Adkins v. United States

• Decision Date: 07 August 2018
• Docket Number: 3:12-cr-259-RJC-DCK-1,3:16-cv-189-RJC
• Parties: GLENN ADKINS, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of North Carolina

GLENN ADKINS, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.

3:16-cv-189-RJC

3:12-cr-259-RJC-DCK-1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

August 7, 2018

ORDER

THIS MATTER is before the Court on Petitioner's Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 2), and numerous pending motions, (Doc. Nos. 8, 12, 16, 20, 22, 36, 37, 38, 40, 41, 45, 47, 49, 53, 56, 57, 59, 62, 73, 79, 88, 96, 102). The Government has filed a Response opposing relief. (Doc. No. 9).

I. BACKGROUND

Petitioner and co-defendant Warren Tonsing were indicted in a Costa Rican telemarketing fraud conspiracy. The charges pertaining to Petitioner are: Count (1), conspiracy to commit wire and mail fraud; Counts (2)-(9), wire fraud; Count (10), conspiracy to commit money laundering; and Counts (11)-(14), international money laundering. (3:12-cr-259, Doc. No. 9).

The Government presented evidence at trial that Petitioner and several co-defendants operated a call center in Costa Rica from which they made phone calls into the United States, posing as representatives of the Federal Trade Commission, Random House Publishing, and Lloyds of London. They presented a "pitch" in which they told victims that they had won large cash sweepstakes prizes but, in order to collect their winnings, they must wire money into Costa Rica to purchase insurance and pay fees. The evidence against Petitioner included testimony from cooperating co-conspirators Christopher Coble and Andrew Longhurst who identified Petitioner as a call center "opener" and "reloader" who defrauded victims under the aliases Benjamin Walker and Robert Hayward. (3:12-cr-259, Doc. No. 174 at 58-59, 219). A jury found Petitioner guilty of all 14 Counts. (3:12-cr-259, Doc. No. 96).

The Presentence Investigation Report ("PSR") scored the base offense level as seven for wire fraud, plus the following enhancements: 18 levels for a loss amount greater than $2,500,000 but less than $7,000,000; six levels for more than 250 victims; two levels for misrepresenting that the defendant and/or conspirators were acting on behalf of a government agency; and two levels because a substantial part of the fraudulent scheme was committed from outside the United States. (3:12-cr-259, Doc. No. 118 at ¶ 28). Two levels were added because Petitioner was convicted under 18 U.S.C. § 1956, and for vulnerable victims, and three levels were added because Petitioner was a manager or supervisor. (3:12-cr-259, Doc. No. 118 at ¶¶ 29-31). This resulted in a total offense level of 42. (3:12-cr-259, Doc. No. 118 at ¶ 36). Petitioner had a criminal history score of four and two levels were added because Petitioner committed the instant offense while under a criminal justice sentence. (3:12-cr-259, Doc. No. 118 at ¶¶ 42, 43). The total criminal history score was therefore six and Petitioner's criminal history category was III. (3:12-cr-259, Doc. No. 118 at ¶ 44). The resulting guideline range was 360 months to life in prison. (3:12-cr-259, Doc. No. 118 at ¶ 80).

Petitioner's counsel filed objections arguing, inter alia, to the PSR's calculation of the loss amount and number of victims, arguing that the PSR relied on the "spreadsheet analysis" prepared by Agent Eric Kost was not reliable. (3:12-cr-259, Doc. No. 131). Counsel also filed a Motion for Sentencing Departure/Variance for the imposition of a sentence not greater than necessary toachieve the purposes of sentencing and to avoid a sentencing disparity from his co-defendants' 24-month sentences. (3:12-cr-259, Doc. No. 134); see also (3:12-cr-259, Doc. No. 138).

