Adeyale v. USA - 2255, No. 8:2015cv03337 - Document 2 (D. Md. 2018)
Court Description: MEMORANDUM OPINION (c/m to Petitioner 2/22/18 sat). Signed by Judge Deborah K. Chasanow on 2/22/2018. (sat, Chambers)
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Adeyale v. USA - 2255 Doc. 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : BOLARINWA ANDREW ADEYALE : v. : Civil Action No. DKC 15-3337 Criminal No. DKC 10-0596-002 : UNITED STATES OF AMERICA : MEMORANDUM OPINION Presently pending and ready for resolution is the motion to vacate sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Bolarinwa Andrew Adeyale. briefed, and necessary. the court (ECF No. 386). now rules, Local Rule 105.6. no The issues have been hearing being deemed For the following reasons, the motion to vacate will be denied. I. Background On February 12, 2012, Petitioner was convicted of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349, two counts of bank fraud in violation of 18 U.S.C. § 1344, and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. (ECF No. 268; see ECF No. 337-1, at 2). The presentence investigation report (“PSI”) grouped the conspiracy to commit bank fraud and two counts of substantive bank fraud together, found an offense level of 28, and calculated a United States Sentencing Guidelines (“Guidelines” or “USSG”) range Dockets.Justia.com between seventy-eight and ninety-seven months. The aggravated identity theft carried with it a mandatory twenty-four months imprisonment to be imposed consecutively. Prior to sentencing, the Government and Petitioner agreed to reduce the total enhancement from 14 to 12 based “largely on the fact that that [was] the enhancement that was assessed to [Petitioner’s] co-Defendant[.]” (ECF No. 358, at 5). This reduced the sentencing range to between sixty-three and seventyeight months. In his sentencing memorandum, Petitioner’s counsel did not object to the Guidelines range but argued for a below Guidelines sentence. (ECF No. 324). On March 4, 2013, Petitioner received a below Guidelines sentence of 60 months on the bank fraud related offenses along with a consecutive twenty-four months for aggravated identity theft. (ECF No. 328). The United States Court of Appeals for the Fourth Circuit affirmed the sentence. Petitioner filed the pending (ECF No. 337). motion to vacate pursuant to 28 U.S.C. § 2255 on October 30, 2015. 386). II. The Government responded. sentence (ECF No. (ECF No. 389). Standard of Review To be eligible for relief under § 2255, a petitioner must show, by a preponderance of the evidence, that his “sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose 2 such sentence, or that the sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a). A pro se movant, such as Petitioner, is entitled to have his arguments reviewed with appropriate consideration. 1151–53 (4th Cir. 1978). See Gordon v. Leeke, 574 F.2d 1147, But if the § 2255 motion, along with the files and records of the case, conclusively shows that he is not entitled to relief, a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. § 2255(b). To prevail on a claim of ineffective assistance of counsel, a petitioner objectively needs to unreasonable professional norms.” 703 (4th show Cir. that when “counsel’s measured efforts against were prevailing Frazer v. South Carolina, 430 F.3d 696, 2005). “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance[.]” Strickland v. Washington, 466 U.S. 668, 689 (1984). In addition, a petitioner must “there show prejudice meaning that is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.” Id. at 694. III. Analysis Plaintiff object to the argues counsel offense level was ineffective because 3 “the for failing evidence was to not sufficient to enhance [his] sentence for sophisticated means” and for not objecting to the loss amount Government contends that “the loss (ECF No. 386, at 4). amount was based on actual loss[.]” The “[b]oth of because the [Petitioner’s] ineffective assistance claims are meritless[.]” (ECF No. 389, at 2). Petitioner’s counsel was not ineffective for failing to object to a sophisticated means enhancement because Petitioner did not receive a sophisticated means enhancement. does not mention cite a to anything sophisticated in the means Petitioner’s sophisticated scheme, means does The the PSI Government At sentencing, in describing the because nor enhancement. denies Petitioner received one. the record, Petitioner court that did [was] not “want another to say enhancement” which Petitioner did not receive and instead described it as “savvy.” (ECF No. 358, at 31). Therefore, Petitioner’s first claim of ineffective assistance of counsel fails. Petitioner also alleges that the actual loss amount was less than the range used in calculating his offense level. Under the Guidelines, “loss is the greater of actual loss or intended loss.” the amount enhancement, of a USSG § 2B1.1 comment n.3(A). loss for district the purpose court may of “In calculating the consider § the 2B1.1(b)(1) ‘greater of actual loss or intended loss’ and must only make a ‘reasonable 4 estimate’ United of that States v. amount Otuya, based 720 on F.3d available 183, information.” (4th 191 Cir. 2013). Petitioner has not alleged that the range used was higher than the intended loss for his offense, and, therefore, he has failed to state Government a claim had entitling evidence him showing to relief. actual Moreover, loss from the the entire conspiracy of greater than $400,000 and intended loss greater than $1,000,000. (ECF No. 200-1). Counsel negotiated with the Government for a lower loss amount reducing the specific offense characteristics and sentence range. (ECF No. 389, at 7; see ECF No. 358, at 4). Counsel’s failure to object when he would have lost the objection and Petitioner’s sentencing range would have been increased prejudicial. was neither objectively unreasonable nor Petitioner’s motion to vacate sentence will be denied. IV. Certificate of Appealability Pursuant to Rule 11(a) of the Rules Governing Proceedings under 28 U.S.C. §§ 2254 or 2255, the court is also required to issue or deny a certificate of appealability when it enters a final order adverse to the petitioner. A certificate of appealability is a “jurisdictional prerequisite” to an appeal from the court’s order. 659 (4th Cir. 2007). United States v. Hadden, 475 F.3d 652, A certificate of appealability may issue 5 “only if the applicant has made a substantial showing of the denial of a constitutional right.” Upon its review of the § 2253(c)(2). record, the court Petitioner does not satisfy the above standard. finds that Accordingly, it declines to issue a certificate of appealability. V. Conclusion For the foregoing reasons, the motion to vacate sentence filed by Petitioner will be denied. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 6
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