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United States v. Lindsey

United States District Court, D. Minnesota

August 14, 2017

United States of America, Respondent-Plaintiff,
v.
Christopher Lindsey, Petitioner-Defendant. Civil No. 17-1178 (DWF)

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         This matter is before the Court on Petitioner-Defendant Christopher Lindsey's (“Petitioner-Defendant”) pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Doc. No. 76.) The United States of America (the “Government”) opposes Petitioner-Defendant's petition. (Doc. No. 79.)

         Petitioner-Defendant alleges that his counsel was ineffective, asserting three grounds for relief. First, he asserts that his trial counsel was ineffective for failing to object to the loss enhancement recommended in the Presentence Investigation Report (“PSR”) (Memo. in Support, Doc. No. 77 at 2-3). Secondly, Petitioner-Defendant asserts that his counsel was ineffective for failure to object to the enhancement for more than fifty victims. Id. at 3. Thirdly, Petitioner-Defendant contends that his counsel was ineffective for failing to investigate the Government's loss figures, which he now asserts resulted in this Court holding him liable for losses of $1, 358, 938.17. For the reasons that the Court discusses below, the Court denies Petitioner-Defendant's motion.

         BACKGROUND

         On August 26, 2014, Petitioner-Defendant entered pleas of guilty to three counts of the twenty-three-count indictment, pursuant to a plea agreement: namely, Count 1, conspiracy to commit bank and wire fraud; Count 17, aggravated identity theft; and, Count 21, conspiracy to defraud the United States. (Id. ¶ 2.)

         In the plea agreement, the parties stipulated to a total offense level of thirty as to Counts 1 and 21. (Plea Agreement, Doc. No. 34, ¶ 6.) This included a base offense level of seven, plus the following enhancements and a three-level reduction for acceptance of responsibility:

§ 2B1.1(b)(1)(G), loss more than $1, 000, 000
§ 2B1.1(b)(2)(A), more than 50 victims but less than 250
§ 2B1.1(b)(10), sophisticated means
§ 3B1.1(a), organizer or leader

(Id.) As to Count 17, the parties stipulated that the guideline term of imprisonment is a consecutive term of twenty-four months, as mandated by statute. (Id.) In return, the Government agreed to dismiss Counts 2 through 16, 18 through 20, 22, and 23. (PSR ¶ 140.) The guideline calculation set forth in the PSR, and adopted by this Court, did not differ from the plea agreement except that the PSR calculated a lesser criminal history category, namely, category V, instead of category VI, as contemplated in the plea agreement. (Id. ¶¶ 51-69, 93.) Petitioner-Defendant's counsel made no objections to the PSR.

         On April 13, 2015, this Court sentenced Petitioner-Defendant to a total term of imprisonment of 180 months, consisting of 156 months on Count 1, and 120 months on Count 21, to be served concurrently; as well as 24 months on Count 17, to be served consecutive to the sentences imposed on Counts 1 and 21. (Sentencing Judgment, Doc. No. 44.) Petitioner-Defendant appealed his sentence, which the Eighth Circuit dismissed based upon his valid waiver of appeal. (Doc. No. 63.)

         In his petition before the Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, Petitioner-Defendant asserts three grounds for relief. First, he asserts that his trial counsel was ineffective for failure to object to the loss enhancement recommended in the PSR. (Memo. in Support, Doc. No. 77 at 2-3.) Secondly, Petitioner-Defendant asserts that his trial counsel was ineffective for failure to object to the enhancement for more than fifty victims. (Id. at 3.) Thirdly, he contends his trial counsel was ineffective for failing to ...


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