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United States v. Hogan

August 3, 2007


The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge


Before the Court is Petitioner Susan Marie Hogan's ("Petitioner") Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2255. "A prisoner in custody under sentence of a court . . . claiming . . . that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or that the sentence was in excess of the maximum authorized by law, . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255 (2000). For the reasons set forth below, the Court DENIES the Petition.


From approximately June 1997 to at least September 1998, Petitioner was a member of a conspiracy to commit securities fraud. (Plea Agreement at 4.) Petitioner and her co-conspirators operated a company known as Commercial Express LLC ("Commercial") as a Ponzi scheme. (Id. at 6.) The scheme involved selling Media Units and Equity Participations to investors. (Id.) Defendant and her co-conspirators represented that the money received from those sales would be used to buy television time to advertise products that would generate profits for investors. (Id.) In fact, Commercial had only minimal product sales and no profits. (Id.) The company used the money it received from later investors to pay earlier investors and its own overhead and expenses. (Id.)

Petitioner participated in marketing the Media Units and Equity Participations, which were not registered as required by securities laws and which were fraudulently described to investors as legitimate investments. (Id. at 4-5.) Petitioner operated Nexgen Financial ("Nexgen"), which was located in Del Ray Beach, Florida. (Id. at 5.) Nexgen marketed Commercial via mailings and telemarketing. (Id. at 6.) Petitioner and Nexgen's salespeople promised investors large returns on their investments from profits earned on product sales. (Id. at 6.) As the operator, Petitioner shared in the commissions earned by Nexgen's salespeople. (Id.)

On May 1, 2003, Petitioner was charged in a seven-count information with various offenses relating to securities fraud. [Doc. No. 1.] Pursuant to a written plea agreement, Petitioner pled guilty to the seven counts, which included conspiracy to commit securities fraud, securities fraud, mail fraud, and wire fraud. [Doc. No. 5.] Under the terms of the plea agreement, Petitioner agreed to waive the right to appeal or to collaterally attack the plea, conviction, or sentence unless the Court imposed a sentence in excess of the high end of the guideline range based on an adjusted offense level of 23. (See Plea Agreement at 15, 21.) The plea agreement provided that the parties would jointly recommend a base offense level of 6, a 14-level upward adjustment due to the amount of loss caused by Petitioner's offense, a two-level upward adjustment due to the fact that the offense involved more than minimal planning, a two-level upward adjustment due to the vulnerable nature of her victims, a two-level upward adjustment due to her supervisory role in the offense, and a three-level downward adjustment due to her acceptance of responsibility. (Id. at 15.) The Government agreed to recommend a sentence at the low end of the guideline range found by the Court, unless the Court adopted an offense level or downward adjustment or departure below the Government's recommendation in the plea agreement. (Id. at 17.)

The Court sentenced Petitioner on March 24, 2006. [Doc. No. 27.] The Court followed the recommendations of the parties and found a base offense level of 6, applied the parties' recommended adjustments, and applied a three-level downward adjustment based upon the Government's motion pursuant to U.S.S.G. § 5K1.1. (Rep.'s Tr. of Sentencing at 12.) This resulted in an adjusted offense level of 20 and a guideline sentencing range of 41 to 51 months in custody. (Id.) Petitioner was sentenced to a term of imprisonment at the low end of the range, 41 months. (Id.) On April 9, 2007, Petitioner filed the instant Petition. [Doc. No. 38.]


The bulk of Petitioner's Petition focuses on her ineffective assistance of counsel claims. (Pet. at 2.) Petitioner asserts that her counsel was ineffective for telling her that she "would only miss one Christmas away from home" and for failing to adequately explain the calculation of criminal history points to her. (Id.) Additionally, Petitioner asserts that her counsel improperly advised her that she would receive the same sentence as co-defendant Bill Whitely. (Id.) Petitioner also asserts that her counsel was ineffective for failing to object to: (1) the fourteen-point enhancement she received due to the amount of loss caused by her offense; (2) the two-point enhancement she received due to the vulnerable nature of her victims; and (3) the two-point enhancement she received due to her supervisory role in the offense. (Id. at 2-3.) In addition to her ineffective assistance of counsel claims, Petitioner asserts that "the U.S. Attorney violated HOGAN'S constitutional rights by the misuse of the Patriots [sic] Act in this case." (Id. at 3.) Finally, Petitioner asserts that the sentencing enhancements she received violated her Sixth Amendment right to trial by jury. (Id. at 3-4.)

