The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER RE DEFENDANT‟S MOTION TO RECONSIDER WRIT OF ERROR CORAM NOBIS (DOCS. 284, 292)
Petitioner Akop Krboyan ("Petitioner") moves for reconsideration of the denial of his petition for writ of error coram nobis. Docs. 284, 292. The United States filed an opposition (Doc. 289), to which Petitioner replied (Doc. 290). Petitioner filed a supplemental memorandum (Doc. 292), which the United States opposed (Doc. 293).
Petitioner was charged by Superceding Indictment with arson in violation of 18 U.S.C. § 844(h)(1); arson to commit another felony in violation of 18 U.S.C. § 845(i); and seventeen counts of mail fraud and aiding and abetting in violation of 18 U.S.C. §§ 1341 and 1342. Petitioner was convicted by jury trial of all counts on October 15, 2004. On December 7, 2005, Petitioner‟s motion for new trial was granted because an alibi witness, Wayne Metzger, was located after the trial, and Petitioner was unable to understand the interpreter provided at trial, who spoke a different dialect of Armenian. Doc. 186. Petitioner‟s new trial was scheduled to commence on June 13, 2006. On June 12, 2006, pursuant to a written plea agreement, Petitioner pleaded guilty to Counts 3-19, charging Petitioner with mail fraud. Docs. 217, 235.
Pursuant to the plea agreement, Petitioner agreed in pertinent part:
3. Agreements by the Defendant. ...
(b) The defendant agrees to enter a plea of guilty to Counts Three through Nineteen of the Second Superseding Indictment, charging him with Mail Fraud and Aiding and Abetting, in violation of Title 18, United States Code, Sections 1341 and 2. The defendant agrees that he is guilty of these charges and that the facts set forth in the factual basis of this agreement are true and accurate. ...
(d) The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal any sentence imposed. Acknowledging this, the defendant knowingly and voluntarily agrees to waive all Constitutional and statutory rights to appeal his conviction and sentence, including, but not limited to an express waiver of appeal of this plea (including any venue and statute of limitations issues) and to attack collaterally his mental competence, and his plea, or his sentence, including but not limited to, filing a motion under 28 U.S.C. § 2255, 28 U.S.C. § 2241, or 18 U.S.C. § 3742, or otherwise. .... ...
(k) The defendant agrees to make restitution in the amount of $12,113 to Western Specialty Insurance under terms and conditions set by the Probation Office.
(l) The defendant agrees that the 2000 U.S. Sentencing Guidelines apply to his case and that the base offense level is 6 (2F1.1(a)) and a 3-level increase for a loss of more than $10,000 but less than $20,000 applies (2F1.1(b)(1)(D)). The defendant further agrees that a 2-level increase in his offense level for More Than Minimal Planning applies, pursuant to 2F.1.1(b)(2). Finally, the defendant agrees that a 2-level increase to reflect the actual seriousness of the offense based on dismissed charges applies, pursuant to 5K2.21.
Doc. 282-2, 4-8. The factual basis for the guilty plea set forth in the plea agreement is:
The defendant will plead guilty because he is in fact guilty of the crimes set forth in the Second Superseding Indictment. The defendant also agrees that the following are the facts of the case, although he acknowledges that, as to other facts, the parties may disagree:
Beginning at a time unknown to the grand jury, but no later that [sic] on or about August 31, 2000, on or about September 28, 2001, in the State and Eastern District of California, and elsewhere, defendant AKOP KRBOYAN devised and intended to devise a scheme and artifice to defraud and obtain money from Western Specialty Insurance, 125 Windsor Drive, #116, Oak Brook, Illinois, by means of false and fraudulent pretenses, representations, or promises regarding the amount of damage, lost revenue and cost of repairs and replacement due to the fire at the Golden Rooster Restaurant, located at 1414 Clovis Avenue, Clovis, California, which fire occurred on or about August 31, 2000.
The purpose of the scheme to defraud was to obtain payment of insurance proceeds on policies written by Western Specialty Insurance for the above-mentioned property.
