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Beasley v. United States

United States District Court, Fifth Circuit

December 16, 2013

PATRICK BEASLEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION AND ORDER

SHARION AYCOCK, District Judge.

This matter comes before the Court on the pro se motion of Petitioner, Patrick Beasley, filed pursuant to 28 U.S.C. § 2255, to vacate the conviction and sentence imposed on him after he pleaded guilty one count of conspiracy to commit wire fraud pursuant to 18 U.S.C. §§ 371, 1343, 1349, and 2326. Having considered Petitioner's pleadings, as well as the record and the applicable law, the Court finds that the motion should be denied, for the following reasons.

Background

On May 20, 2010, a federal grand jury returned a thirteen-count indictment against Petitioner and seven others for wire fraud and related charges. ( See doc. entry no.1). Petitioner was charged with one count of conspiracy to commit wire fraud and two counts of committing wire fraud. ( See id. ). The conspiracy involved a scheme to defraud victims by having a coconspirator place a telephone call to a victim and inform the victim that they had won a large cash prize that could not be claimed until the victim paid the purported fees and taxes, via wire transfer, to a person named by the caller. ( Id. ). The individual named by the caller - the "runner" - was usually another co-conspirator. ( Id. ).

On June 28, 2011, Petitioner, with the assistance of counsel, entered a plea of guilty to count one of the indictment charging him with conspiracy to commit wire fraud. ( See Plea Tr. 1-23). Petitioner was advised of his rights at the change of plea hearing, including his right to remain silent and his right to proceed to trial. ( Id. at 5-7). He was advised that the penalties included, in part, a term of imprisonment of not more than thirty years. ( Id. at 9). Petitioner waived his rights and entered a plea of guilty to count one of the indictment, i.e., conspiracy to commit wire fraud. ( See id. at 19-20).

The United States Probation Service prepared its initial presentence report ("PSR") following entry of Petitioner's guilty plea. The PSR calculated a base offense level of seven with a fourteen-level increase for the attributed loss, which was $448, 084. ( See PSR 16). A four-level enhancement was imposed because the offense involved fifty or more victims, a twolevel increase was imposed because the offense involved a misrepresentation that the defendants were acting on behalf of a government agency, a two-level enhancement was imposed because the defendant knew or should have known that a victim was a vulnerable victim, and a two-level increase was imposed because the defendant was an organizer or leader of a criminal activity involving five or more participants. ( Id. at 16-17). After adjusting the offense level for a threelevel reduction for acceptance of responsibility, the PSR recommended a total offense level of twenty-eight. ( Id. at 17). The PSR also noted that Petitioner had previously been convicted of wire fraud in the United States District Court for the Eastern District of Wisconsin in a telemarketing scheme that involved twenty victims, the majority of which were elderly. ( Id. at 19). In that scheme, he posed as an IRS and an FBI agent. ( Id. ). The PSR recommended a criminal history score of seven and a criminal history category of IV, which gave Petitioner a guideline range of 110 to 137 months' imprisonment. ( Id. at 23, 28). The PSR also recommended that a variance from the guidelines might be appropriate to address the seriousness of the offense, the need to protect the public from further crimes by the Petitioner, and the need to provide just punishment. ( Id. at 30). Neither Petitioner nor the Government objected to the PSR. ( Id. at 32).[1]

Based on the assistance Petitioner provided to the Government in prosecution of the conspiracy, the Government subsequently filed a motion for downward departure pursuant to § 5K1.1 of the Federal Sentencing Guidelines. At sentencing, the Court adopted the PSR without change. (Sentencing Tr. 6). After considering the Government's § 5K1.1 motion and the relevant factors under 18 U.S.C. § 3553(a)(1), the Court imposed an upward variance and sentenced Petitioner to 190 months' imprisonment on count one of the indictment. Regarding the sentence, the Court stated:

[The sentence is being imposed] to reflect the seriousness of the offense and to promote respect for the law, which I feel that you have failed to observe and that you have repeated the same type of conduct, and it's also for the reason to provide just punishment for this offense.
The Court is constantly reminded in the sentencing in these cases that there were 91 victims, 63 of which were elderly persons, and a lot of money taken from these victims.
The Court is imposing this sentence outside the advisory guideline system also to afford adequate deterrence to criminal conduct for the reason that I've already cited, that I don't feel that any of the leaders and organizers were at all deterred by their previous federal sentences. I trust this sentence will deter your future conduct.
And to protect the public from future crimes of the defendant. I don't recall at this moment the exact number of victims in the previous federal case, but as I recall, it was approximately 30 in that case with substantial restitution owing and has not been paid.
So the Court has taken all of these factors and matters into consideration and feels that a sentence outside the advisory guideline system is warranted.
As you well know, this crime did involve the scamming of elderly persons out of their hard earned money. The Court was very touched and persuaded by the victims who testified in the case.
It's apparent to me that you have no respect for the law. I've taken all of these matters into consideration and tried to fashion a sentence that will provide the just ...

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