The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge
Pro se petitioner Gordon Davis pled guilty to a three count
indictment, and was sentenced to a term of imprisonment of 41
months. Davis now moves pursuant to 28 U.S.C. § 2255, to vacate,
set aside or correct his sentence. For the reasons set forth
below, the motion is denied.
On October 28, 1999, a federal grand jury sitting in the
Southern District of New York returned a three-count indictment
against Davis and several others. Davis was charged in all three
counts. Count One charged conspiracy to commit bank fraud and to
transport stolen checks in interstate and foreign commerce in
violation of 18 U.S.C. § 371. Count Two charged bank fraud in
violation of 18 U.S.C. § 1344, and Count Three charged transportation of stolen checks in interstate commerce in
violation of 18 U.S.C. § 2314.
The prosecution arose from a scheme devised by Davis and his
co-conspirator, Rasheed Sanni, to alter and negotiate checks that
were stolen from the mail room of Pfizer, Inc. in New York, New
York. The checks were removed from the mail room by another
coconspirator, Patrena Harris, a Pfizer mail room employee, who
then gave them to Davis. See Pre-Sentence Investigation Report
("PSR"), at 6. In all, twelve checks with a total face value
exceeding $300,000 were misappropriated. After the checks were
stolen, at least one check was altered to increase its amount by
$500,000. See id. at 8.
Femi Emmanuel Jacob and Tunde attempted to negotiate the stolen
checks in Moscow, Russia on behalf of Davis and Sanni. In Moscow,
Jacob and Tunde approached a cooperating witness ("CW"), and,
after a series of meetings, provided the CW with one of the
stolen checks in the amount of $150,000. The CW in turn gave
Jacob and Tunde the number of a contact in New York City who was
to provide the proceeds of the cashed check to the conspirators.
The contact was an undercover police officer. See id. at 4-5.
Davis and Sanni met with the undercover officer at the Marriott
Marquis Hotel in New York, New York, in order to discuss the
negotiation of the $150,000 check. See id. at 5.
Approximately one week thereafter, Davis and Sanni again met with the undercover officer. At the second meeting, Davis and Sanni
informed the officer that a check in the approximate amount of
$520,000 had been sent to Russia and that they were in possession
of an additional check in the approximate amount of $720,000.
Davis further offered to provide the undercover officer with a
check in the amount of $500,000. After agreeing to this
transaction, Davis and Sanni discussed possible future
transactions involving millions of dollars. At the conclusion of
the meeting, Davis and Sanni were arrested. See id.
On May 15, 2000, the day on which trial was to commence, Davis
indicated a desire to plead guilty. Shortly thereafter, the
Government provided Davis with a letter pursuant to United
States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991), setting forth
the Government's position with respect to the application of the
United States Sentencing Guidelines to Davis's offenses. On the
same day, Davis pled guilty to all three counts. See Transcript
of Plea held on May 15, 2000, at 22.
The Government took the position that Davis's adjusted offense
level was 24, resulting from a base offense level of six pursuant
to § 2F1.1(a), because the offense conduct involved fraud; a
12-level upward adjustment pursuant to § 2F1.1(b)(1)(m), because
the intended loss was more than $1.5 million; an additional
2-level upward adjustment pursuant to § 2F1.1(b)(2), because the
scheme involved more than minimal planning and more than one victim; and
a 4-level enhancement pursuant to § 3B1.1(a), because Davis was
an organizer of the scheme. The PSR calculated a total offense
level of 22 and a criminal history category of I.
Davis's sentencing hearing was held before this Court on
January 17, 2001. At the hearing, Davis acknowledged that he had
reviewed the PSR and spoken with his attorney about it. See
Transcript of Sentencing held on January 17, 2001, at 3. In
addition, Davis represented that he had no questions about the
report, and he neither objected to the loss amount set forth in
the PSR nor requested a Fatico hearing. See id. Rather,
counsel for Davis, Wayne Holder, Esq., and Davis himself, only
argued that Davis should be treated as a minor or minimal
participant in the scheme and that his family circumstances
should mitigate his sentence. See id. at 9, 14.
Following Davis's statement, the Court recognized that it had
the authority to depart on the basis of family circumstances and
to reduce Davis's offense level based upon his purported minor or
minimal participation in the scheme. See id. at 14. The Court
determined, however, that neither a downward departure nor a
reduction for Davis's role in the scheme was warranted. See
id. The Court then ordered Davis to serve a sentence of 41
months on each count to run concurrently, followed by a ...