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Richmond v. United States

January 4, 2007

SCOTT ALAN RICHMOND, PETITIONER,
v.
UNITED STATES OF AMERICA. RESPONDENT.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Scott Alan Richmond movespursuant to 28 U.S.C. § 2255 to vacate his criminal conviction and sentence. The government opposes the motion. For the reasons that follow, the motion is denied and the petition is dismissed.

II. BACKGROUND

From February 1996 until March 2002, Richmond was employed as a computer technician by Street & Competition ("S & C"), a motorcycle parts and accessory retailer. The principals of S & C, Miles Frederick ("Frederick") and Sera Porter ("Porter"), gave Richmond access to several credit cards to purchase inventory and other business-related items. In March 2002, Porter brought to Frederick's attention several unusual charges on one of the company credit cards, the First USA MasterCard ("First USA"). Frederick then reviewed past statements for that card and found charges that had nothing to do with the business. They concluded that Richmond had been using the card for his own personal expenses and reported their conclusion to the police. On March 28, 2002, an investigator with the New York State police interviewed Richmond. Richmond admitted to using the First USA card for personal expenses beginning in the summer of 2000 as a result of financial problems he and his wife were experiencing.

In October 2003, Richmond was charged in a one count federal indictment with credit card fraud in violation of 18 U.S.C. §§ 1029(a)(5) and (c)(1)(A)(ii). See indictment, dkt. # 1 in United States v. Richmond, 1:03-CR-407 (N.D.N.Y.). In this regard, the indictment charged that Richmond knowingly, willfully and with intent to defraud did, without authorization, use S & C's credit cards and credit card numbers to received payments and other things of value for himself, his family, and his wife's former business, Faustina, in Bennington, Vermont, totaling well in excess of $1,000 during any one year period and resulting in total unauthorized charges to S & C of approximately $451,981.89 and, thereby, did affect interstate commerce.

In violation of Title 18, United States Code, Sections 1029(a)(5) and (c)(1)(A)(ii). Indictment, p. 2.

On December 1, 2003, without a plea agreement and on the advice of counsel, Richmond entered a plea of guilty to the sole count in the indictment. See Dec. 1, 2003 Trans. of Proceedings, Govt. Ex. 5 ("Plea Transcript"). Familiarity with Petitioner's plea allocution, as set forth in the Plea Transcript, is presumed. Suffice it to say that Richmond stated, under oath and after being advised of his rights and the consequences of a plea of guilty, that he was pleading guilty freely and voluntarily and because he was in fact guilty of the crime charged. See generally id.. The Court accepted the plea, finding that:

Mr. Richmond pled guilty freely and voluntarily; that he is and was competent to enter such a plea; that he understands the charges against him and the consequences of pleading guilty; that there is and was basis in fact for the Court accepting and entering the plea.

Id. at pp. 18-19.

On April 13, 2005, the Court made a finding that the amount of the loss for purposes of sentencing was $451,981.89. See April 13, 2005 Transcript of Sentencing Hearing, Govt. Ex. 6, p. 9. This finding was based upon Richmond's admission at the time of his plea that he was guilty of the crime charged in the indictment and as proffered by the government during the plea allocution. See id. Nevertheless, because Richmond contended that the amount of the loss was substantially less than $451,981.89, the Court thereafter determined to engage in further fact finding on the amount of the loss.

On April 29, 2005, the Court conducted a telephone conference with counsel and the United States Probation officer preparing the Presentence Investigative Report ("PSR") regarding the amount of the loss. See dkt. entry # 22 in United States v. Richmond, 1:03-CR-407 (N.D.N.Y.). After addressing the issue, the Court advised the parties to report back in one week whether they had reached a stipulation on the amount of loss. Id. The Court further advised that, without a stipulation, the Court would conduct additional fact finding on the issue.

A stipulation was not reached. On May 24, 2005, the Government submitted an affidavit from Porter attesting to the amount of loss. See dkt. # 23 in United States v. Richmond, 1:03-CR-407 (N.D.N.Y.). On May 27, 2005, the Court adjourned sentencing until August 9, 2005. See dkt. # 24 in United States v. Richmond, 1:03-CR-407 (N.D.N.Y.).

On June 1, 2005, the United States Probation Office issued the PSR which concluded, inter alia, that the amount of the loss attributable to Richmond's crime was $378,692.63. See PSR ¶ 7. On June 14, the Government submitted a sentencing memorandum. See dkt. # 25 in United States v. Richmond, 1:03-CR-407 (N.D.N.Y.). On July 27, 2005, Attorney Lori Levinson, Esq. (Richmond's current counsel) requested an adjournment of the sentencing date so that she could be substituted in as counsel for Richmond. See dkt. # 28 in United States v. Richmond, 1:03-CR-407 (N.D.N.Y.). The Court denied the adjournment request. Id.

In the instant Section 2255 action, Richmond's then-attorney, Thomas O'Hern, Esq., submits an affidavit in which he attests that throughout his period of representation, Richmond repeatedly failed to provide him with evidence that refuted the government's loss calculation. See O'Hern Aff. ¶¶ 7-9, 16-30. Just before the August 8, 2005 sentencing, Richmond finally provided an unsworn statement purporting to show that he was not responsible for most of the loss. See dkt. #s 30 & 31. O'Hern "felt that his statement was not supported by either his initial statement to the state police or the documents provided to the defense by the government." Id. ¶ 31. O'Hern was also concerned that Richmond's unsupported denial of responsibility for most of the loss potentially jeopardized Richmond's eligibility for a 3 level sentencing reduction for acceptance of responsibility. Id. ¶ 28. O'Hern concluded:

Given all of the evidence to the contrary, I could not reasonably sign on to Mr. Richmond's position, and therefore I simply filed his statement, as the sentencing memorandum of the defense, without ...


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