Summons v. United States

• Decision Date: 21 February 2019
• Docket Number: CAUSE NO. A-18-CV-795-SS,A-17-CR-249-SS
• Parties: SHAHIED SUMMONS v. UNITED STATES OF AMERICA
• Court: U.S. District Court — Western District of Texas

SHAHIED SUMMONS v. UNITED STATES OF AMERICA

CAUSE NO. A-18-CV-795-SS

A-17-CR-249-SS

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

February 21, 2019

ORDER

BE IT REMEMBERED on this day, the Court reviewed the file in the above-styled cause, and specifically Movant Shahied Summons's pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (ECF No. 35). Having considered the motion, the governing law, and the file as a whole, the Court now enters the following opinion and order denying Summons's motion.

Background

Summons was charged by information with one count of conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349 (Count One), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) (Count Two). (ECF No. 3). On July 20, 2017, pursuant to a plea agreement and at the conclusion of a Rule 11 hearing, Summons waived indictment and pleaded guilty to both counts alleged in the information. (ECF Nos. 5 & 20). The written plea agreement included a waiver of Summons's right to appeal on any basis and a waiver of his right to collaterally attack his conviction and sentence, other than to assert a claim of ineffective assistance of counsel or prosecutorial misconduct. (ECF No. 5).

The written plea agreement included a detailed factual basis for Summons's guilty plea. (Id.). The plea agreement also stated:

On February 22, 2017, Detective Matt Conley interviewed the Defendant in jail regarding the above-described events. In sum and substance, the Defendant admitted to the [alleged] offenses . . ., as well as other instances of similar fraud that were both known and unknown to [the Austin Police Department]. The Defendant stated that he actively committed these fraud schemes from approximately the summer of 2016 through the time of his arrest and estimated that he profited between $300,000 to $400,000.

(ECF No. 5 at 4).

In return for Summons's guilty plea, the Government agreed it would not criminally prosecute him further for the conduct giving rise to the charge contained in the information or based on the facts set forth in the plea agreement. (Id.). Furthermore, the Government agreed to recommend the District Attorney's Offices of Travis and Harris County dismiss the pending state charges against Summons in those two jurisdictions. (Id.).

A Presentence Investigation Report ("PSR") was prepared. (ECF No. 31). The PSR calculated a total offense level of 26 and a criminal history score of VI, arriving at a guideline sentencing range of 120 to 150 months imprisonment on Count One. (ECF No. 31 at 18-19). The PSR noted the guideline sentence for Count Two was the minimum statutory term of two years imprisonment. (ECF No. 31 at 18-19). Summons, through counsel, filed objections to the PSR. (ECF No. 31 at 23-24). On September 22, 2017, the Court sentenced Summons to 120 months imprisonment on Count One and a consecutive sentence of 24 months imprisonment on Count Two. (ECF No. 32). Additionally, the Court imposed an aggregate sentence of 3 years of supervised release and ordered Summons to pay restitution in the amount of $356,535.17, and a special assessment of $100. (Id.). On that same day, the Court revoked Summons's supervised release in Cause No. 1:17-CR-288-SS and sentenced him to 27 months to be served consecutively to the sentence imposed in the instant cause.

Summons executed his § 2255 motion on September 12, 2018. In Summons's motion to vacate he asserts "the statute under which" he was convicted is void for vagueness; the order of restitution was improper; his right to be free of double jeopardy was violated; the sentencing guidelines were "erroneously" calculated and applied; and he was denied the effective assistance of counsel. (ECF No. 35).

Analysis

I. Section 2255-Legal Standard

Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255: (1) the imposition of a sentence in violation of the Constitution or the laws of the United States; (2) a lack of jurisdiction of the district court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). A § 2255 motion is "fundamentally different from a direct appeal." United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A movant in a § 2255 proceeding may not bring a broad-based attack challenging the legality of the conviction. Instead, the range of claims that may be raised in a § 2255 proceeding is narrow and limited to alleging errors of "constitutional or jurisdictional magnitude." United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991).

