BENT v. UNITED STATES OF AMERICA

Filing 6

OPINION. Signed by Judge Dennis M. Cavanaugh on 9/23/13. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RADCLIFFE BENT.
Petitioner,

Hon. Dennis M. Cavanaugh
:

OPINION

v.

No. 2:12-CV-04563 (DMC)

UNITED STATES OF AMERICA,
Respondent.

DENNIS M. CAVANAUGH, U,S.D.J.:
This matter comes before the Court upon the Motion of Petitioner Radcliffe Bent
(“Petitioner”) to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.

§ 2255.

Pursuant

to Fed. R. Civ. P. 78, no oral argument was heard. Afier carefully considering the submissions
of the parties and based upon the following, it is the finding of this Court that Petitioner’s Motion
is denied.
I.

BACKGROUND’

In September 2001, Petitioner opened a shell corporation called Covenant Consulting.
which he operated out of his own home. Petitioner used this shell to induce investors to purchase
worthless shares and promissory notes. He was joined by his co-conspirators Rodney Kadvmir
and Michael Berteletti in 2002, Petitioner and his co-conspirators used Covenant Consulting and
several other shell corporations to defraud investors, and used the diverted funds for their own
personal benefit.

The facts from this section are taken from the parties’ pleadings.

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On April 22, 2009. a grand jurY returned a nine-court Superseding Indictment charging
Petitioner with wire fraud, multiple counts of mail fraud, conspiracy to commit mail and wire
fraud, conspiracy to commit money laundering, and multiple counts of tax evasion. Petitioner
pled guilty before this Court on May 19, 2009 to i) one count of conspiracy to commit mail and
wire fraud in violation of 18 U.S.C.

§

laundering in violation of 18 U.S.C.

§ 1956(h); and iii) one count of tax evasion in violation of 26

1349; ii) one count of conspiracy to commit money

U.S.C. §7201. The Government moved at sentencing to dismiss the remaining six counts in
accordance with the plea agreement. The Presentence Investigation Report (“PSR”) prepared by
the United States Probation Office found that the investors had been defrauded $13,654,369, and

that Petitioner should be held responsible for $7,399,396 of the total amount. The PSR found
that, pursuant to the advisory Sentencing Guidelines, Petitioner’s offense level was a 36 and his
criminal history category was H. These factors recommended a sentencing range of 21 0 to 262

months, This Court sentenced Petitioner to 110 months in pnson and $7,399,396 in restitution.
Petitioner filed a notice of appeal through counsel on August 31. 2010. On November 29.
2010, Petitioner’s counsel filed an Anders brief, arguing that after a review of the record for
appealable issues, none could be found, and therefore seeking to be relieved of representing
Petitioner. On March 17. 2011. Petitioner filed an appeal pro Se. On October 13. 2011. the Third
Circuit denied Petitioner’s appeal and granted Petitioner’s counsel’s motion to withdraw,

Petitioner tiled the present motion on July 16. 201 2 (“Pet. ‘s Mot..” ECF No. I ). The Government
filed a Brief in Response and Opposition on November 7, 2012 (“Gov’s Opp’n,” ECF No, 4).
Petitioner filed a Response on February 21, 2013 (ECF No. 5).
IL

STANDARD OF REVIEW
The District Court has jurisdiction pursuant to 1 8 U.S.C.

§

3231, which provides that

“[t]he district courts of the United States shall have original jurisdiction

.

.

.

of all offenses

against the laws of the United States.” Jurisdiction is also secured pursuant to 28 U.S.C.

§

2255.

which allows this Court, having imposed a sentence upon Petitioner, to vacate, set aside or
correct a sentence upon a showing that “the sentence imposed was in violation of the
Constitution or laws of the United States, this Court lacked 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.”
IlL

DISCUSSION
In order to succeed on an ineffective assistance of counsel claim, Petitioner must

establish that (I) counsels performance was deficient and (2) this inadequate representation
‘prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court “need
not first determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.” Id. at 670. Prejudice is shown if
“there is a reasonable probability that, but for counsel’s unprofessional errors. the result of the
proceeding would have been different.” Id. at 694. In the context of sentencing, “prejudice exists
where the deficient performance affected [the] defendant’s sentence.” United States v.
Hankerson, 496 F.3d 303, 310 (3rd Cir. 2007).
Petitioner has failed to meet Strickland’s prejudice standard and therefore Petitioner’s
counsel’s performance need not be addressed. The primary error alleged by Petitioner is that his
counsel failed to properly investigate the case and submit valid objections to the loss amount
contained in the PSR (Pet.’s Mot. at 6). According to the Federal Sentencing Guidelines,
Petitioner is liable for losses that stem from ‘all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity that occurred during the

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comflhiSSiOn of the offense of conviction, in preparation for that offense, or in the course ol’
attempting to avoid detection or responsibility for that offense,” U.S.S.G.

