United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE
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.
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.
Change of Plea
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.
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.
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.
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. 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.
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
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, ...