Raju v. USA
Filing
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ORDER denying and dismisses Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Robert J. Conrad, Jr on 3/3/16. (Pro se litigant served by US Mail.)(ssh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:15-cv-105-RJC
(3:13-cr-79-RJC-1)
PHANI RAJU BHIMA RAJU,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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ORDER
THIS MATTER is before the Court on Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255, (Doc. No. 1).
I.
BACKGROUND
Petitioner Phani Raju Bhima Raju was the owner and president of iFuturistics, Inc.,
which was billed as an information technology company specializing in software development
and information technology (IT) consulting located in Pineville, North Carolina. (Crim. Case
No. 3:13cr79-RJC-1, Doc. No. 19 at ¶¶ 4-5: PSR). The Department of Homeland Security,
United States Citizenship and Immigration Services’ (USCIS) fraud detection unit investigated
iFuturistics after being notified that the company appeared to be engaged in fraud involving H1B non-immigrant workers. (Id. at ¶ 4). Under the Immigration and Nationality Act,
prospective employers may bring foreign nationals into the United States for employment in
specialty occupations on a temporary basis. (Id., Doc. No. 1 at 1: Bill of Info.). Through the H1B visa program, a prospective employer files a Labor Condition Application (Form ETA-9035)
with the Department of Labor (DOL), listing the location where the foreign national employee
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will be working, the prevailing wage in that area, and the wage that the employer intends to pay
the employee. (Id. at 1-2).
Once the DOL certifies the Labor Condition Application, a prospective employer then
files a Form I-129 petition with the USCIS to obtain an H-1B visa for the non-immigrant foreign
worker. (Id. at 2). This petition includes information about proposed employment, including the
address of the work location, so the USCIS can determine if the petitioning company has
concrete employment plans in place. (Id.). A company that petitions for an H-1B visa must be
an employer, not a hiring agent, and has a responsibility to provide truthful information to the
government, to offer the visa holders qualifying employment, and to pay the visa holders’ wages
during the visa period, which is generally up to three years. (Id.). The company also must not
engage in “benching,” which is the practice of placing visa holders in nonproductive status
without pay while they wait for placement with other employers. (Id.).
At the onset of the investigation, iFuturistics claimed to have 20-25 workers. (Id., Doc.
No. 19 at ¶ 4). The investigation revealed that Petitioner and others recruited foreign nationals to
work in the United States, promising them high salaries. (Id. at ¶ 5). In an effort to obtain H-1B
visas, Petitioner prepared, signed, and submitted DOL forms and I-129 petitions that indicated
that the foreign national employees would be working for iFuturistics in Pineville. (Id.).
Recruited employees were given a “cheat sheet” of questions and answers to help them through
the H-1B interviews. (Id.). In many instances, the people recruited did not receive the job and
salary listed in their visa petitions, but instead were placed at work locations other than in
Pineville, or were “benched” with little or no pay to wait on another work assignment. (Id. at ¶¶
5-6). In July 2009, when iFuturistics reported to USCIS in an I-129 petition that it had thirty
employees, the company had filed approximately 111 successful H-1B petitions. (Id. at ¶ 7). In
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contravention of the H-1B program, iFuturistics had contracts with staffing agencies that
provided workers to companies seeking skilled IT employees. (Id.). iFuturistics filed 263 I-129
petitions with USCIS and received approximately $7.6 million for hiring out foreign nationals
that the company claimed to have hired for itself through the H-1B visa program. (Id. at ¶ 12).
On November 19, 2009, law enforcement and immigration agents visited iFuturistics’
main office in Pineville during regular business hours, but the door to the business was locked,
the building was dark, and no one was working there. (Id.). Agents contacted Petitioner, stating
that they were conducting a site visit. (Id.). Petitioner stated that he could not meet with them
that day, but that he could meet with them the following day. (Id.). However, investigators
observed Petitioner drive by the office while they were still there. (Id.). Before the visit
scheduled for the following day, Petitioner and others moved furniture into the office, set up
work stations, and recruited several people to pretend to be iFuturistic workers. (Id.). However,
when agents returned weeks later on December 7 and 14, the office was dark and empty, as it
had been before the planned inspection. (Id.).