§

1131 .3(a)(B).

Petitioner asserts that the amount of loss to the investors reasonably foreseeable to him as a
member of the conspiracy is $1,691,198 rather than the $7,399,396 stated in the PSR, and that
this lower amount would have provided Petitioner with a sentence of 70-8 7 months (Pet.’ s Mot.
at 6). The essence of’ Petitioner’s argument is that because he was not the leader of the
conspiracy and was not intimately involved with each individual act, he therefore should have
been able to escape some of the liability. However, this is an incorrect interpretation of the
Sentencing Guidelines, The facts of the case clearly demonstrate that Petitioner formed several
corporate shells and conspired with Berletti and Kadymir to induce investors to purchase
worthless shares of stock and promissory notes (Gov’ s

Opp’n

at 10). Due to the nature of the

crime, it cannot reasonably be said that the defrauding of investors b Petitioner’s co
conspirators was not reasonably foreseeable. Therefore, Petitioner’s argument that further
investigation into this issue by his counsel would have changed his sentence is meritless.
The remaining arguments made by Petitioner are equally unavailing. First, Petitioner
claims that his counsel never objected to the money laundering charge under 18 U.S.C.

§

1956.

Petitioner’s vague argument simply states the following: ‘Clearly, there was no evidence that
could support the representation that Bent ever attempted to ‘conceal or disguise the nature. the
location, the source, the ownership, or the control of the proceeds of specified unlawful activity’
as set forth in 18 U.S.C.

§

1956” (Pet.’s Mot. at 8). However. Petitioner admitted at his plea

hearing that he discussed the indictment with his counsel and that his counsel answered answer
all of his questions about the charges in the indictment (“Plea. Tr.,” Nov. 7, 2012. ECF No. 4.
Ex. 2 at 8). Further, Plaintiff admitted to the facts that give rise to his money laundering charge

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at his plea hearing (Id. at 1 8-1 9). Second. Petitioner argues that his counsel never advised him of
his right to enter an open plea,” which Petitioner contends is a plea that would have preserved
his right to appeal his conviction or sentence (Pet.’s Mot. at 8). This argument cannot stand. as it
is clear from the procedural history of this case that Petitioner has in fact had the right to appeal.
Third, Petitioner claims that his counsel failed to object to material inaccuracies in the PSR and
did not submit a sentencing memorandum to the Court to address the sentencing factors that
must be considered (Id. at 9). However, Petitioner fails to identify what alleged material
inaccuracies his counsel should have objected to. Further. Petitioner s counsel did in lhct submit
a letter to the Court regarding the sentencing factors, and this was acknowledged at Petitioner’s
sentencing ( Sent Ti

Nox 7 2012 ECF No 4 E\ 3 at 6 10) Fouith Pctitionci 11guL’ th

it

his counsel consistently told him that his sentence would be less than the one he ultimately
received (Pet.’s Mot.. Ex. I at 1). However. Petitioner acknowledged at his plea hearing that he
understood that the Court has discretion in determining his sentence and that if he received a
sentence more severe than he expected, he would still be bound by his plea (Plea. Tr. at 14-1 5).
Finally, Petitioner argues that his counsel failed to inform the Court that Petitioner was on mindaltering drugs during the plea hearing (Pet.’ s Mot., Ex. 1 at 1). However, the Court asked
Petitioner whether he was under the influence of drugs at his plea hearing and Petitioner stated.
“I am not” (Plea. Tr. at 7-8).
Not only are the bulk of these allegations conclusory, and/or inaccurate, but Petitioner
has not demonstrated how he has been prejudiced by any of these alleged deficiencies on the part
of his counsel. Accordingly. Petitioners Motion is denied.
I

CONCLUSION
For the reasons stated above. Petitioner’s Motion is denied. An appropriate order follows

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this Opinion.

Date:
Original:
cc:

September 2O13
Clerks Office
Hon. Joseph A. Dickson, U.S.M.J.
All Counsel of Record
File

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