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United States v. Herman

United States District Court, D. Minnesota

February 21, 2017

United States of America, Plaintiff,
v.
Tyrone R. Herman, Defendant.

          ORDER

          JOAN N. ERICKSEN, UNITED STATES DISTRICT JUDGE

         Order Defendant filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (2012). For the reasons set forth below, the Court denies the motion and declines to issue a certificate of appealability.

         In September 2014, the United States filed an Information that charged Defendant with one count of wire fraud. The next month, Defendant waived prosecution by indictment and entered a guilty plea. Defendant retained Eric Olson to represent him. Mr. Olson represented Defendant through sentencing.

         In the plea agreement, the parties calculated the guideline range of imprisonment to be 78-97 months. The calculation was based on a total offense level of 28 and a criminal history category of I. The parties agreed that the base offense level was 7. They agreed to a 20-level increase because the loss exceeded $7 million and was less than $20 million, a 2-level increase because the offense involved at least 10 victims, and a 2-level increase because the offense involved sophisticated means. The United States agreed to recommend that Defendant receive a 3-level reduction for acceptance of responsibility and to make any appropriate motions. Defendant understood and agreed that the recommendation was subject to the following conditions: (1) Defendant “testifies truthfully during the change of plea and sentencing hearings”; (2) Defendant “provides complete and truthful information to the Probation Office in the pre-sentence investigation”; and (3) Defendant “commits no further acts inconsistent with acceptance of responsibility.”

         The parties acknowledged that their calculation of the sentencing guidelines did not bind the Court:

The foregoing stipulations are binding on the parties, but do not bind the Court. The parties understand that the Sentencing Guidelines are advisory and their application is a matter that falls solely within the Court's discretion. The Court may make its own determination regarding the applicable Guidelines factors and the applicable criminal history category. The Court may also depart from the applicable Guidelines range. If the Court determines that the applicable guideline calculations or the defendant's criminal history category are different from that stated above, the parties may not withdraw from this agreement, and the defendant will be sentenced pursuant to the Court's determinations.

         Under certain conditions, Defendant agreed to waive his rights to appeal his sentence and to file a motion under § 2255:

The defendant understands that 18 U.S.C. § 3742 affords the defendant the right to appeal the sentence imposed in this case. Acknowledging this right, and in exchange for the concessions made by the United States in this plea agreement, the defendant hereby waives all rights conferred by 18 U.S.C. § 3742 to appeal defendant's sentence, unless the sentence exceeds 97 months. . . . In addition, the defendant expressly waives the right to petition under 28 U.S.C. § 2255. However, the waivers noted above shall not apply to a post-conviction collateral attack or direct appeal based on a claim of ineffective assistance of counsel. The defendant has discussed these rights with the defendant's attorney. The defendant understands the rights being waived, and the defendant waives these rights knowingly, intelligently, and voluntarily.

         Based on a total offense level of 33 and a criminal history category of I, the presentence investigation report calculated the guideline range of imprisonment to be 135-168 months. The calculation was based on a base offense level of 7, a 22-level increase because the loss was more than $20 million but not more than $50 million, a 2-level increase because the offense involved at least 10 victims but less than 50 victims, and a 2-level increase because the offense involved sophisticated means. No reduction for acceptance of responsibility was applied.

         The United States objected to the presentence investigation report's loss amount:

The United States acknowledges that, based on additional information received from investors, the intended loss amount now exceeds $20 million as stated in the presentence investigation report. However, at the time the United States entered into its agreement with the defendant, the loss amount known to the United States was under $20 million (approximately $19.4 million). Therefore the United States objects to a 22-level enhancement and stands by its calculation in the plea agreement that only 20 levels should be added under USSG §2B1.1(b)(1)(K).

         Defendant's objections related to the loss amount and acceptance of responsibility.

         As to the loss amount, Defendant stated:

The defendant believes that the amount of loss should be offset by what he repaid some of the victims; therefore the amount of loss would be under $20 million. Moreover, [Defendant] entered into an agreement with the Government to resolve this case in a timely fashion and the parties agreed to an amount of loss between $7 and 20 million. Additionally, the defendant objects to the loss amounts attributed to . . . as it relates to . . . and its request for attorney fees. ...

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