As a result of the investigation, Petitioner was charged in a five-count Bill of Information
with conspiracy to defraud the United States in violation of 18 U.S.C. § 371 (Count One);
presentation of fraudulent immigration documents and aiding and abetting the same in violation
of 18 U.S.C. §§ 2, 1546 (Count Two); unlawful employment of at least ten unauthorized aliens
within a one-year period and aiding and abetting the same in violation of 8 U.S.C. §
1324(a)(3)(A) and 18 U.S.C. § 2 (Count Three); hiring, recruiting, and referring for a fee
unauthorized aliens for employment in violation of 8 U.S.C. § 1324a(a)(1)(A) and 18 U.S.C. § 2
(Count Four); and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h)
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(Count Five).1 (Id., Doc. No. 1: Bill of Info.). Counts One, Three, Four, and Five were alleged
to have taken place from on or about March 20, 2008, to on or about November 28, 2012. (Id.).
Petitioner’s wife was also a target of the investigation. (Doc. No. 8-1 at ¶ 7: Rawls Aff.).
When Petitioner learned this, he asked his retained counsel, Eben T. Rawls, to negotiate a plea
that would exclude his wife from prosecution and that would save their home from forfeiture.
(Id. at ¶ 8). Rawls was able to accomplish this and to secure an agreement that excluded
reference to the fraud guidelines under U.S.S.G. § 2B1.1. (Id. at ¶ 9). Rawls discussed the
nature of the charges, the discovery provided by the Government, the consequences of the
Sentencing Guidelines, and possible defenses to the charges with Petitioner before his plea. (Id.
at ¶ 6). He asked Petitioner to provide him with all documents that might support a defense.
(Id.). Rawls reviewed the terms of the plea agreement, including the applicability of the
enhancements, with Petitioner, who stated that he understood and accepted these terms. (Id. at ¶
9).
Petitioner signed the plea agreement, agreeing to waive indictment and to plead guilty to
all five counts alleged in the Bill of Information. (Id., Doc. No. 3: Plea Agrmt.). As part of the
plea agreement, the Government agreed not to file criminal charges against Petitioner’s wife for
related conduct. (Id. at ¶ 1). Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), the
parties agreed to jointly recommend to the Court that Petitioner’s plea was timely under U.S.S.G.
§ 3E1.1(b) and that a sentence within the applicable guideline range was appropriate, so neither
party would seek a departure or variance. (Id. at ¶ 7). The parties also stipulated that an adjusted
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Petitioner was previously indicted in a related case, No. 3:12CR391, and initially retained
counsel in these proceedings. (Doc. No. 8-1 at ¶ 2: Rawls Aff.). Following Petitioner’s guilty
plea in the present case, the charges in the other case were dismissed without prejudice on the
Government’s motion.
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offense level of 26 applied, based on a base offense level of eleven, a nine-level enhancement
under U.S.S.G. § 2L2.1(a)(2)(C) because the offense involved 100 or more documents, a fourlevel increase under U.S.S.G. § 3B1.1(a) because Petitioner was a leader or organizer of criminal
activity, and a two-level increase under U.S.S.G. § 2S1.1(b)(2) because Petitioner was convicted
of money laundering. (Id.). Petitioner waived the right to contest his conviction or sentence on
direct appeal or in any post-conviction proceeding, except as to claims of ineffective assistance
of counsel or prosecutorial misconduct. (Id. at ¶¶ 15-16). He also agreed that his failure to fully
comply with any provision of the plea agreement, as well as any attempt to withdraw his guilty
plea, would not relieve Petitioner of his obligations under the plea agreement, but would relieve
the Government of its obligations under the plea agreement, would permit the Government to
proceed on any dismissed, pending, or additional charges, and might result in the loss of
acceptance of responsibility. (Id. at ¶ 3).
At the Rule 11 hearing, the terms of the plea agreement were summarized, including the
stipulation that the offense involved 100 or more documents and that Petitioner was an organizer
or leader of criminal activity, and Petitioner stated that he understood the terms of the plea
agreement and agreed to those terms. (Id., Doc. No. 35 at 20-23: Plea Tr.). He testified that he
had sufficient time to discuss possible defenses to the charges with his attorney, that he was
satisfied with his attorney’s services, and that his plea was made voluntarily. (Id. at 23-24). The
magistrate judge found that Petitioner’s plea was knowingly and voluntarily made. (Id. at 26).
In August 2013, Petitioner informed attorney Rawls that he wanted to withdraw his guilty
plea. (Doc. No. 8-1 at ¶ 11). Rawls informed Petitioner that he would not be able to represent
him in that endeavor. (Id.). Given this impasse, Petitioner retained new counsel, and Rawls
withdrew. (Id. at ¶¶ 11-12). Before Rawls’ withdrawal as Petitioner’s attorney, Petitioner never
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requested counsel Rawls to seek an evidentiary hearing on any issues, such as the number of
documents enhancement. (Id. at ¶ 13).
