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United States v. Helbig

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

December 13, 2016

UNITED STATES OF AMERICA
v.
SUSANNE HELBIG, Petitioner.

          MEMORANDUM OPINION

          Norman K. Moon United States District Judge

         Petitioner Susanne Helbig, a federal inmate proceeding pro se, filed a motion and an amended motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255, challenging her 96-month sentence based on ineffective assistance of counsel claims and claims of procedural error following a guilty plea. The government filed a motion to dismiss and Helbig responded. Accordingly, this matter is ripe for consideration. I conclude that Helbig has not stated any meritorious grounds for relief. Therefore, I will grant the government's motion to dismiss.

         I

         On May 22, 2014, a grand jury returned a fifteen-count indictment against Helbig charging her with: conspiracy to engage in mortgage fraud, in violation of 18 U.S.C. § 1349 (“Count One”); aiding, abetting and knowingly executing and attempting to execute schemes to defraud federally insured financial institutions, in violation of 18 U.S.C. § 1344 (“Counts Two -Eight”); knowingly making false statements or reports for the purpose of obtaining loans from a federally insured financial institution, in violation of 18 U.S.C. § 1014 (“Counts Nine -Fourteen”); and willfully making false statements on a tax return, in violation of 26 U.S.C. § 7206(1) (“Count Fifteen”). At her arraignment, Helbig stated that she had received a copy of the indictment and understood the nature of the charges against her. (Arraigm't Hr'g Tr. at 6-7, ECF No. 108).

         Helbig was appointed counsel who engaged in plea negotiations with the government. Helbig pleaded guilty to Count One and Count Fifteen, pursuant to a written plea agreement. The government agreed to dismiss the remaining counts of the indictment. The plea was entered pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), and called for an agreed sentencing range of 51 - 121 months' incarceration and $10, 620, 121.22 in restitution. (Plea Agmt. at 1, 5, ECF No. 49). In the plea agreement Helbig stipulated that, for purposes of calculating the sentencing guidelines on Count 1, the loss amount was between $7 million and $20 million. (Id. at 4). Helbig agreed that a sentence of imprisonment within the stipulated range was “a reasonable sentence” and recognized that the government would seek a sentence at the high end of the range and she would seek a sentence at the low end of the range. (Id. at 1). Pursuant to the plea agreement, Helbig agreed to waive her right to appeal and to collaterally attack her conviction and sentence other than to bring claims for ineffective assistance of counsel. (Id. at 9). The plea agreement also provided that if Helbig was not an American citizen, she “may be subject to deportation from the United States as a result of [her] conviction.” (Id. at 10). Helbig affirmed that she had carefully reviewed the agreement, and was voluntarily entering into it of her own free will. (Id. at 14).

         At the guilty plea hearing, Helbig affirmed that she had received a copy of the indictment and had had ample time to consult with counsel before signing the plea agreement. (Plea Hr'g Tr. 3, ECF No. 483). Helbig stated that she understood that she was under oath and that if she answered questions falsely, her statements could be used against her in another proceeding. (Id. at 4). She affirmed that she was “fully satisfied with the counsel, representation and advice given” to her by her lawyer. (Id. at 4). The government summarized the terms of the plea agreement. (Id. at 6-10). It noted that in order to obtain a conviction on Count One, it would have to prove that Helbig knowingly and willfully entered into an agreement to commit bank fraud, a conviction which carries a maximum term of imprisonment of 30 years. On Count Fifteen, the government stated that it would have to show that Helbig signed and filed tax returns under penalty of perjury that she knew to contain false statements, a conviction which carries a maximum term of imprisonment of three years. (Id. at 6-7). Helbig affirmed that she understood what the government must prove to be found guilty of the two counts to which she pleaded guilty, and the range of punishment she faced. (Id. at 7). The government further noted that the plea agreement was entered into under Rule 11(c)(1)(C), that the parties had agreed to a sentencing range of 51 to 121 months, and that if accepted, the plea agreement would supersede any guidelines calculation. (Id. at 10). Helbig affirmed that she had read and understood the plea agreement before signing it. (Id. at 12).

