The opinion of the court was delivered by: Chin, D.J.
Defendant Kevin M. Tamez was the Associate Special Agent in Charge ("A/SAC") of the New York Division of the Drug Enforcement Administration ("DEA"). As A/SAC, Tamez was the fourth highest ranking official in DEA's New York Division. On May 10, 2004, he pled guilty in this case to one count of embezzling funds from DEA, one count of accessing government computer systems for personal gain, and twenty-two counts of theft of honest services from DEA by wire and mail fraud. On May 5, 2005, after extensive delays requested by Tamez and his counsel, the Court sentenced Tamez principally to thirty months' imprisonment. Now proceeding pro se, Tamez moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the grounds that: (1) he received ineffective assistance of counsel, (2) the Court erred in increasing his offense two levels for obstruction of justice pursuant to § 3C1.1 of the Sentencing Guidelines, and (3) the Court improperly sentenced him to the top of the Guidelines range based on purportedly false and misleading facts provided by the Government. For the reasons that follow, the motion is denied.*fn1
Tamez served as A/SAC in the New York Division of DEA from January 13, 2002, when he was promoted from Assistant Special Agent in Charge, until February 24, 2003, when he was suspended. (PSR ¶¶ 7, 71; Niczyporowicz Decl. ¶ 8).*fn2 As A/SAC, he was the fourth highest DEA official in the New York Division and was in charge of operational support, including the administrative, human resources, intelligence, and technical operations units. (PSR ¶ 7). He was responsible for the financial management of the New York Division. (Id.).
Tamez engaged in two separate fraudulent schemes. First, from December 1999 through February 2003, Tamez embezzled approximately $138,488.24 from DEA. (Gov't Br. at 2; PSR ¶¶ 1, 8-11). He did so by submitting, or directing other DEA Special Agents to submit, vouchers to DEA for cash and money orders purportedly for DEA-related expenses, and then taking the monies for his personal use. (PSR ¶¶ 8-11). As he admitted at his plea allocution:
THE DEFENDANT: . . . I falsified or caused to be falsified some documents which I [used to] obtain funds for, U.S. government funds, and used them for personal use.
THE COURT: You caused -- you either submitted or caused to be submitted documents you knew to be false, correct?
THE DEFENDANT: That is correct, your Honor.
THE COURT: And you did that to obtain funds that belonged to the [DEA]?
THE DEFENDANT: That is correct, your Honor.
THE COURT: And you did that to take those monies for your own use?
THE DEFENDANT: That is correct, your Honor.
THE COURT: And you did that knowingly and with intent to defraud the DEA?
THE DEFENDANT: Yes, I did, your Honor. (Plea Tr. 19-20).
Second, from January 2000 through July 2002, Tamez illegally used DEA personnel and resources to obtain information that he used for the benefit of a private investigation company that he had started, the MPM Group, Inc. ("MPM"). (Gov't Br. at 2; PSR ¶¶ 2, 12-69). MPM had been retained by private attorneys and other clients to conduct certain investigations. Tamez used his access to government computer systems and databases to run (or have run) criminal background and license plate checks; the information would then be turned over by MPM -- for a fee -- to its private clients. (Plea Tr. 20-21; PSR ¶¶ 13-22). In addition, Tamez repeatedly called other DEA agents or offices to serve subpoenas or to conduct surveillances or "trash runs," under the false pretense that they were for official DEA business. (Plea Tr. 21-25; PSR ¶¶ 24-69). Hence, DEA agents unwittingly provided services to Tamez, believing he was requesting their assistance for DEA-related business when he was using them for private and personal gain.
