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Marlene Bossous v. United States of America

September 26, 2012

MARLENE BOSSOUS,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION AND ORDER

Marlene Bossous ("Bossous") has filed a timely petition pursuant to 28 U.S.C. § 2255, challenging her sentence. She was sentenced principally to 70 months' imprisonment, the bottom of a stipulated guidelines range, following her entry of a plea of guilty to one of the four felony charges for which she had been indicted. For the following reasons, the petition is denied.

BACKGROUND

On October 14, 2009, Bossous was indicted for one count of conspiracy to commit wire and bank fraud under 18 U.S.C. § 1349, and three substantive counts of wire fraud under 18 U.S.C. § 1343. On April 8, 2010, she executed a written plea agreement in which she agreed to plead guilty to the charged conspiracy ("Agreement").

The Agreement contained a stipulation that the offense level for the Count One conspiracy was 27. The base level was enhanced through three adjustments for the amount of loss, number of victims and the defendant's role in the offense. Because the loss attributable to Bossous' conduct "exceeds $2,500,000 but is less than $7,000,000," the offense level was increased by 18 levels. Because the offense "involved 10 or more victims," it was increased by 2 levels. Anticipating a three-level adjustment for acceptance of responsibility, the parties agreed that the sentencing guidelines range would be 70 to 87 months' imprisonment. While either party could "seek a sentence outside the Stipulated Guidelines Range," the parties stipulated that neither would seek an upward or downward departure.

In addition, the Agreement contained the following waiver:

It is agreed (i) that the defendant will not file a direct appeal, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Guidelines Range set forth above (70 to 87 months' imprisonment). . . . It is further agreed that any sentence within the Stipulated Guidelines Range is reasonable. This provision is binding on the parties even if the Court employs a Guidelines analysis different from that stipulated to herein. . . .

The defendant pleaded guilty on April 8, 2010. During her plea allocution the following exchange occurred after the defendant identified her signature on the Agreement:

THE COURT: Before signing this agreement, did you read it?

THE DEFENDANT: Yes, your Honor. . . .

THE COURT: When you signed it, did you think you understood the agreement?

THE DEFENDANT: Yes, your Honor.

THE COURT: In this agreement there is a guidelines calculation. It's not binding on me but there is a calculation between the part[ies] that your guidelines range is 70 to 87 months in prison. Do you understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand that by signing this agreement you have agreed that you will not appeal or challenge or litigate your sentence so long as I don't ...


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