United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
8. 2016. the Court sentenced Petitioner Leslie Okyere to 66
months in prison following his guilty plea to violations of
18 U.S.C. §§ 1028A (Aggravated Identity Theft),
1029(a)(2) (Use of Unauthorized Access Device). 1029(c)
(Aiding and Abetting: Forfeiture). 1349. and 1344 (Conspiracy
to Commit Bank Fraud: Forfeiture). ECF No. 129. On June 2.
2017. Okyere tiled a Motion to Vacate, Set Aside, or Correct
Sentence ("Motion to Vacate") under 28 U.S.C.
§ 2255, which is currently pending before the Court. ECF
No. 163. Respondent, United States of America, filed a
Response brief. ECF No. 171. and Okyere tiled a Reply brief.
ECF No. 172. No hearing is necessary. See Loc. R.
105.6 (D. Md. 2016). For the following reasons. Okyere's
Motion to Vacate is denied.
8. 2016. this Court sentenced Okyere to 66 months
imprisonment for his involvement in a bank fraud conspiracy
in violation of several federal laws. ECF No. 129. Prior to
his sentencing, on March 7. 2016. Okyere entered into a plea
agreement with the Government in which Okyere agreed to plead
guilty to violations of 18 U.S.C. § 1349 (Conspiracy to
Commit Bank Fraud. Count One of the Indictment). 18 U.S.C.
§ 1029(a)(2) (Use of an Unauthorized Access Device.
Count Three of the Indictment), and 18 U.S.C. § 1028A
(Aggravated Identity Theft. Count Seven of the Indictment).
ECF No. 91 at 1. The parties agreed that for Count
One. Okyere's base offense level was 7: that a 12-level
increase applied because the loss amount was at least more
than $250, 000; and that a 2-level increase applied because
the offense involved more than 10 victims. Id. at
4-5. The parties also agreed to a set of stipulated facts,
attached to the plea agreement, which specified the nature of
the conspiracy and Okyere's involvement therein.
See ECF No. 91-1. There, the parties again agreed
that the "total loss reasonably attributable to the
Defendant's conduct was at least $250, 000."
Id. at 2.
Okyere's sentencing, the Court found that the total toss
amount was more than $550, 000 but less than $1 million,
warranting a 14 level increase: that the offense involved 10
or more victims, warranting a 2 level increase; that Okyere
was a leader or organizer of criminal activity involving five
or more people, warranting a four level increase; and that
Okyere had accepted responsibility, warranting a three level
decrease. ECF No. 144 at 76. The Court also found that Okyere
was appropriately placed in a criminal history category One.
and that the sentencing guidelines for Counts One and Three
was 51 to 63 months, hi. In addition. Count Seven
carried with it a two-year mandatory consecutive term, so the
total sentencing guideline range would have been 75 to 87
months. Id. at 77. After hearing argument from the
Government as well as Okyere's counsel, the Court varied
downward from the guideline range, and imposed a term of 66
months. ECF No. 144 at 96.
his sentencing. Okyere appealed to the Fourth Circuit. ECF
No. 133. However. he later voluntarily dismissed his appeal.
ECF No. 154. On June 2. 201 7, Okyere tiled the now pending
Motion to Vacate. ECF No. 163. In it, Okyere argues that his
sentence should be vacated because his constitutional rights
were violated in a number of ways. ECF No. 163 at 4. First,
he argues that his trial counsel should have objected to the
Government's reliance on statements made by Okyere's
co-conspirators, because the Government should have ordered
the transcripts from Mr. Obeng's sentencing hearing for
Okyere, and should have put the co-conspirator's plea
agreement into evidence. Id. at 5. Second. Okyere
argues that he told his attorney to file an appeal on his
behalf, but that his attorney did not do so. Id., at
7-8. Third. Okyere argues that the Court should not have
found that the 2-level enhancement for an offense involving
10 victims applied. Id. at 10. Finally, in his Reply
brief, Okyere argues that the total amount of loss is much
less than $250, 000. and points out that the amount listed in
the Indictment is only $72, 674.76. ECF No. 172 at 5.
STANDARD OF REVIEW
order to be entitled to relief under 28 U.S.C. § 2255. a
petitioner must prove by a preponderance of the evidence that
"the sentence was imposed in violation of the
Constitution or 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." 28 U.S.C. § 2255(a); see also United
Stales v. Moore. 993 F.2d 1541 (4th Cir. 1993)
(unpublished) (citing Vanater v. Botes. 377 F.2d 898
(4th Cir. 1967)). A pro se petitioner is. of course,
entitled to have his arguments reviewed with appropriate
consideration. See Gordon v. Leeke. 574 F.2d 1147.
