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United States v. Obin

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

November 27, 2017

UNITED STATES OF AMERICA
v.
AUDREY OBIN, Defendant.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge

         Audrey Obin, a federal inmate proceeding pro se, has moved to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255. The government has filed a motion to dismiss, and the time within which Obin had to respond has expired, making this matter ripe for consideration. Upon review of the record, the court will grant the government's motion to dismiss and dismiss Obin's § 2255 motion.

         I.

         On May 28, 2015, a grand jury charged Obin and two codefendants in an eleven-count indictment with crimes of conspiracy to defraud the Internal Revenue Service (“IRS”), theft of government money, and aggravated identity theft. These charges were based on evidence that Obin filed fraudulent tax returns in order to obtain refunds. Obin retained counsel. He pleaded guilty, pursuant to a written plea agreement, to conspiracy to defraud the United States in violation of 18 U.S.C. § 371. (Plea Agree. at 1, Dkt. No. 64.) The government agreed to dismiss the remaining counts against him. The plea agreement included a provision in which Obin agreed to waive his right to appeal or to collaterally attack his conviction and sentence, except for claims of ineffective assistance of counsel or claims that cannot be waived by law. (Id. at 7.)

         At the guilty plea hearing, Obin affirmed that he had had an adequate opportunity to read and discuss the indictment and plea agreement with counsel. (Plea Hr'g Tr. at 8-9, 14-15, Dkt. No. 111.) Obin further affirmed that he was “fully satisfied with the advice and representation given to [him] in this case by [counsel].” (Id. at 27.) At the hearing, Obin admitted that he filed tax returns for individuals he did not know and had never met, that he knew that he was providing false information on the returns, and that he wanted to plead guilty because he was, in fact, guilty. (Id. at 28-30.) The court then found that Obin was fully competent and capable of entering an informed plea and that his plea of guilty was knowing and voluntary and supported by an independent basis in fact. (Id. at 34.)

         A presentence investigation report (“PSR”) was prepared in anticipation of sentencing. It recommended a guideline imprisonment range of 18 to 24 months' incarceration. (PSR ¶ 51, Dkt. No. 81.) Obin objected to the PSR's loss calculation of $200, 000 and the number of victims specified.

         At the sentencing hearing on June 15, 2016, the court accepted Obin's guilty plea. (Sent. Tr. at 4, Dkt. No. 113.) Obin withdrew his objections to the PSR, and the court accepted the PSR as written. (Id. at 7.) In support of a more lenient sentence, defense counsel argued that Obin was less culpable than his two codefendants (who had fled the country and evaded arrest), that he had cooperated with the government, and that he had a very limited prior criminal history. (Id. at 19-20.) The government, too, requested a downward departure to Obin's advisory guidelines range based on a substantial assistance motion. The court considered these arguments and sentenced Obin to a below-guidelines sentence of ten months' incarceration. (Id. at 24-25.) In addition, the court imposed a three-year term of supervised release. (Id. at 25.) Obin did not appeal.

         In his § 2255 motion, Obin argues: (1) that the court erred by failing to reduce his sentence based on the minor role that he played in the conspiracy; and (2) that counsel provided ineffective assistance by failing to advise Obin that he was eligible for a lesser sentence under the safety valve provision of U.S.S.G. § 5C1.2(5). On May 26, 2017, during the pendency of this petition, Obin was released from prison. Currently, he is serving a term of supervised release.[1]

         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 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). Obin bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         A. Minor-Role Reduction

         Obin argues that the court erred by failing to consider his limited role in the conspiracy when sentencing him, in accordance with Amendment 794 to the United States Sentencing Guideline (“U.S.S.G.”) § 3B1.2. This claim fails for many reasons. First, this issue is waived. Obin's plea agreement expressly waived his right to collaterally attack his sentence other than to raise issues that cannot be waived by law or for ineffective assistance of counsel. See United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005) (concluding that collateral attack waivers are generally enforceable following a knowing and voluntary guilty plea, as was the case here).

         But even if the issue were not waived, he could not prevail. At sentencing, Obin's counsel argued that he was less culpable than his codefendants. The government agreed, “he was not the big leader in this” conspiracy. (Sent. Tr. at 21, Dkt. No. 113.) The court took into consideration the extent of Obin's participation in the conspiracy when it sentenced him to a below-guidelines sentence. Therefore, Obin cannot establish prejudice or that the result of the proceedings would have been different. Strickland, 466 U.S. at 694.

         The fact that the court did not reduce Obin's advisory guideline range specifically pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 3B1.2(a), which allows for a reduction if the defendant is less culpable than others involved in the criminal conduct, was not erroneous. Defense counsel did not argue that Obin was entitled to a reduction under U.S.S.G. § 3B1.2(a), and so this claim is procedurally defaulted. United States v. Mikalajunas, 186 F.3d 490, 492 (4th Cir. 1999) (noting that in order to collaterally attack a conviction or sentence, the defendant generally must have raised those claims before the trial court and on direct appeal). Also, Obin has provided no evidence that he would have been entitled to an even greater reduction in his sentence under U.S.S.G. § 3B1.2(a); rather, he merely asserts that his role in the criminal conduct was minimal. This generalized claim is insufficient to support relief in a § 2255 petition. United States v. Dyess, ...


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