In its Response, the Government argues that the Petition must be denied because: (1) Petitioner had ample opportunity to object to the sentencing enhancements at her disposition or sentencing hearing, and she failed to do so; (2) Petitioner waived her right to collaterally attack her sentence as part of her plea agreement; (3) Petitioner received effective assistance of counsel; and (4) judicial fact-finding in sentencing is constitutional.*fn1

(Gov't Resp. at 17-23.) The Court examines each of these arguments in turn.

I. Petitioner's Failure to Object to the Sentencing Enhancements

As a preliminary matter, the Court must address the Government's argument that Petitioner has waived the claims in her Petition because she failed to raise these issues at her disposition hearing or sentencing hearing. Specifically, the Government argues that Petitioner waived her claims challenging the Court's imposition of the sentencing enhancements because she failed to object to the inclusion of the enhancements during her disposition hearing or her sentencing hearing. (Id. at 17.)

A § 2255 petitioner cannot challenge non-constitutional sentencing errors if such errors were not challenged in an earlier proceeding. United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996) (citing United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1995); United States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990)). A petitioner waives the right to raise non-constitutional claims in collateral proceedings unless she makes a proper objection before the district court or in a direct appeal from the sentencing decision. Id. (citing Schlesinger, 49 F.3d at 483; Keller, 902 F.2d at 1393.) In contrast, courts typically permit constitutional questions to be raised collaterally even though they could have been raised on direct appeal. See Schlesinger, 49 F.3d at 485 (citing Vandergrift v. United States, 313 F.2d 93, 95 (9th Cir. 1963)).

Petitioner did not raise any of the claims presented in her Petition in an earlier proceeding. However, the Court still can entertain the claims if they present constitutional issues. See id. Ineffective assistance of counsel is a constitutional violation, so no forfeiture of Petitioner's ineffective assistance of counsel claims results from her failure to raise them at an earlier proceeding or on appeal. See McMullen, 98 F.3d at 1157-58.

Similarly, Petitioner's claim that she was denied her right to trial by jury raises constitutional issues, so the Court can entertain this claim. Finally, Petitioner's claim that her constitutional rights were violated by misuse of the Patriot Act presents a constitutional question and therefore is not barred by her failure to raise this claim at sentencing or on appeal. In sum, because the claims in Petitioner's Petition raise constitutional questions, the Court may entertain them even though Petitioner did not raise them at sentencing or on appeal.

II. Petitioner's Claim that Counsel Improperly Advised Her Regarding Sentencing

Petitioner challenges the validity of her waiver of her right to collateral attack by asserting that her counsel inadequately advised her regarding sentencing. (See Pet. at 1-2.) The Government argues that because Petitioner was sentenced within the guideline range recommended by the Government, the plea agreement signed by Petitioner prohibits her from collaterally attacking her sentence. (Gov't Resp. at 20.) The Government asserts that Petitioner's claim of ineffective assistance of counsel cannot evade a waiver of collateral attack absent an allegation that the waiver or plea was not voluntarily or knowingly entered. (Id. at 22.)

In general, a defendant who pleads guilty to a criminal charge may not later seek federal habeas corpus relief on the basis of pre-plea constitutional violations. Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir. 1985). She may, however, attack the voluntary and intelligent character of the plea by demonstrating that the advice she received from counsel did not constitute effective representation. Id. A defendant challenging a guilty plea for ineffective assistance of counsel must establish that her counsel's performance was deficient and that the deficient performance prejudiced her defense. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). In order to demonstrate prejudice in the plea context, the defendant must show that there is a reasonable probability that, but for counsel's errors, she would not have pled guilty but would have insisted on going to trial. Id. at 59; United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996).

Petitioner appears to challenge the voluntariness of her plea by arguing that her counsel improperly advised her as to the potential duration of her sentence. The Court therefore reviews the record to determine whether the plea agreement, including the waiver of the right to collateral attack, was ...

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