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United States v. Camp

February 23, 2009

UNITED STATES OF AMERICA, RESPONDENT,
v.
CARMEN A. CAMP, PETITIONER.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM DECISION AND ORDER

I. Introduction

In July 2007, petitioner pled guilty to embezzlement by a bank employee in violation of 18 U.S.C. § 656. In November 2007, petitioner was sentenced by this Court to 60 months imprisonment to be followed by a five year term of supervised release. Petitioner has filed the present motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct her sentence on the basis of the alleged ineffective assistance of her retained counsel.

II. Factual and Procedural Background

The facts of this case, as briefly stated in the Plea Agreement executed by the parties, are as follows: Petitioner was employed by Community Bank, NA for approximately 25 years. Most recently, petitioner was the bank's trust officer. In this capacity, petitioner controlled approximately 150 accounts. Beginning in 1997 and continuing up to March 19, 2007, petitioner systematically embezzled funds from the accounts of at least ten bank customers. Petitioner stole this money through several different means including writing checks on the victims' checking accounts and transferring money directly from the victims' accounts into her own account. The total amount embezzled by petitioner was approximately $555,658.

Pursuant to a written Plea Agreement, petitioner entered a plea of guilty to the one-count Indictment charging her with embezzlement by a bank employee in violation of 18 U.S.C. § 656. As part of the Plea Agreement, petitioner agreed as follows:

2. Waiver of Appeal and Collateral Attack

The defendant acknowledges that, after consultation with defense counsel, she fully understands the extent of her rights to appeal, and/or to collaterally attack the conviction and sentence in this case. The defendant waives any and all rights, including those conferred by 18 U.S.C. § 3742 and/or 28 U.S.C. § 2255, to appeal or collaterally attack her conviction and any sentence of imprisonment of 63 months or less, including any related issues with respect to the establishment of the Sentencing Guidelines range. The defendant acknowledges that the number of months specified above is not a promise of any particular sentence and is not binding on the Court. The defendant agrees that, should the sentence imposed exceed 63 months, this would not permit her to withdraw his guilty plea or to appeal or collaterally attack her conviction, but would merely allow the defendant to appeal or collaterally attack the sentence imposed by the Court, to the extent permitted by 18 U.S.C. § 3742 and/or 28 U.S.C. § 2255.

At the proceeding, during which petitioner formally entered a change of plea, petitioner admitted facts set forth in the Plea Agreement which the government asserted established her guilt. Petitioner also represented to the Court that she was aware that she was waiving her right to appeal:

THE COURT: Furthermore, I see in the last paragraph there is a waiver, a 63 month waiver of appeal. What that means to me is this: If I sentence you to 63 months or less, there will be no appeal of any issue involving this case. If I sentence you to more than 63 months, then you could appeal the issue of whether I was correct in what I imposed as a sentence. Is that your understanding too?

The DEFENDANT: Yes, it is, Your Honor.

Plea Transcript, pp. 21 - 22.

On November 20, 2007, this Court sentenced petitioner principally to a term of 60 months and 5 years supervised release. The issue of petitioner's waiver of her right of appeal was also addressed briefly at sentencing:

THE COURT: Now, both parties have a right to appeal this sentence in certain limited circumstances, except as restricted by any waiver stipulated to in the plea agreement. If you recall, Mrs. Camp, on the date that you entered your plea of guilty, you waived, 63-month waiver of appeal and that ...


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