The Court found that the loss amount was more than $1,000,000 and reduced the base offense level by two levels. This did not change the advisory guideline imprisonment range. The Court granted the defense motion to vary below the guidelines and sentenced Petitioner to 300 months' imprisonment as to Count (1) and 240 months as to Counts (2)-(14), concurrent, followed by two years of supervised release, and imposed restitution of $2,419,706.68. (3:12-cr-259, Doc. No. 144); see (3:12-cr-259, Doc. No. 177).

Petitioner argued on direct appeal that the Court erred in denying his motion for judgment of acquittal because the money laundering offenses merged with the wire fraud offenses, that the Court was required to submit Petitioner's restitution amount and facts underlying the application of the Sentencing Guidelines to the jury, and that the Court procedurally erred in applying several sentencing enhancements. The Fourth Circuit Court of Appeals affirmed, finding that Petitioner waived his merger argument by failing to assert it in a Rule 29 motion, that the Court was not required to submit the facts underlying Petitioner's Guidelines calculation and restitution amount to the jury, and that the Court did not clearly err in calculating the loss amount, number of victims, applying enhancements for vulnerable victims and a supervisory role. United States v. Tonsing, 629 Fed. Appx. 464 (4^th Cir. 2015). The United States Supreme Court denied certiorari on March 28, 2016. Adkins v. United States, 136 S.Ct. 1506 (2016).

Petitioner filed a § 2255 Motion to Vacate on April 19, 2016, and he filed the instant Amended § 2255 Motion to Vacate on June 7, 2016. (Doc. Nos. 1, 2). He raises a number of claim of substantive error and ineffective assistance of trial and appellate counsel.

II. STANDARD OF REVIEW

A federal prisoner claiming that his "sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a).

The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. See U.S. Const. Amend. VI. To show ineffective assistance of counsel, Petitioner must first establish deficient performance by counsel and, second, that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The deficiency prong turns on whether "counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms." Id. at 688. A reviewing court "must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). The Strickland standard is difficult to satisfy in that the "Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." See Yarborough v. Gentry, 540 U.S. 1, 8 (2003). The prejudice prong inquires into whether counsel's deficiency affected the judgment. See Strickland, 466 U.S. at 691. A petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. In considering the prejudice prong of the analysis, a court cannot grant relief solely because the outcome would have been different absent counsel's deficient performance, but rather, it "can only grant relief under .. . Strickland if the 'result of the proceeding was fundamentally unfair or unreliable.'" Sexton v. French, 163 F.3d 874, 882 (4^th Cir. 1998) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). Under these circumstances, the petitioner "bears the burden of affirmatively proving prejudice." Bowie v. Branker, 512 F.3d 112, 120 (4^th Cir. 2008). If the petitioner fails to meet this burden, a reviewing court need not even consider the performance prong. Strickland, 466 U.S. at 697.

Strickland applies in the context of appellate representation. To show prejudice, a petitioner must show a "reasonable probability ... he would have prevailed on his appeal" but for his counsel's unreasonable failure to raise an issue. Smith v. Robbins, 528 U.S. 259, 285-86 (2000); see also United States v. Mannino, 212 F.3d 835, 845-46 (3d Cir. 2000) ("The test for prejudice under Strickland is not whether petitioners would likely prevail upon remand, but whether we would have likely reversed and ordered a remand had the issue been raised on direct appeal.").

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings . . ." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4^th Cir. 1970).

III. DISCUSSION¹

(1) Substantive Error

(A) Illegal Arrest & Extradition

Petitioner contends that the United States violated his constitutional rights and the Extradition Treaty with Costa Rica by seizing him in Costa Rica and extraditing him on June 25, 2012. He claims that a Costa Rican court had issued a judicial mandate² barring his removal from Costa Rica and that U.S. agents unlawful coordinated efforts to seize Petitioner and remove him from Costa Rica on a national holiday when government agencies were closed. The U.S. had a duty to use procedures in place to request Petitioner's extradition from Costa Rica and not seize and remove him unlawfully. U.S. embassy personnel breached their duties by seizing Petitioner and transferring him to U.S. Marshals agents who unlawfully removed him from Costa Rica against his will. Petitioner...