II. Application

A. Conclusory Claims

The Court initially finds all of Summons's claims are conclusory. Summons fails to make particularized allegations or to identify probative evidence in the record supporting his allegations. The record does not support Summons's claims and, accordingly, the Court finds the claims fatally conclusory and without merit. See United States v. Flores, 135 F.3d 1000, 1006 (5th Cir. 1998); United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980).

B. Waiver

Summons expressly waived his right to collaterally attack his conviction and sentence, except for claims based on the ineffective assistance of counsel or prosecutorial misconduct. This waiver is effective if Summons's guilty plea was knowing and voluntary. United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005); United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Whether a guilty plea is "knowing" focuses on "whether the defendant understands the direct consequences of his plea including the maximum possible penalty," while "voluntariness" concerns "whether the plea was induced by threats, misrepresentation, unfulfilled promises, or improper promises." United States v. Diaz, 516 F. App'x 358, 360 (5th Cir. 2013) (per curiam) (citing United States v. Hernandez, 234 F.3d 252, 255 & n.3 (5th Cir. 2000)). Rule 11 of the Federal Rules of Criminal Procedure provides procedural safeguards for assuring that guilty pleas are voluntary and knowing, by requiring a judge to ensure the defendant understands the law governing his crime in relation to the facts of his case, as well as his rights as a criminal defendant. United States v. Vonn, 535 U.S. 55, 62 (2002).

At the conclusion of Summons's Rule 11 hearing the Magistrate Judge submitted the following findings of fact:

1. The defendant, with the advice of the defendant's attorney, consented to enter this guilty plea before the Magistrate Judge, subject to final approval and sentencing by the District Judge;

2. The defendant fully understands the nature of the charge to which the defendant pled and possible penalties;

3. The defendant understands the defendant's constitutional and statutory rights, that those constitutional and statutory rights can be waived, and the meaning and effect of waiving those constitutional and statutory rights;

4. The defendant waived the right to appeal except in a case in which the sentence imposed is greater than the maximum sentence authorized by statute. The defendant also waived the right to challenge the defendant's conviction or sentence under 28 U.S.C. §§ 2241 and 2255. The defendant did not waive the right to raise a challenge based on ineffective assistance of counsel and prosecutorial misconduct;

5. The defendant's plea was made freely and voluntarily;

6. The defendant is competent to enter this plea of guilty; and

7. There is a factual basis for this plea.

8. The defendant has reviewed the plea agreement carefully with the defendant's attorney. The defendant further advised that the defendant understands the plea agreement and agrees to be bound by the plea agreement.

(ECF No. 20 at 2).

The Fifth Circuit affords "great weight to the defendant's statements at the plea colloquy." United States v. Cothran, 302 F.3d 279, 283-84 (5th Cir. 2002). Furthermore, a petitioner's "clear and unambiguous plea agreement is afforded great evidentiary weight," see United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994), and bald allegations to the contrary are insufficient to merit § 2255 relief. Accordingly, the Court concludes Summons's waiver of his right to attack his conviction and sentence was knowing and voluntary. Therefore, any claims regarding the validity of his conviction and sentence, other than his claims of ineffective assistance of counsel, may be denied and dismissed solely on this basis. Mabry v. Johnson, 467 U.S. 504, 508 (1984); Brady v. United States, 397 U.S. 742, 755-56 (1970).

C. Merits

1. "Due Process Fifth Amendment Violation"

Summons contends: "The statue under which I was charge[d] is too vague that it violates the constitution." (ECF No. 35 at 4).

The Fifth Amendment provides that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." [Supreme Court precedents] establish that the Government violates this guarantee by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Kolender v. Lawson, 461 U.S. 352, 357-358, 103 S. Ct. 1855, 75 L.Ed.2d 903 (1983).

Johnson v. United States, 135 S. Ct. 2551, 2556 (2015).

Summons was convicted of violating 18 U.S.C. §§ 1343 and 1349 (attempt and conspiracy to commit wire fraud) and 18 U.S.C. § 1028A(a)(1) (identity theft). The elements of conspiracy to commit wire fraud are: (1) two or more persons made an agreement to commit an unlawful act; (2) the defendant knew the unlawful purpose of the agreement; and (3) the defendant joined in the agreement willfully, with the intent to further the unlawful purpose. See United States v. Grant, 683 F.3d 639, 643 (...