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Pendleton v. United States

United States District Court, N.D. Mississippi, Greenville Division

August 7, 2017

PATRICK PENDLETON MOVANT
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION AND ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         Before the Court is Patrick Pendleton's “Motion Under 28 U.S.C § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.” Doc. #64.[1]

         I

         Procedural History

         On June 26, 2015, Patrick F. Pendleton was named in two-count indictment charging him with one count of conspiracy to commit healthcare fraud (Count One) and one count of healthcare fraud (Count Two). Doc. #1.

         A. Change of Plea

         On December 16, 2016, Pendleton, pursuant to a plea agreement in which the Government agreed to dismiss Count Two at the conclusion of sentencing, pled guilty to Count One. Doc. #37; Doc. #39. At his plea hearing, Pendleton admitted that he conspired with Sandra Livingston, Lara Thompson, and others known and unknown to the grand jury, to defraud a healthcare benefit program. Doc. #71 at 8, 15, 21; see also Doc. #1 at ¶ 9. Pendleton also agreed with the Government's factual basis for the plea, which stated that Pendleton was a patient recruiter for numerous hospice providers who “solicited and recruited potential hospice patients in the Northern District of Mississippi, including Bolivar County, Mississippi, who were not hospice appropriate in return for a per-patient fee paid by the hospice providers that received the recruited patients.” Doc. #71 at 14-17. At the conclusion of the plea hearing, the Court accepted Pendleton's plea agreement and related plea supplement. Of relevance here, the plea supplement provides:

the defendant hereby expressly waives all rights of appeal as to any and all issues in this case, ... as well as all rights to contest or collaterally attack the conviction and/or sentence, and the manner in which the sentence was imposed, in any post-conviction proceeding, including but not limited to a motion brought pursuant to 28 U.S.C. § 2255; except to claims relating to prosecutorial misconduct and ineffective assistance of counsel. This waiver is made in exchange for the concessions made by the United States in this Plea Agreement.

Doc. #38 at 3.[2]

         B. Sentencing Documents

         The Pre-Sentence Investigation Report (“PSR”) prepared by the United States Probation Service stated, among other things, that “according to case material, the defendant ... utilized others (e.g., Marvin ‘Shawn' Pendleton, Roy Milton Neal, and Tori Beth McClain), who under the defendant's direction recruited patients or assisted with patient recruitment.” Doc. #59 at ¶ 14. Based on this stated role of Pendleton in the conspiracy, the PSR included a three-point enhancement of Pendleton's offense level under § 3B1.1(b) of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) for Pendleton's leadership role in the offense. Doc. #59 at ¶ 30. With this enhancement, Pendleton's calculated Guidelines range in the PSR was 33 to 41 months. Id. at ¶ 79.

         On March 22, 2016, the Government filed a motion for downward departure under the Guidelines. Doc. #44. Pendleton submitted a sentencing memorandum the next day. Doc. #45.

         C. Sentencing Hearing

         On May 3, 2016, Pendleton appeared before the Court for sentencing. Doc. #53. At his sentencing hearing, Pendleton raised an objection to the three-point enhancement to his Guidelines offense level.[3] Doc. #72 at 5-11. Pendleton conceded that he supervised one individual (McClain) but argued that because the Indictment only set forth that he conspired with Sandra Livingston and Lara Thompson, the three-point enhancement requiring five or more participants should not apply. Id. at 11, 13-14. Additionally, during his statement, Pendleton's counsel remarked: “[Pendleton] does the patient recruiting. He gets people under him. Now he is a supervisor. He's working for a couple of people. He has a couple of people working for him.” Id. at 37.

         After hearing the parties' arguments, the Court overruled Pendleton's objection to the leadership enhancement, adopted the PSR as its findings of fact, and held that based on the factual basis underlying Pendleton's guilty plea and the undisputed facts in the PSR, the three-point enhancement was justified. Id. at 15, 17. The Court granted the government's motion for downward departure based on Pendleton's substantial assistance, noting that an upward variance would have been justified otherwise, and sentenced Pendleton to a 40-month term of imprisonment. Id. at 45. On the Government's motion, the Court then dismissed Count Two of the indictment. Id. at 48.

         Pendleton did not object to his sentence or pursue a direct appeal. However, on or about February 24, 2017, Pendleton filed the instant § 2255 motion, acting pro se. Doc. #64. The Government responded on April 26, ...


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