Petitioner’s new counsel Sarah Bennett represented him at sentencing. The probation
officer issued a presentence report (PSR) recommending the same guidelines calculation as the
plea agreement, with the exception of adding a two-level enhancement under U.S.S.G. § 3C1.1
for obstruction of justice. (Crim. Case No. 3:13cr79-RJC-1, Doc. No. 16 at ¶¶ 20-29: PSR).
Allowing a three-level reduction for acceptance of responsibility, this resulted in a total offense
level of 25. (Id. at ¶ 29). Given Petitioner’s criminal history category of I, the advisory
guidelines range was 57-71 months of imprisonment. (Id. at ¶¶ 34; 56). Petitioner filed a
sentencing memorandum requesting the Court to sentence him in accordance with the offense
level agreed to in the plea agreement, which resulted in a sentencing range of 46-57 months of
imprisonment, rather than the one in the PSR. (Id., Doc. No. 24 at 1: Def.’s Sent. Mem.).
At sentencing, the parties stipulated that there was a factual basis to support Petitioner’s
guilty plea and that the Court could rely on the offense conduct in the PSR to establish this
factual basis. (Id., Doc. No. 34 at 2: Sentencing Tr.). Petitioner stated that he had received and
reviewed the PSR and that he had had sufficient time to discuss it with his attorney. (Id. at 3).
The only objection Petitioner raised at sentencing was to the imposition of the two-level
enhancement for obstruction of justice, since that was not part of the plea agreement, and he
alleged that his actions did not impede the investigation. (Id. at 3-6). This Court overruled this
objection and found that the applicable guidelines range was 57-71 months of imprisonment.
(Id. at 8-9). Counsel argued that “Raju has fully admitted to his involvement,” and Petitioner
stated that he took “full accountability” for his actions. (Id. at 14; 18). In light of Petitioner’s
history and characteristics, the Court found that there was a reduced need to protect the public
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and varied downward to impose a 48-month sentence on Counts One, Two, Three, and Five, and
a concurrent six-month sentence on Count Four. (Id. at 25). This sentence fell within the
guidelines range as recommended by the parties in the plea agreement.
Petitioner appealed, and his counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), but questioned whether application of the enhancement for obstruction of
justice was reasonable. Petitioner filed a pro se supplemental brief, arguing that the sentence
imposed was unreasonable because there was no clear evidence to support application of the
enhancements for the number of documents under U.S.S.G. § 2L2.1(b)(2) and for his playing a
leadership role in the offense. See (United States v. Raju, Appeal No. 14-4349, Doc. No. 31-1:
Appellant’s Supp. Brief). He also asserted that he had received ineffective assistance of counsel.
(Id.). The Fourth Circuit affirmed, noting that it had considered the issues raised in Petitioner’s
pro se supplemental brief and found that “[n]either of the sentencing issues has merit,” and that
the record did not conclusively demonstrate that he had received ineffective assistance of
counsel. United States v. Raju, 590 F. App’x 277, 279 n. (4th Cir. 2015).
On March 5, 2015, Petitioner timely filed the present § 2255 motion, arguing that he
received ineffective assistance of counsel and that this Court erred in sentencing him based on
the offense involving 100 or more documents and based on his being a leader or organizer of the
offense. He also requests an evidentiary hearing and re-sentencing. (Id.).
II.
STANDARD OF REVIEW
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
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argument 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 (4th Cir. 1970).
III.
DISCUSSION
A. Petitioner’s Claims of Ineffective Assistance of Counsel
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 a deficient
performance by counsel and, second, that the deficient performance prejudiced him. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In making this determination, there is
“a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689; see also United States v. Luck, 611 F.3d 183, 186 (4th Cir.
2010). Furthermore, in considering the prejudice prong of the analysis, the Court “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 (4th 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 (4th Cir. 2008). If the
petitioner fails to meet this burden, a “reviewing court need not even consider the performance
prong.” United States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on other
grounds, 218 F.3d 310 (4th Cir. 2000).
