Pena v. United States
| Decision Date | 04 September 2014 |
| Docket Number | Civil Action No. 12-846 (SDW) |
| Court | U.S. District Court — District of New Jersey |
| Parties | EDWIN ANDRES PENA, Petitioner, v. UNITED STATES, Respondent. |
NOT FOR PUBLICATION
Before the Court is Petitioner Edwin Andres Pena's ("Petitioner" or "Pena") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("Motion"). The Government filed an Answer to Petitioner's Motion on March 19, 2013. (ECF No. 12.) For the reasons stated below, this Court DENIES Petitioner's Motion and DECLINES to issue a certificate of appealability.
In June 2006, Pena was arrested in Miami, Florida, pursuant to a sealed criminal complaint charging Pena with two counts of wire fraud relating to a scheme to secretly hack protected computers and voice over internet protocol ("VoIP") telecom providers, in order to route VoIP calls of Pena's telecom customers. See United States v. Pena, No. 2:09-cr-00103 (SDW) (ECF No. 1). On June 29, 2006, Pena appeared before the Honorable Madeline C. Arleo, U.S.M.J., for an initial appearance and bail hearing, and was released that day on a $100,000 bond secured by available equity in two Florida properties. (Id. at ECF No. 4.) Also on June 29, 2006, an Orderfor Continuance for 90 days was entered to allow the Government and Pena to conduct plea negotiations. (Id., ECF No. 9.) Apparently, on July 18, 2006, a proposed plea agreement was sent to Pena's counsel by the Government, which was conditioned upon Pena's entry of a guilty plea to conspiracy to commit unauthorized access to a protected computer, contrary to 18 U.S.C. § 1030(a)(4), in violation of 18 U.S.C. § 371. (Pet. Exhibit 1, July 18, 2006 Plea Agreement at ECF No. 4.) However, sometime after he was released on bail, Pena fled the country. An arrest warrant was then issued for Pena on August 14, 2006. See United States v. Pena, No. 2:09-cr-00103 (SDW) (ECF Nos. 10, 11).
Two and a half years later, on February 17, 2009, a new, enhanced 20-count Indictment was issued in the United States District Court for the District Court of New Jersey, charging Pena with multiple counts of wire fraud and unauthorized access to computers in violation of 18 U.S.C. §§ 371, 1030, 1343 and 2, as follows: (Count 1) conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371; (Counts 2 through 11) wire fraud, in violation of 18 U.S.C. § 1343; and (Counts 12 through 20) computer fraud and abuse, in violation of 18 U.S.C. § 1030. Specifically, the Indictment charged that from November 2004 through May 2006, Pena devised a scheme whereby he and Robert Moore and others would sell VoIP telephone service to telecommunications companies ("Telecom Customers") and then surreptitiously hack into the protected computer networks of VoIP Telecom Providers to route the VoIP calls of the Telecom Customers without paying the VoIP Telecom Providers for their service. Pena then did commit wire fraud and computer fraud and abuse by routing VoIP calls via VoIP Telecom Providers by hacking into the protected computer networks of various VoIP Telecom Providers for a period of time from July 25, 2005 through May 3, 2006. (Id., ECF No. 14 - Indictment.)
Soon after the new 20-Count Indictment was issued, Pena was arrested and returned to this District Court. Pena was ordered detained without bail on October 16, 2009. (Id., ECF No. 17.) On November 4, 2009, an Order of Continuance for 60 days was entered to allow the Government and Pena to conduct plea negotiations. (Id., ECF No. 22.)
On February 3, 2010, Pena pled guilty before this Court to Count 1 and Count 3 of the Indictment. (Id., ECF No. 25.) In particular, Pena signed and filed an Application for Permission to Enter a Plea of Guilty, (Id. at ECF No. 26), referencing the Plea Agreement, (Id. at ECF No. 27), in which he agreed to plead guilty to Counts 1 and 3 of the Indictment. The Plea Agreement set forth the statutory maximum penalties for each offense. Specifically, the agreement stated that a violation of 18 U.S.C. § 371 carried a statutory maximum penalty of five years imprisonment and a statutory maximum fine equal to the greatest of $ 250,000, twice the gross amount of any pecuniary gain that the person derived from the offense, or twice the gross amount of any pecuniary loss sustained by any victims of the offense. (Id., ECF No. 27 at 2.) A violation of 18 U.S.C. § 1343 carried a statutory penalty of twenty years in prison and a statutory maximum fine equal to the greatest of $ 250,000, twice the gross amount of any pecuniary gain that the person derived from the offense, or twice the gross amount of any pecuniary loss sustained by any victims of the offense. (Id.)