1151-53 (4th Cir. 1978). Where, however, a § 2255
petition, along with the files and records of the case,
conclusively shows the petitioner is not entitled to relief,
a hearing on the motion is unnecessary and the claims raised
therein may be dismissed summarily. 28 U.S.C. § 2255(b).
ineffective assistance of counsel claim is governed by the
two-part test set forth in Strickland v. Washington,
466 U.S. 668 (1984). "Pursuant to that test, to prevail
on an ineffective assistance claim, a petitioner must
establish that (1) counsel's performance was deficient
and (2) there is a reasonable probability that the deficiency
prejudiced the defense." Merzhacher v. Shearin.
706 F.3d 356. 363 (4th Cir. 2013) (citing
Strickland. 466 U.S. at 687. 694). To establish that
counsel's performance was deficient, a petitioner
"must show that counsel's representation fell below
an objective standard of reasonableness." Id.
(citing Strickland. 466 U.S. at 688). However,
"[c]ourts "indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.' in order to avoid
'the distorting effects of hindsight.""
Id. (quoting Yarhrough v. Johnson. 520 F.3d
329, 337 (4th Cir. 2008)). To establish prejudice, a
petitioner "must show that "but for counsel's
unprofessional errors, the result of the proceeding would
have been different.'" Id. (quoting
Strickland. 466 U.S. at 694). Furthermore. a
petitioner must show that counsel's "error worked to
his 'actual and substantial disadvantage." not
merely that the error created a 'possibility of
prejudice."' Satcher v. Pruett, 126 F.3d
561. 572 (4th Cir. 1997) (quoting Murray v. Carrier,
477 U.S. 478. 494 (1986)).
Okyere's § 2255 Motion to Vacate fails to meet
either prong of the Strickland test, and is
has not shown that his counsel's "performance was
deficient" below "an objective standard of
reasonableness." Regarding his first point, that his
counsel should have objected because the Government did not
obtain the transcript of Okyere's co-conspirator's
sentencing hearing, the Court finds that this did not fall
below an objective standard of reasonable representation. The
majority of the evidence introduced regarding his co-
conspirator's statements came in through Special Agent
Jacob Heminger. who summarized the results of his
investigation. ECF No. 144 at 7-46. Okyere does not point to
any requirement that the Government was required to provide
him with prior statements of his co-conspirator, the
co-conspirator's plea agreement or the transcripts of the
co-conspirator's sentencing hearing. In fact, Okyere
acknowledges that at a sentencing hearing not all evidentiary
and constitutional protections apply, including those related
to hearsay and the Confrontation Clause. See United
Stales v. Pudrtm-Yiuwz. 433 Fed.Appx. 189. 190-191 (4th
Cir. 2011); ECF No. 1 at 8 ("Petitioner, is aware that
'hear say" can be presented and considered during a
sentencing [sic] hearing").
Okyere's second point, that his attorney did not appeal
his sentence, this is simply untrue. On June 14, 2016,
Okyere's attorney filed a Notice of Appeal with the
Court. ECF No. 133. Another attorney was substituted for
Okeyere's trial attorney, and Okyere voluntarily withdrew
his appeal on February 27, 2017. ECF No. 154.
his third and fourth points. Okyere argues that his trial
attorney did not represent him reasonably because he failed
to object to certain factual issues contained in the plea
agreement (the 2-level enhancement and the total amount of
loss). However, these are facts contained within Okyere's
plea agreement and the attached stipulated facts: Okyere went
over the details of his plea agreement with his attorney, and
was specifically advised of the terms of the agreement at his
plea hearing on March 7. 2016. When he signed the plea
agreement, Okyere agreed that he was knowingly and
voluntarily accepting the terms. ECF No. 143 at 25.
Furthermore. Okyere acknowledged to the Court that he was
satisfied with the job that his attorney had done on his
behalf, id. Even now, Okyere does not contend that
he was unaware of any part of the plea agreement, or that he
did not understand its impact; rather, he argues that his
attorney should have objected and not let him enter into the
agreement, yet fails to cite any authority for his position.
Okyere was provided with competent ...