United States District Court, W.D. Virginia, Lynchburg Division
K. Moon United States District Judge
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.
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.
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).
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).
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.
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).
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
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).
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).
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).
§ 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 ...