         Helbig affirmed that no one had made any promises other than those in the plea agreement to induce her to plead guilty and that no one had “attempted to force [her] to plead guilty.” (Id. at 12). She stated that she understood that by pleading guilty, she gave up her right to appeal and to collaterally attack her sentence. (Id. at 12-13).

         The prosecutor summarized the evidence against Helbig: in 2006 and 2007 Helbig was an owner of a local construction company. She started paying kickbacks to mortgage brokers and strawbuyers to obtain approximately 30 mortgage and construction loans from banks and mortgage lenders based on false information. (Id. at 13). Helbig defaulted on the loan payments and the banks suffered approximately $10.5 million in losses. (Id. at 18). In those same years, Helbig filed tax returns under penalty of perjury that did not accurately reflect her income from the construction company. (Id. at 18-19). At the end of the hearing, I found that Helbig was fully competent and capable of entering an informed plea and that her guilty plea was knowingly and voluntarily made. (Id. at 20).

         The probation office prepared a Presentence Investigation Report (“PSR”) before sentencing. The PSR recommended a total offense level of 32, which included a 20-level enhancement because the loss amount was between $7 million and $20 million, a two-level enhancement because the offense involved the use of sophisticated means, a two-level enhancement because Helbig received more than $1 million in gross receipts from a single financial institution, and a four-level enhancement because she was an organizer or leader of the criminal activity. (PSR ¶¶ 37, 38, 39, 41, 52, ECF No. 72). Helbig had a criminal history category of I, resulting in a guideline imprisonment range of 121 to 151 months' incarceration. (Id. at ¶ 70). Both the government and the defense objected to provisions of the PSR.

         Defense counsel objected to the PSR's classification of Helbig as “head[ing]” the conspiracy. He argued that it was a “joint venture” between Helbig and two other individuals, although counsel did note that Helbig had a leadership role with regard to the strawbuyers. (Id. at 23). Defense counsel argued that Helbig also did not “recruit” loan officers to participate in the conspiracy. In addition defense counsel objected to an obstruction of justice enhancement, which was subsequently removed from the PSR. (Id. at 25).

         Defense counsel filed an extensive sentencing memorandum. In it, he argued that I should sentence Helbig to 51 months' incarceration as a fair and reasonable sentence and to avoid sentencing disparities. (Sent. Mem. at 12, ECF No. 54). The government also filed a sentencing memorandum, arguing for a sentence of 121 months because Helbig was a leader in the conspiracy and actively participated in many aspects of the scheme. (Gov't Sent. Mem. at 26, ECF No. 55).

         At the sentencing hearing, Helbig stated that she had had an opportunity to review the PSR with counsel. (Sent. Hr'g Tr. 2, ECF No. 84). The government, in accordance with its sentencing memorandum, requested a sentence of 121 months. (Id. at 8). Defense counsel did not put on any evidence, but argued for a sentence of 51 months because co-conspirators who were equally, if not more culpable, had received sentences of 36 months. (Id. at 11-12). Helbig stated that she was “horrified, deeply saddened, and eternally remorseful for [her] conduct in this case, ” that her actions were “legally and morally wrong.” (Id. at 18). I sentenced Helbig to 96 months' incarceration and required her to pay $10, 461, 677.17 in restitution. (Judgment at 2, 5). She filed a direct appeal, but then moved to voluntarily dismiss it, which the Fourth Circuit granted. (Order at 1, ECF No. 91).

         In her § 2255 motion, Helbig alleges that counsel provided ineffective assistance of counsel by: (1) failing to investigate the claims against her and prepare a defense; (2) failing to inform her of the charges against her, and coercing her to plead guilty; (3) colluding with the government to present false evidence; (4) failing to prepare for sentencing and challenge the restitution calculation. (§ 2255 motion at 8-11, ECF No. 103). She also argues in an amended § 2255 motion that I failed to properly advise her of her ...


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