The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On October 27, 2009, Petitioner Rosa Abreu filed a motion pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct her sentence of 70 months imprisonment imposed by this Court on October 24, 2008 and entered on October 31, 2008, on the grounds of ineffective assistance of counsel at sentencing. On January 28, 2010, Petitioner filed a motion pro se to amend her § 2255 petition to add two more ineffective assistance grounds. The Government filed a memorandum of law in opposition on March 12, 2008 and Petitioner, by Cheryl J. Sturm, Esq., filed a reply memorandum on March 27, 2010. On May 21, 2010 Petitioner filed a declaration executed May 18, 2010. That declaration is rejected as untimely since it was filed more than 50 days after Petitioner's reply and had not been authorized by the Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying indictment charged Natarajan R. Venkataram, Director of Management Information Systems ("MIS") for New York City's Office of the Chief Medical Examiner ("OCME") and the Petitioner, OCME's Director of Records, with conspiracy to embezzle and to money launder over $13 million of OCME Funds. The indictment contained additional substantive counts of embezzlement and money laundering.
The Entry of a Guilty Plea
On October 4, 2007, Venkataram pled guilty after receiving a Pimentel letter, but without an agreement with the Government, to all sixteen counts of a Superseding Indictment charging him with one count of conspiracy to commit embezzlement and money laundering in violation of 18 U.S.C. § 371, one count of embezzlement in violation of 18 U.S.C. § 666 (a)(1)(A) and fourteen counts of money laundering in violation of 18 U.S.C. §§ 1956 (a)(1)(B)(i) and 1956 (a)(2)(B)(i).
On October 23, 2007, Petitioner pled guilty after receipt of a Pimentel letter without an agreement with the Government, to Counts One, Two, Twelve, Thirteen and Fourteen of the Superseding Indictment charging her with one count of conspiracy to commit embezzlement and money laundering, one count of embezzlement and three counts of money laundering. She was not charged in the additional counts of the Superseding Indictment.
On January 17, 2008, the Government submitted a sentencing memorandum for both Venkataram and Petitioner. The Government requested a sentence for Petitioner under the Sentencing Guidelines based on a loss amount of $13 million, the amount of OCME funds embezzled. Pursuant to United States Sentencing Guidelines ("U.S.S.G. or the "Guidelines") § 2B1.1, a base offense level of 6 was applied. Pursuant to Section 2B1.1(b)(1)(K), because the amount of loss exceeded $7 million and was less than $20 million, an increase of 20 offense levels was added and the following enhancements were requested:
1) Two offense levels because the offense involved a misrepresentation that the Defendants were acting on behalf of a governmental agency, OCME. U.S.S.G. § 2B1.1(b)(8)(A);
2) Two offense levels because the Defendants employed sophisticated means in committing the embezzlement. U.S.S.G. § 2B1.1(b)(9)(C);
3) Two offense levels because the Defendants abused a position of public trust to facilitate the offense. U.S.S.G. § 3B1.3;
4) Two offense levels because Abreu willfully obstructed or attempted to obstruct justice. U.S.S.G. § 3C1.1;
5) Two levels because the money laundering offenses of conviction were in violation of 18 U.S.C. § 1956. U.S.S.G. § 2S1.1(b)(2)(B);
6) Two levels because the Defendants employed sophisticated laundering. U.S.S.G. § 2S1.1(b)(3); and
7) No deduction for acceptance of responsibility pursuant to Guidelines Section 3E.1.1 because Abreu had obstructed justice and had not been forthcoming in identifying the present whereabouts of moneys embezzled and effectuating the return thereof.
Accordingly, the Government's position was that Ms. Abreu's sentence under the Guidelines should be 235-293 months of imprisonment. (Gov't ...