To establish prejudice in the context of a guilty plea, a petitioner must show that “there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) (quoting
Hill v. Lockhart, 474 U.S. 52, 59 (1985)). In evaluating such a claim, statements made by a
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defendant under oath at the plea hearing carry a “strong presumption of verity” and present a
“formidable barrier” to subsequent collateral attacks. Blackledge v. Allison, 431 U.S. 63, 73-74
(1977). Indeed, “in the absence of extraordinary circumstances, the truth of sworn statements
made during a Rule 11 colloquy is conclusively established, and a district court should dismiss . .
. any § 2255 motion that necessarily relies on allegations that contradict the sworn statements.”
United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005).
Petitioner first argues that counsel Eben Rawls provided ineffective assistance by failing to
adequately investigate the case before Petitioner’s plea. (Doc. No. 1 at 4). In particular, he
asserts that counsel wrongly advised him to sign the plea agreement, which included a stipulation
that the number of documents involved exceeded 100. Petitioner claims that the record does not
support a finding that the number of documents involved exceeded 100. (Id.). Petitioner argues
that counsel later admitted that he believed, when advising Petitioner, that each page of a
document constituted a document under U.S.S.G. § 2L2.1, rather than treating a set of documents
for a single person as one document. (Id. at 5; 33). Petitioner contends that counsel refused to
request an evidentiary hearing after discovering the error regarding the number of documents
enhancement. (Id.). Petitioner contends that this is the reason that counsel left the case and that
counsel’s actions resulted in Petitioner receiving a longer sentence than that imposed on others
charged with similar conduct. (Id. at 4; 26; 30; 33-34; 36).
Petitioner contends that counsel should have obtained iFuturistics’ records, as well as
records from USCIS, before advising him to sign the plea agreement. (Id. at 34). Petitioner
asserts that he “is absolutely convinced that the total number of documents or petitions filed
during the alleged period” that listed Pineville as the work location was “around twenty-four.”
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(Id. at 31). He notes that, although the PSR states that iFuturistics filed 263 I-129 petitions, the
PSR does not indicate when these petitions were filed. (Id. at 37).
Petitioner’s speculative assertions are insufficient to meet his burden to establish
deficient performance. See United States v. Dyess, 730 F.3d 354, 359-60 (4th Cir. 2013)
(holding it was proper to dismiss § 2255 claims based on vague and conclusory allegations), cert.
denied, 135 S. Ct. 47 (2014). That is, Petitioner’s contention that he believes that the number of
documents was twenty-four is conclusory. He takes issue with counsel’s alleged failure to obtain
iFuturistics’ documents during the course of the case. However, despite that Petitioner was the
owner and president of iFuturistics and, thus, could access his own company records, he provides
no documentation to support his contention regarding the number of documents.
Furthermore, rather than contending simply that over 100 documents were not
fraudulently submitted, Petitioner asserts that this number was not submitted within the time
frame alleged in the Bill of Information or did not list Pineville as the work site. See (Doc. No. 1
at 27-28; 32). However, even without Petitioner’s stipulation in the plea agreement as to the
number of documents involved in the offense, he could have been sentenced for documents
submitted outside of the dates alleged in the Bill of Information as long as they “were part of the
same course of conduct or common scheme or plan.” U.S.S.G. § 1B1.3(a)(2). Additionally,
even if Pineville was not listed as the worksite location, the documents would have been
fraudulent if the employee was not working for the petitioning employer, iFuturistics, and,
therefore, also could have been included to support the sentence enhancement. Regardless of
Petitioner’s assertions, the evidence was sufficient to support application of the enhancement.
As the PSR showed, in July 2009, the company reported to USCIS that it only had thirty
employees and, at that time, it had filed 111 successful H-1B petitions. (Id., Doc. No. 19 at ¶ 7).
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The offense conduct continued for more than three years after this, and the investigation showed
that iFuturistics filed 263 I-129 petitions with USCIS. (Id. at ¶ 12). Yet, the iFuturistics office
in Pineville was observed to be dark and empty. (Id. at ¶ 11). Because the evidence supported
the enhancement, counsel was not deficient in advising Petitioner to agree to this as part of the
plea agreement. See Strickland, 466 U.S. at 687-88.
