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Okyere v. United States

United States District Court, D. Maryland, Southern Division

April 25, 2018

LESLIE OKYERE, #66698-019 Petitioner,


          GEORGE J. HAZEL United States District Judge

         On June 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.

         I. BACKGROUND

         On June 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.[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.

         At 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.

         Following 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.


         In 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).

         An 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)).


         Here. Okyere's § 2255 Motion to Vacate fails to meet either prong of the Strickland test, and is therefore denied.

         Okyere 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").

         Regarding 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.

         Regarding 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 ...

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