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United States v. Saygbay

United States District Court, D. Minnesota

April 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANCIS SAYGBAY, Defendant.

          Ryan R. Raybould, Thomas W. Flynn, and Dennis R. Kihm, UNITED STATES DEPARTMENT OF JUSTICE, for plaintiff.

          Francis Saygbay, pro se.

          MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          JOHN R. TUNHEIM Chief Judge

         On November 5, 2015, Defendant Francis Saygbay pled guilty to one count of Conspiracy to Defraud the United States, 18 U.S.C. § 371, one count of Aggravated Identity Theft, 18 U.S.C. § 1028A, and two counts of False and Fraudulent Income Tax Returns, 26 U.S.C. § 7206(2). The Court entered judgment on April 13, 2016, imposing a sentence of 40 months' imprisonment. Saygbay moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing the Court applied the United States Sentencing Guidelines Manual (“Guidelines”) incorrectly by (1) failing to apply the proper downward adjustment in offense level based on Saygbay's minor role in the criminal activity, pursuant to U.S.S.G. § 3B1.2, [1] and (2) incorrectly finding that Saygbay's criminal history category at the time of sentencing was II, rather than I.

         The Court will deny Saygbay's motion because his claims are procedurally defaulted and because challenges to the application of the Guidelines are not cognizable claims under § 2255. Furthermore, even in the absence of these procedural barriers, the Court did not incorrectly apply the Guidelines.

         BACKGROUND

         On April 22, 2014, Saygbay was among those indicted on charges of Conspiracy to Defraud the United States, Aggravated Identity Theft, and False and Fraudulent Income Tax Returns. (Second Superseding Indictment, Apr. 22, 2014, Docket No. 118.) On November 5, 2015, Saygbay pled guilty to Count 1 (Conspiracy to Defraud the United States), Count 17 (Aggravated Identity Theft), and Counts 53 and 57 (False and Fraudulent Income Tax Returns). (Plea Agreement & Sentencing Stipulations, Nov. 5, 2015, Docket No. 291.)

         In the factual basis for the Plea Agreement, the parties stipulated that Saygbay's participation in the charged activity began “by at least early 2007” and that on March 14, 2007, Saygbay committed acts amounting to the conduct charged in Count 57. (Id. at 4-5.) In the Plea Agreement, the parties agreed, for sentencing purposes, that the two-point minor role adjustment pursuant to § 3B1.2(b) was applicable. (Id. at 7.) The Plea Agreement also states that the parties “believe[d], but d[id] not stipulate, that the defendant's criminal history category [was] I” and that Saygbay's actual criminal history would be determined by the Court prior to sentencing. (Id. at 8.) Lastly, the Plea Agreement provides that if Saygbay's Adjusted Offense Level under the Guidelines was 19 and his criminal history category was I, the Guidelines range for Counts 1, 53, and 57 would be 30 to 37 months' imprisonment, and that the Aggravated Identity Theft charge carried an additional mandatory 24 months' imprisonment “to run consecutively to any other sentence imposed by the Court.” (Id. at 9.)

         In the Presentence Investigation Report (“PSR”), the United States Probation Office recommended a two-point minor role adjustment pursuant to § 3B1.2(b), as the parties agreed in the Plea Agreement. (PSR at 16, Feb. 8, 2016, Docket No. 308.) The PSR also included, as relevant here, details regarding Saygbay's prior criminal conviction for theft of property in Denton County, Texas. (Id. at 17.) The PSR indicated that, on September 13, 2002, Saygbay pled guilty to the Texas charge and was sentenced to five years' probation. (Id.) Based on this conviction, the PSR recommended a subtotal criminal history score of 1, pursuant to U.S.S.G. § 4A1.1(c), along with the addition of 2 criminal history points pursuant to § 4A1.1(d) because Saygbay committed the instant offense while on probation for the prior crime in Denton County, Texas.[2] (Id. at 17-18.) The PSR concluded that with a criminal history score of 3, Saygbay's criminal history category under U.S.S.G. ch. 5, pt. A was II. (Id. at 18.)

         At sentencing on April 13, 2016, the Court adopted the PSR. (Statement of Reasons at 1, Apr. 28, 2016, Docket No. 359.) Based on an Adjusted Offense Level of 19 and a criminal history category of II, the Court determined the guideline range for Counts 1, 53, and 57 was 33 to 41 months. (Id.) But the Court applied a downward variance for Counts 1, 53, and 57, sentencing Saygbay to just 16 months' imprisonment on those counts. (Id. at 3-4.) The Court imposed the downward variance based on the late filing of the charges and a number of mitigating factors, including Saygbay's history and childhood, significant family responsibilities, relatively minor role in the conspiracy, and minimal criminal history. (Id.) The Court also imposed the mandatory consecutive sentence of 24 months' imprisonment for Count 17, resulting in a total sentence of 40 months' imprisonment. (Id. at 4.)

         Saygbay did not appeal his conviction or sentence. On August 25, 2016, Saygbay filed a pro se motion to vacate, set aside, or correct his sentence pursuant to § 2255, arguing that the Court erred in failing to apply the minor-role adjustment. On September 6, 2016, Saygbay filed an addendum to his motion, arguing that the Court should have applied a criminal history category of I rather than II.

         ANALYSIS

         I. STANDARD OF REVIEW

         Section 2255 permits a prisoner to move the sentencing court to “vacate, set aside or correct the sentence” on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” “Relief under . . . § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete ...


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