Moreover, the affidavit submitted by attorney Rawls also supports a finding there was no
deficient performance. Rawls attests that he investigated the case and discussed the discovery
produced by the Government, as well as any possible defenses with Petitioner, and asked
Petitioner to provide any documents supporting a defense. (Doc. No. 8-1 at ¶ 6). He also
discussed all of the specific offense characteristics with Petitioner before Petitioner pled guilty
and properly advised him regarding the document enhancement. (Id. at ¶ 9). Rawls further
asserts that he did not withdraw from representing Petitioner due to inaccurate advice regarding
application of the enhancement for the number of documents involved in the offense. Rather, he
withdrew based on Petitioner’s representation that he wanted to withdraw his guilty plea. (Id. at
¶ 11). In sum, the Court finds that counsel’s performance was objectively reasonable. See
Strickland, 466 U.S. at 687-88.
Even if Petitioner could show deficient performance, he cannot establish prejudice
because he does not allege that, but for counsel’s performance, he would not have pleaded guilty.
See Meyer, 506 F.3d at 369. Petitioner’s desire to retain the benefits of the plea agreement is
evident from the relief he seeks with this motion, which is not to set aside the plea agreement and
proceed to trial, but rather to void only the enhancements and to be resentenced. See (Doc. No.
1 at 57). Given the terms of the plea agreement that protected his wife from prosecution, as well
as his home from criminal forfeiture, any contention to the contrary would not be objectively
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reasonable. See United States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012). Petitioner’s assertion
that he was prejudiced because he received a higher sentence than he would have if the number
of documents had not been part of his plea agreement is insufficient to establish prejudice under
Strickland. See Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 (4th Cir. 1992) (holding an
allegation that effective counsel would have negotiated a better plea agreement is insufficient to
establish prejudice under Strickland). Accordingly, this part of Petitioner’s ineffective assistance
of counsel claim fails as a matter of law.
As part of his ineffective assistance of counsel claim, and despite that he was given a
downward variance at sentencing, Petitioner next contends that his sentencing counsel, Sarah
Bennett, provided ineffective assistance at sentencing. Petitioner asserts that counsel did not
provide mitigating evidence at sentencing. (Doc. No. 1 at 4). He argues that because counsel
rescheduled the interview with the probation officer several times, the probation officer “skipped
several critical sections” of the PSR, that counsel prevented him during the interview with the
probation officer from presenting evidence that Petitioner believed would mitigate some of the
enhancements, and that counsel did not file an objection to the enhancement for obstruction of
justice. (Id. at 25-26). He argues that counsel should have requested an evidentiary hearing at
sentencing to require the production of evidence to support the enhancements. (Id. at 51-54). In
particular, he contends that he was sentenced for documents or petitions that were filed outside
of the time period alleged in the Bill of Information. (Id. at 21-22).
To establish prejudice based on ineffective assistance at sentencing, a petitioner must
show that there is a reasonable probability that he would have received a more lenient sentence,
but for counsel’s deficient performance. Royal v. Taylor, 188 F.3d 239, 249 (4th Cir. 1999).
Where a party stipulates to a fact or an element of an offense, this waives the requirement that
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the government be put to its burden of proof. See United States v. Clark, 993 F.2d 402, 406 (4th
Cir. 1993). This includes stipulations as to sentencing enhancements. See United States v.
Yooho Weon, 722 F.3d 583, 589 (4th Cir. 2013). Requiring a hearing on issues to which the
parties agree would eliminate the “‘chief virtues of the plea system—speed, economy, and
finality.’” United States v. Wiggins, 905 F.2d 51, 54 (4th Cir. 1990) (quoting Blackledge v.
Allison, 431 U.S. 63, 71 (1977)).
Petitioner’s allegations do not establish deficient performance or prejudice. He does not
specify what sections of the PSR were “skipped,” nor does he allege how this prejudiced him.
See Dyess, 730 F.3d at 359-60. Similarly, Petitioner’s contention that counsel prevented him
from providing unspecified evidence that he believed would mitigate some of the enhancements
is also conclusory. Moreover, given his stipulation to the enhancements, this was not deficient
performance. Because Petitioner stipulated to the enhancements as part of his plea agreement,
the request for an evidentiary hearing or the presentation of any evidence or argument that these
enhancements did not apply risked violating the plea agreement’s terms and relieving the
Government of its obligations under the agreement, including the agreement not to prosecute
Petitioner’s wife and the Government’s recommendation regarding acceptance of responsibility.
Counsel’s conduct in acting in accordance with the plea agreement, which stipulated to the
enhancements, was therefore objectively reasonable. See Strickland, 466 U.S. at 687-88.
