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Leech v. United States

United States District Court, E.D. Missouri, Southeastern Division

April 2, 2018

JACQUELINE L. LEECH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Jacqueline L. Leech, a person in federal custody. On June 16, 2016, Leech pled guilty to the offense of Using Unauthorized Access Device and, on September 13, 2016, this Court sentenced Leech to the Bureau of Prisons for a term of 72 months on Counts 1, 2 and 3 to be served concurrently, a sentence above the sentencing guideline range. Leech's § 2255 action, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.

         I. FACTS

         A. INDICTMENT

         On February 18, 2016, Petitioner Jacqueline L. Leech (Leech) was charged in Counts I, II and III with use of an unauthorized access device, in violation of 18 U.S.C. § 1029(a)(2) and § 1029(c)(1)(A)(i).

         B. PLEA AGREEMENT AND GUILTY PLEA

         On June 16, 2016, Leech appeared with her attorney and pled guilty to Counts I, II and III of the Indictment. Leech executed a Plea Agreement with her counsel and the Government. (Plea Ag., Doc. 41) Leech acknowledged “having voluntarily entered into both the plea agreement and guilty plea, ” and that “[she], is in fact, guilty.” (Plea Ag. p. 14) Under the Plea Agreement, Leech acknowledged that her base offense level would be 6, pursuant to the United States Sentencing Guidelines (U.S.S.G.), and that several Specific Offense Characteristics applied:

8 levels should be added pursuant to Section 2B1.1(b)(1)(E), because the loss caused by defendant and sustained by the victims is more than $95, 000 but not more than $150, 000; (b) 2 levels should be added pursuant to Section 2B1.1(b)(2)(A), because the offense involved 10 or more victims; and (c) 2 levels should be added pursuant to Section 2B1.1(b)(11)(C)(i), because the offense involved the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification.

(Plea Ag. p. 7, Doc. 41)1[1]

         The Plea Agreement noted that “[t]he defendant has been fully apprised by defense counsel of [her] rights concerning appeal and fully understands the right to appeal the sentence under Title 18 U.S.C. § 3742.” (Plea Ag. p. 9) The parties waived all rights to appeal non-jurisdictional, non-sentencing issues, including any issues related to pretrial motions, discovery and the guilty plea. (Plea Ag. p. 9, Plea Tr. 8)) Leech waived all rights to appeal all sentencing issues other than Criminal History, so long as the Court accepted the plea, the U.S.S.G. Total Offense Level agreed therein, and sentenced Leech within or below that range. (Plea Ag. p. 9, Plea Tr. 8) During the plea hearing, Leech acknowledged that, if Leech was sentenced to a guideline or below guideline sentence, the only thing she could appeal would be the determination about her “criminal history and nothing else.” (Plea Tr. 9)

         During her change of plea hearing, when asked if he was satisfied with the way Mr. Tilsen had handled her case, Leech replied “Yes.” (Plea Tr. 4) Leech acknowledged to the Court that Mr. Tilsen had investigated the case to her satisfaction and that Mr. Tilsen had done everything she had asked him to do. (Plea Tr. 4-5) When asked if she had any “gripes or complaints whatsoever, ” Leech responded “No, sir.” (Plea Tr. 5) In the Plea Agreement, Leech represented that she was satisfied with the representation she had received from Mr. Tilsen.

The defendant is fully satisfied with the representation received from defense counsel. The defendant has reviewed the government's evidence and discussed the government's case and all possible defenses and defense witnesses with defense counsel. Defense counsel has completely and satisfactorily explored all areas which the defendant has requested relative to the government's case and any defenses.

(Plea Ag. 13)

         Leech also indicated that she had read the Plea Agreement, had gone over it in detail with her attorney, that her attorney had explained the contents of the agreement in detail to her, and that she understood the agreement. (Plea Tr. 6-7) When asked if there was anything in the agreement that she did not understand, Leech replied “No, sir.” (Plea Tr. 7) Relative to the application of the sentencing guidelines to her case, Leech acknowledged during the plea hearing that Mr. Tilsen had explained the sentencing guidelines to her. (Plea Tr. 9)

         In the Plea Agreement, Leech also agreed “to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to Title 28, United States Code, Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel.” (Plea Ag. 9)

         C. THE PRESENTENCE REPORT

         The Presentence Report (PSR) provided that, as agreed in the Plea Agreement, Leech's Base Offense Level was 6, which was enhanced by 8 levels for loss exceeding $95, 000 but not more than $150, 000 ($111, 220.64), enhanced by 2 levels since the offense involved 10 or more victims, and 2 more levels because the offense involved the unauthorized transfer or use of any means of an identification unlawfully to produce or obtain any other means of identification. (PSR &¶ 29-32).

