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United States v. Gbor

United States District Court, D. Minnesota

August 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFFERY DULWONH GBOR, Defendant.

          Lola Velazquez-Aguilu, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.

          Jeffery Dulwonh Gbor, Reg. No. 18257-041, FCI - Victorville, pro se.

          MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S 28 U.S.C § 2255 MOTION

          JOHN R. TUNHEIM, CHIEF JUDGE.

         Petitioner Jeffery Dulwonh Gbor pled guilty to Count 1, Conspiracy to Commit Bank Fraud, and Count 39, Aggravated Identity Theft, and the Court sentenced Gbor to 136 months' imprisonment. Gbor now moves under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Because Gbor failed to support his claim for ineffective assistance of counsel, the Court will deny Gbor's motion.

         BACKGROUND

         In October 2014 Gbor was charged along with twenty-four codefendants with Conspiracy to Commit Bank Fraud, Brank Fraud, and Aggravated Identity Theft. (Presentence Investigation Report (“PSR”) ¶ 1, Mar. 17, 2016, Docket No. 883.) Gbor entered into a plea agreement whereby Gbor agreed to plead guilty to Count 1, Conspiracy to Commit Bank Fraud, and Count 39, Aggravated Identify Theft, in exchange for the government's dismissal of the remaining charges. (Change of Plea Hr'g Tr. (“Plea Hr'g Tr.”) at 29:8-17, Aug. 11, 2016, Docket No. 1126.)

         At the plea hearing, Gbor stated he was satisfied with his attorney's representation and that he understood the terms of the plea agreement. (Id. at 7:21-8:14.) Gbor responded “yes” when asked “[d]o you agree that . . . as a result of the transactions that you conducted, facilitated, as well as those transactions that were reasonably foreseeable to you and in furtherance of the jointly undertaken scheme, that you caused or intended to cause losses to federally insured financial institutions of $2, 669, 131.55?” (Id. at 17:16-23.) Gbor also admitted that he reviewed the plea agreement with his attorney. (Id. at 8:21-25.)

         At Gbor's sentencing hearing, the Court calculated a total offense level of 27, including “a 16-level increase because of the amount of the loss.” (Sentencing Hr'g Tr. at 3:13-21, Aug. 11, 2016, Docket No. 1127.) The Court calculated a criminal history category of VI, resulting in the following advisory Guidelines ranges: 130 to 162 months' imprisonment for Count 1 and mandatory 24 months' imprisonment for Count 39 to run consecutive to the sentence imposed for Count 1. (Id. at 3:19-4:6.) The Court sentenced Gbor to a total of 136 months' imprisonment, including 112 months for Count 1 and the consecutive 24 months for Count 39. (Id. at 21:15-24.)

         Gbor appealed his sentence to the Eighth Circuit challenging the loss amount stipulated in the plea agreement and adopted by the Court. United States v. Gbor, 676 F. App'x 623, 623 (8th Cir. 2017) (per curiam). The Eighth Circuit affirmed, observing that “Gbor did not object to the presentence report's calculation of actual losses suffered by eighteen financial institutions, and the district court was entitled to accept that calculation.” Id.

         On March 6, 2017, Gbor filed a motion to vacate, set aside, or correct his sentence pursuant to section 2255. The government opposes the motion.

         DISCUSSION

         I. STANDARD OF REVIEW

         Section 2255 allows a federal prisoner a limited opportunity to seek post-conviction relief 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.” 28 U.S.C. § 2255(a). “Relief under [section] 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 miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

         II. INEFFECTIVE ...


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