United States District Court, D. Montana, Helena Division
L. CHRISTENSEN, CHIEF DISTRICT JUDGE
case comes before the Court on Defendant/Movant Erika Rae
Brown's motion to vacate, set aside, or correct her
sentence, pursuant to 28 U.S.C. § 2255. Brown is a
federal prisoner proceeding pro se.
the United States is required to respond, the Court must
determine whether "the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief." 28 U.S.C. § 2255(b); see
also Rule 4(b), Rules Governing Section 2255 Proceedings
for the United States District Courts. A petitioner "who
is able to state facts showing a real possibility of
constitutional error should survive Rule 4 review."
Calderon v. United States Dist. Court, 98 F.3d 1102,
1109 (9th Cir. 1996) ("Nicolas")
(Schroeder, C.J., concurring) (referring to Rules Governing
§ 2254 Cases). But the Court should "eliminate the
burden that would be placed on the respondent by ordering an
unnecessary answer." Advisory Committee Note (1976),
Rule 4, Rules Governing § 2254 Cases, cited in
Advisory Committee Note (1976), Rule 4, Rules Governing
§ 2255 Proceedings.
January 7, 2015, a grand jury indicted Brown on two counts of
money laundering, violations of 18 U.S.C. § 1957 (Counts
1 and 2), and two counts of making a false statement to a
government agency, violations of 18 U.S.C. § 1001(a)(2)
and (3) (Counts 3 and 4). The Indictment alleged that Brown
defrauded Excel National Bank ("the Bank") by
persuading it to loan millions of dollars to blue Vault LLC,
a company purportedly organizing construction and management
of a data storage company near Darby, Montana. Brown
presented fictitious letters of intent to use blue
Vault's services or to purchase the company. She also
presented false invoices and checks to obtain two
disbursements of $19, 980 from the Bank in February and March
2010. The United States Department of Agriculture
("USDA") guaranteed the Bank's loan to Brown.
In November 2011, Brown made false statements and provided
false documents to USDA. See Indictment (Doc. 1) at
convicted on Counts 1 or 2, Brown faced a maximum prison
sentence of ten years and/or a maximum fine of the greater of
$250, 000, twice the amount of any criminally derived
property, or twice the pecuniary gain or loss. See
18 U.S.C. §§ 1957(b)(1), 3571(b)(3), (d). If
convicted on Counts 3 or 4, Brown faced a maximum prison
sentence of five years and/or a fine up to $250, 000. See
Id. § 1001(a).
March 4, 2015, Brown moved to change her plea from not guilty
to guilty. A plea agreement was filed on March 10, 2015.
Brown agreed to plead guilty to Count 1. The United States
agreed to dismiss Counts 2, 3, and 4 and conditionally agreed
to seek a three-level reduction in the offense level for
acceptance of responsibility, and agreed to recommend a
sentence at the low end of an advisory guideline range of 57
to 71 months. Both parties conditionally agreed to waive
appeal. See Plea Agreement (Doc. 13) at 2 ¶ 2,
6-7 ¶ 6 paras. 1-2, 7 ¶ 8(a) para. 1. As to
restitution, the agreement provided:
Restitution to the United States Department of
Agriculture and EH National Bank
Counts II through IV gave rise to this plea agreement. 18
U.S.C. § 3663A(c)(2). The defendant acknowledges and
agrees to be responsible for complete restitution regardless
of whether a count or counts of the Indictment will be
dismissed as part of this plea agreement. 18 U.S.C. §
3663A(a)(3). In particular, the defendant agrees to pay $2,
987, 678.26 to the United States Department of Agriculture
and $753, 369.56 to EH National Bank. Moreover, the defendant
acknowledges that additional restitution may be ordered upon
a final loss settlement between the United States Department
of Agriculture and EH National Bank. See 18 U.S.C. §
Id. at 3 ¶ 3 para. 2. No provision of the plea
agreement was binding on the Court. See Id. at 2
¶ 3, 7 ¶ 6 para. 2; Fed. R. Crim. P. 11(c)(1);
Change of Plea Tr. (Doc. 51) at 5:23-8:10.
change of plea hearing, the parties explained that Brown
obtained a $4 million loan and "the entire bank loan is
the specified unlawful activity." The discrete amount of
$19, 980 paid to S.M. on February 12, 2010, was selected to
establish a specific transaction involving more than $10,
000. See 18 U.S.C. § 1957(a); Change of Plea
Tr. at 29:13-31:20. In response to the United States'
offer of proof, Brown personally stated that A.T., who worked
on the project business plan, "did not say anything
about the project being unfeasible for the location and
having high start-up costs which would make it
non-feasible." Change of Plea Tr. at 34:9-13;
compare Offer of Proof (Doc. 22) at 4 para. 3. Brown
pled guilty to Count 1 in open court. See Change of
Plea Tr. at 35:12-14.
United States Probation Office drafted a presentence report.
See Fed. R. Crim. P. 32(d)-(g). The Probation Office
calculated the loss at $4, 588, 287, or more than $2.5
million but less than $7 million, resulting in an 18-level
upward adjustment under U.S.S.G. §2B 1.1 (b)(1)(J).
See Presentence Report ¶ 49. Brown objected by
tracing the allocation of the proceeds of the loan,
eliminating the sums that went to other people or entities,
and arguing that the amount of the loss should be limited to
Brown's own personal gain of $64, 261. See
Objection # 1, Presentence Report at 34 para. 2, 35 para. 5;
see also U.S.S.G. § 2B1.1 cmt. n.3(B) (Nov. 1,
2014). Brown also objected to S.M.'s receipt of
restitution on the grounds that he should be viewed as a
co-conspirator rather than a victim. See Objection
#2, Presentence Report at 35-36.
sentencing, S.M. did not appear. The United States withdrew
its request for restitution for him. See Sentencing
Tr. at 4:22-5:8. Brown's objection to the amount of the
loss was overruled. The final loss amount was $3, 741,
047.82, the same as the amount of restitution set forth in
the plea agreement. Brown was sentenced to serve 56 months in
prison, to be followed by a three-year term of supervised
release. She was also required to pay $2, 987, 678.26 to USDA
and $753, 369.56 to the Bank, as the plea agreement required.
appealed, challenging the loss amount and the sentencing
court's denial of her request for a downward variance.
The Ninth Circuit Court of Appeals affirmed her sentence. Her
conviction became final on December 14, 2016. See
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). She timely
filed her § 2255 motion on July 10, 2017. See
28 U.S.C. § 2255(f)(1); Houston v. Lack, 487
U.S. 266, 276 (1988).
Claims and Analysis
claims that counsel was ineffective in various respects.
These claims are governed by Strickland v.
Washington, 466 U.S. 668 (1984). At this stage of the
proceedings, Brown must allege facts sufficient to support an
inference (1) that counsel's performance fell outside the
wide range of reasonable professional assistance,
id. at 687-88, and (2) that there is a reasonable
probability that, but for counsel's unprofessional
performance, the result of the proceeding would have been
different, id. at 694. "[T]here is no reason
... to address both components of the inquiry if the
defendant makes an insufficient showing on one."
Id. at 697.
claims are reorganized here, but all are addressed. Three of
her claims go to the voluntariness of her guilty plea. She
also contends the prosecution breached the plea agreement and