         A three level reduction for acceptance of responsibility brought her Total Offense Level to a 15. (PSR &&38-40) Leech's criminal history was extensive. Dating back to August, 1995, when she was 18, to October, 2009, Leech was convicted of 17 felony counts of forgery in 9 different cases. (PSR &&40, 45, 47, 49-51, 53, 56, 57, 65, 66). She also has felony fraud convictions. (PSR ¶¶ 54, 55) Her criminal history score based on her countable convictions was 31. Leech committed the indicted offense while under a criminal justice sentence for misdemeanor property damage, subjecting her to two additional points. (PSR ¶¶ 69, 72) Her total criminal history score was 33, which established a criminal history category of VI. (PSR ¶73). Based on a total offense level of 15 and a criminal history category of VI, Leech's guideline imprisonment range was 41 months to 51 months. (PSR ¶105)

         D. SENTENCING

         Prior to sentencing Leech's counsel filed a Sentencing Memorandum asking the Court to impose a sentence within the correctly calculated advisory guideline range of 41-51 months. (Doc. 46) In a separate Sentencing Memorandum, Leech's counsel referenced that Leech had met with law enforcement authorities and proffered on two separate occasions. (Doc. 47)

         At the sentencing hearing on September 13, 2017, the Court referenced the Presentence Report (PSR), and adopted as its findings of fact the factual statements in the PSR. There were no objections to the PSR's recommendations that Leech's total offense level was 15, her criminal history category was VI, and that her guidelines range was 41-51 months. The Court adopted as its finding the PSR's sentencing guidelines calculation. (S. Tr. 2-3)

         In making its recommendation, the Government referenced Leech's criminal history as “stunning in terms of the number of prior convictions, ” that her criminal history went from pages 8 to 24 of the PSR, and that there were 34 paragraphs of entries, with some paragraphs having multiple counts within a paragraph. (S. Tr. 3) There were 17 felony convictions just for forgery. (S. Tr. 4) The Government also referenced Leech's convictions for receiving stolen property, and her felony conviction for assault of a law enforcement officer. The Government referenced the guideline range of 41 to 51 months. Relative to cooperation, the Government acknowledged that “Ms. Leech has also sat down on multiple occasions and attempted to cooperate with the Government. Her cooperation did not amount to substantial assistance.” (S. Tr. 4)

         The Government asked the court for an upward variance to 72 months, taking into account her cooperation, and stated that “[h]ad she not attempted to cooperate I would have asked for more time based on her criminal history and it simply being inadequate as a variance to properly hold Ms. Leech accountable for this particular offense that has a loss over - approximately a little over $100, 000, . . .” (S. Tr. 5) According to the government, “she's indicated that if she's out of jail, she's going to be cheating people time and time and time again.” (S. Tr. 5)

         Leech's counsel referenced that Leech made an effort to cooperate, “to help the United States with respect to more than one other prosecution.” (S. Tr. 8) In the separate Sentencing Memorandum, Leech referenced that she had twice met with law enforcement authorities. While acknowledging that it did not appear that Leech's cooperation would result in a substantial assistance departure motion being filed by the government, Leech's counsel argued that the Court should consider Leech's efforts to provide cooperation in determining her sentence. (Doc. 47)

         Despite the arguments of Leech's counsel referencing her cooperation and asking for a guideline sentence, the Court disagreed with some of his assertions on her behalf.

I acknowledge the things that your lawyer said. I have to disagree with quite a few of them. The prosecutor is right about your criminal convictions. I read your criminal history very closely. I counted 18 instead of 17 prior unrelated felony convictions. Either way that's the most I‘ve seen except for one other case in my 21 years on the bench.
Frankly, had it not been for your proffer I would have given you the full 10 years. Even with that my intention was to cut it down to maybe 96 months or so, but the Government has made a recommendation of 72 months, which will require an upward variance. If there was ever a case for an upward variance, this is it. Although your lawyer claims that there's -- there would be a disparity, there's no disparity if you considered 18 prior felony convictions. You've been to prison. You've been to jail. Needless to say, your criminal record is catching up to you.
The other problem too is that it's clear to the Court that you're just incorrigible. By that I mean whenever you're released you continue to commit the same types of crimes that you've done ever since you turned 18. They're all -- well, with the exception of an assortment of misdemeanors all of them involve fraud of some sort whether it's bad checks or otherwise.

(S. Tr. 10-11) Leech was sentenced to the 72 months imprisonment for each count, to be served concurrently, but consecutively to any other sentences imposed against her in ...


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