The Plea Agreement also confirmed that the sentence to be imposed on Pena was "within the sole discretion of the sentencing judge" and that the judge could impose "the statutory maximum term of imprisonment and the maximum statutory fine." (Id.) Moreover, the Plea Agreement specified certain stipulations to which both Pena and the Government consented, as follows:
This Office and Edwin Pena agree to stipulate at sentencing to the statements set forth in the attach Schedule A, which hereby is made a part of this plea agreement. This agreement to stipulate, however, cannot and does not bind the sentencing judge, who may make independent factual finding and may reject any or all of the stipulations entered into by the parties. To the extent that the parties do not stipulate to a particular fact or legal conclusion, each reserves the right to argue the existence of and the effect of any such fact or conclusion upon the sentence. Moreover, this agreement to stipulate on the part of this Office is based on the information and evidence that this office possessed as of the date of this agreement. Thus, if this Office obtains or receives additional evidence or information prior to sentencing that it determines to be credible and to be materially in conflict with any stipulation in the attached Schedule A, this Office shall not be bound by any such stipulation. A determination that any stipulation is not binding shall not release either this Office or Edwin Pena from any other portion of this agreement, including any other stipulation. If the sentencing court rejects a stipulation, both parties reserve the right to argue an appeal or at post-sentencing proceedings that the sentencing court was within its discretion and authority to do so. These stipulations do not restrict the Government's right to respond to questions from the Court and to correct misinformation that has been provided to the Court.
(Id. at 3-4.)
The Plea Agreement also expressly stated:
Edwin Pena agrees to make full restitution for all losses resulting from the offense of conviction or from the scheme, conspiracy, or pattern of criminal activity underlying that offense, to Net2Phone, Inc., OpHedge Investment Services, LLC, Unified Worldwide Transport, Latinode Communications, Ntera, S&S Communications, Novatel, Calls for Less, VoEX, Network Management Inc., Multiphone Latin America Inc., RS and Associates International Inc., Go2Tel, and Next Communications in the amount of $1,041,000.
(Id. at 3.)
The plea hearing was held on February 3, 2010. Pena clearly expressed that he understood the terms of the plea agreement and the consequences of entering a guilty plea. Pena further stated on the record that he understood he was waiving his right to a jury trial, and both Pena and his counsel signed a Waiver of Appeal. (ECF 12-5, Feb. 3, 2010 Transcript of Plea Hearing.)
On September 24, 2010, this Court sentenced Pena to an aggregate prison term of 120 months, and ordered that Pena make restitution in the amount of $1,012,311.10, pursuant to theMandatory Victims Restitution Act of 1996. (United States v. Pena, No. 2:09-cr-00103 (SDW) at ECF No. 30, Sep. 24, 2010 Judgment.)
On October 1, 2010, Pena filed a Notice of Appeal of his sentence. On May 17, 2011, the United States Court of Appeals for the Third Circuit granted the Government's motion to enforce the appellate waiver and for summary affirmance. (Id. at ECF No. 44.) Thereafter, Pena timely filed this § 2255 Motion on February 10, 2012.
Pena raises the following claims for relief. First, Pena argues that enforcement of his waiver of appeal works a miscarriage of justice because the "baseline offense level applied by the Court was an inaccurate miscalculation and was imposed in 'violation of the law.'" (ECF No. 1, Motion at 12.) Second, Pena contends that his counsel was ineffective during the plea process for failure to verify the actual amount of losses and number of victims claimed by the Government because these factors determined the potential sentence and restitution to be imposed. (Id. at 15-18.) Pena also argues that the restitution award must be vacated because the amount of losses and number of victims were not verified and are in error. (Id. at 18-19.) Finally, Pena filed an addendum to his § 2255 motion arguing that his counsel was ineffective for failing to inform Pena about the Government's earlier July 18, 2006 plea offer of 60 months imprisonment. (ECF 4.)
The Government responded to the Motion on March 19, 2013, countering that Petitioner's claims lack merit. (ECF No. 12, Answer.) Pena filed a reply on October 15, 2013. (ECF No. 24.)
A prisoner in federal custody under sentence of a federal court "may move the court which imposed the sentence to vacate, set aside or correct the sentence" upon three grounds: (1) "that the 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." 28 U.S.C. § 2255(a).
A criminal defendant bears the burden of establishing his entitlement to § 2255 relief. See United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). Moreover, as a § 2255...
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