In furtherance of the scheme to defraud, defendant AKOP KRBOYAN submitted receipts and other documents to his insurance adjusters, Cunningham Lindsey U.S., Inc., 1320 E. Shaw Avenue, Suite 123, Fresno, California, which he claimed to be the amount of damage caused by the fire. Cunningham Lindsey U.S., Inc., would also meet with the defendant for the purpose of receiving additional information regarding his insurance claim and to negotiate the claim with the defendant. After these meetings and negotiations with the defendant, Cunningham Lindsey U.S., Inc., would then forward its recommendation for payment to Western Specialty Insurance, Oak Brook, Illinois. Defendant AKOP KRBOYAN knew that his receipts and other documents, and the information contained therein, would be forwarded to Western Specialty Insurance, Oak Brook, Illinois. After Western Specialty Insurance conducted a final review of defendant‟s claim, it would thereafter send payment, by check, to Cunningham Lindsey U.S., Inc., and the defendant would pick up the check at Cunningham LindseyU.S., Inc.
As a result of the scheme and artifice to defraud as more fully set forth above, the defendant received $12,113 in claims proceeds. Doc. 282-2, 9-10.
Petitioner was sentenced on September 7, 2006 to imprisonment for a term of 11 months and 16 days and a 36-month term of supervised release. Docs. 239, 240, 241. At Petitioner‟s sentencing, the following statements were made:
MR. BACON: But I would implore the Court 12 months is an immigration threshold that could affect his immigration .... ...
MR. BACON: If the Court gives 13 months or over 12 months, then I think we have some serious immigration issues. We may have immigration issues anyway. But I would implore the Court then ten months, 11 days in the Fresno County jail - okay - is a lot worse than had the Court given 16 months at a federal institution. Doc. 263, 14-16.
MR. NUTTALL: How - to give him any more, or to exceed 12 months, to put him in the jeopardy of INS treatment just doesn‟t outweigh the good that could come from legitimate just ten month sentence. And Mr. Bacon said and I hadn‟t even thought of it, ten months and 11 days in the Fresno County Jail is a punishment galore. He did it. So we are asking that the Court opt in favor of the humanity here. MR. CULLERS: Well, Your Honor, I‟ve got to just respond to that. There‟s no certainty of deportation, number one. Id. at 24.
THE COURT: All right. So there were 16 counts of conviction. And the loss is, I think the parties don‟t dispute the $12,113.Id. at 26.
[THE COURT:] I think the real issue is once we get into a range over 12 months, we're facing the more likelihood of a deportation. And if that's the government's objective, then I'll accept that on a statement if that's what you want.
And if that's what the plea agreement was premised on, then of course that's something that I could analyze. My sense is that a mid range sentence in this case, to me, is sufficient. I think that the ten months is on the light side, but if this were any case I'd impose a 13 month sentence in this case. That's the mid range of the guidelines.
I think it's a serious crime. I think if you 16 times act to try to defraud your insurer, that that is an offense that needs to be punished. And given the amount that the intended loss was in the $70,000 range and that's what you're supposed to use under the guidelines, the intended loss, essentially we'd be a couple of levels higher if that was done. Nobody's talked about that, quite frankly, but I think that's where it is. And so I think that the 13 month sentence is the sentence I'd normally impose.
But now the real question is how badly the people want Mr. Krboyan deported. Because if the sentence goes over 12 months, then that brings him -- it makes it much more likely that he's on the Immigration & Naturalization Service's radar.
MR. CULLERS: Well, Your Honor, he's going to be on the radar anyway. And I can't speak for the immigration and customs enforcement.
THE COURT: Oh, I know that.
MR. CULLERS: So I can't speak to how a 12 month or 13 month or 16 month sentence, whether he's going to be looked at more carefully or not. He's going to be on their radar anyway because he's pled guilty to a felony involving a false statement where the amount of loss is over $10,000. That automatically puts him on their radar.
THE COURT: All right. Well, what I'm going to do is this. We're really down to splitting hairs. My sense of this is I'm going to give him an 11 month and 20 day sentence, or I guess it would have to be 19 days because that will give him one day under a year. And from there we will determine that that will be just punishment for the offense. It will provide adequate deterrence, it will achieve -- there is no proportionality because there are no co-defendants. But it will achieve a just result. It will serve the further purpose of minimizing the adverse immigration consequences to it.
Id. at 30-31. On December 29, 2008, Petitioner moved to terminate supervised release, which motion was granted by Order ...