Moreover, although Petitioner contends that counsel was ineffective for failing to object to the
enhancement for obstruction of justice, counsel, in fact, argued in Petitioner’s sentencing
memorandum that Petitioner should be sentenced in accordance with the offense level stipulated
to in his plea agreement, rather than that found by the probation officer in the PSR. See (Crim.
Case No. 3:13cr79-RJC-1, Doc. No. 24 at 1). Furthermore, counsel argued at sentencing that the
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Court should not apply the obstruction of justice enhancement. (Id., Doc. No. 34 at 3-6). In any
event, Petitioner has not shown how counsel’s conduct prejudiced him. As the Court noted
previously, although the Court ended up applying the obstruction of justice enhancement at
sentencing, the Court nonetheless varied downward to give Petitioner a sentence the parties had
agreed to in the plea agreement.
Finally, to the extent that Petitioner argues that he somehow received ineffective
assistance of counsel because he was sentenced based on documents filed outside of the time
period alleged in the Bill of Information, he fails to recognize that the timing of the submission
of the documents does not change any element of the offense, so inclusion of such conduct
would not constructively amend the charging document. See United States v. Kilgore, 401 F.
App’x 842, 844 (4th Cir. 2010) (evidence of conduct occurring after date of alleged conspiracy
did not constructively amend the indictment). Also, under the Sentencing Guidelines, Petitioner
could be sentenced for relevant conduct, which includes conduct that is not formally charged and
may include acts that fall outside of the timeframe alleged in the charging document. See United
States v. Kennedy, 32 F.3d 876, 890 (4th Cir. 1994). Moreover, the Fourth Circuit held on
Petitioner’s appeal that these enhancements were properly included in Petitioner’s guidelines
range. See Raju, 590 F. App’x at 279 n. Thus, Petitioner cannot show a reasonable probability
that he would have received a lower sentence but for counsel’s conduct. See Royal, 188 F.3d at
249.
In sum, even if Petitioner’s assertions of deficient performance are accepted, he cannot
show prejudice with respect to his plea where he does not allege that he would have proceeded to
trial but for counsel’s performance, and he cannot show prejudice with respect to his sentence
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where he stipulated to the enhancements for the number of documents and his leadership role,
and the Fourth Circuit found that application of these enhancements was reasonable.
B. Petitioner’s Claim of Error by the Court at Sentencing
Petitioner next asserts that this Court erred by sentencing him under the enhancement for
his offense involving 100 or more documents and under the enhancement for being a leader or
organizer without holding an evidentiary hearing. (Doc. No. 1 at 7-8; 27). He contends that this
violated his right to due process. (Id. at 7). Although Petitioner admits that he raised “similar
arguments” on appeal,2 he contends that review is not barred because the Fourth Circuit “did not
delve into the merits of the issues.” (Id. at 20 n.1). Because Petitioner waived the right to appeal
his sentence in any post-conviction proceeding, these claims are barred by the terms of his plea
agreement. The exceptions for claims of ineffective assistance and prosecutorial misconduct do
not apply, because Petitioner is directly challenging his sentence. A knowing and voluntary
waiver of the right to pursue post-conviction relief is enforceable. See United States v.
Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). Here, there is no allegation of involuntariness, and
any such allegation would be frivolous because it would contradict Petitioner’s testimony at the
plea hearing. Accordingly, this portion of Petitioner’s § 2255 motion is barred by the waiver in
his plea agreement.
Even if Petitioner had not waived the right to challenge his sentence, because he raised
these sentencing issues on direct appeal and the Fourth Circuit found that they were without
merit, he may not re-litigate them on collateral review. See Boeckenhaupt v. United States, 537
F.2d 1182, 1183 (4th Cir. 1976) (claims considered on direct review may not be recast “under
2
To the extent Petitioner claims that his motion raises any new issues, these issues would be
procedurally barred. See Bousley v. United States, 523 U.S. 614, 621-22 (1998).
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the guise of collateral attack”). Accordingly, Petitioner’s challenge to enhancement of his
sentence based on the number of documents and his leadership role in the offense must be
dismissed.
In sum, Petitioner’s second claim is without merit.
IV.
CONCLUSION
For the foregoing reasons, the Court denies and dismisses Petitioner’s § 2255 petition.
IT IS, THEREFORE, ORDERED that:
1.
Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255, (Doc. No. 1), is DENIED and DISMISSED.
2.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 and Section 2255 Cases, this Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 338 (2003) (in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 473,
484 (2000) (when relief is denied on procedural grounds, a petitioner must
establish both that the dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a constitutional right).
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