regarding the extent of the fraud. I also ordered Perry to pay $324, 914.98 in restitution. Perry’s appeal of his conviction and sentence was dismissed as untimely. United States v. Perry, 595 F. App’x 252 (4th Cir. 2015) (unpublished).

         In this § 2255 motion, Perry alleges that counsel provided ineffective assistance by (1) improperly advising him to plead guilty to an Information charging crimes that he did not commit; (2) failing to rebut the government’s rationale for an upward variance; (3) failing to challenge the loss amount; (4) failing to present mitigating evidence; and (5) failing to argue for a sentence below the guidelines range based on substantial assistance. Perry also argues that I abused my discretion at sentencing.

         II.

         To state a viable claim for relief under § 2255, a defendant must prove: (1) that his sentence was “imposed in violation of the Constitution or laws of the United States;” (2) that “the court was without jurisdiction to impose such a sentence;” or (3) that “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Perry bears the burden of ...


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