On February 24, 2003, Tamez met with DEA officials, who questioned him about certain suspicious transactions. When the officials asked Tamez to explain two expenditures relating to an undercover website and an undercover apartment in the Bronx, he claimed that he could not remember the address for either the website or the apartment, nor could he remember who had paid for the apartment's rental. (Niczyporowicz Decl. Ex. A at 2). Tamez said that the purpose of the website was to "facilitate DEA operations," but could not recall whether anyone at the Division had ever used it. (Id.). Tamez also said that he had knowingly assigned expenditures to the wrong case number so that the New York City Police Department ("NYPD") could use the funds to establish undercover apartments and monitoring posts. (Id.). He claimed that he was trying to help out the NYPD and "did not want to get others involved." (Id.). Investigators later traced the serial numbers on the postal money orders relating to these purported expenditures and found that the money orders were made payable to Tamez, his personal credit card account, and his son. (Id. Exs. B & C).
Following the meeting, Tamez was placed on administrative leave. (Id. Ex. A at 2). He was escorted to his office so that he could collect his personal belongings and was left alone briefly. (Id. at 6). During those few minutes, he deleted certain files from his DEA-issued laptop computer; a forensic exam of Tamez's laptop later showed that certain America Online ("AOL") files, including some relating to the AOL screen name "thempmgroup," were deleted from the laptop between 6:31 and 6:33 p.m. that day. (Id. Ex. E). Some of the deleted data was unrecoverable and some was recovered but was unreadable; the forensic examiner could not conclude that all of the data was recovered. (Id. at 7, Exs. D & F).
Tamez was originally charged in this case in 2003 in a sixty-one count indictment. After extended plea negotiations with the Government, he pled guilty on May 10, 2004, pursuant to a plea agreement, to a superseding information charging him with one count of embezzlement, one count of accessing government computer systems for private financial gain, twenty-one counts of theft of honest services by wire, and one count of theft of honest services by mail. (Plea Tr. 10-13, 19-30).
Tamez agreed to pay DEA restitution of $154,959.24 and to forfeit $151,439.24 to the United States. (Plea Agmt. at 3). The agreement contained no stipulated Guidelines sentencing range. It contained only a limited waiver of the right to appeal: Tamez waived his right to appeal any restitution order equal to or less than $154,959.24 as well as his right to appeal his conviction based on the grounds that the Government failed to produce discovery, Jencks Act material, or exculpatory material. (Id. at 3, 4-5).
In the PSR, the Probation Department determined that the appropriate sentencing range under the Guidelines was 24 to 30 months and recommended a sentence of 24 months. (PSR at 31). The total offense level of 17 was based on a base offense level of 6, with a 3-level reduction because of Tamez's acceptance of responsibility and enhancements for the following: (1) loss exceeding $120,000 but less than $200,000 (10 levels); (2) Tamez's use of his position at DEA to facilitate the offense (2 levels); and (3) obstruction of justice (2 levels). (Id. at 20, 21). The enhancement for obstruction of justice was based on the Government's assertion that Tamez made false statements to DEA management during the meeting on February 24, 2003, and that following the meeting, after being placed on administrative leave, Tamez deleted AOL files from his laptop, including files using the AOL screen name "thempmgroup." (Id. at 16).
By letter dated September 15, 2004, Tamez, through counsel, objected to the PSR. Among other things, Tamez claimed that he did not make false statements during the February 24 meeting, and that his deletion of AOL files from his laptop was "localized" and thus did not prevent the Government from accessing those files. Furthermore, he claimed that his deleting the AOL files was necessary to return the laptop in the condition in which it was issued, in accordance with DEA policy. Tamez reiterated these objections in his own letter dated April 27, 2005, which was fifteen single-space pages and to which were attached some twenty-three exhibits.
I sentenced Tamez on May 5, 2005. At the outset, I noted that I had received and reviewed "quite a lot of materials," and I inquired whether the parties wanted to present "any other evidence." (Sen. Tr. 2-3). Both sides declined. (Id. at 4).
The parties agreed on a base offense level of 6, a 10-level increase for loss amount, and a 2-level increase for Tamez's use of his position at DEA. (Id. at 3-4). The parties disagreed on four issues: (1) a 2-level increase in offense level for obstruction of justice; (2) a 3-level reduction for acceptance of responsibility; (3) Tamez's motion for a downward departure for reduced mental capacity; and ...