United States District Court, D. Kansas
MEMORANDUM AND ORDER
MONTI L. BELOT, District Judge.
Before the court are the following:
1. Defendant's pro se motion pursuant to 28 U.S.C. § 2255 (Doc. 88);
2. Government's response (Doc. 89); and
3. Defendant's reply (Doc. 90).
In its decision of November 14, 2013, the Tenth Circuit summarized defendant's offenses of conviction as follows:
After Defendant pleaded guilty, the probation office prepared a PSR. Unchallenged portions of the PSR set forth the following: Defendant is a citizen of Nigeria who had resided in Great Britain before coming to this country. In Great Britain he had been convicted of several felonies involving fraud and deception. He entered the United States in 2009 on a visa by falsely stating in his visa application that he had not been convicted of a crime. In 2011 he submitted an application for status as a permanent resident, again falsely answering that he had no criminal convictions. The 2011 false statement was the basis for his conviction under 18 U.S.C. § 1546. Defendant's mail fraud conviction under 18 U.S.C. § 1341 was based on his use of the mails to engage in an identity-theft scheme. He would purchase merchandise with credit cards issued to other persons and have the merchandise delivered to him.
United States v. Oyegoke-Eniola , 734 F.3d 1262 (10th Cir. 2013).
The Circuit determined that I abused my discretion because I did not properly resolve objections to two guideline enhancements set forth in the presentence report. When the Statement of Reasons was filed, it indicated that I adopted the presentence report without change. Defendant's appellate counsel caught this error and the Circuit vacated defendant's sentence and remanded for further proceedings. The Circuit also addressed defendant's claim that I should not have considered his statements made in connection with a Kastigar letter. It pointed out that, in the absence of a specific agreement in the Kastigar letter that it could be used for an upward guideline departure, "... neither the guidelines nor our cases address the use of immunized statements to vary upwards, and at least one court has suggested that § 1B1.8(a) does not apply to variances. See United States v. Patel, 457 F. Appx. 549, 551 (6th Cir. 2012)." Id. at 12. The Circuit went on to say that I should determine "... in the first instance whether it can (or wishes to) use Defendant's statements for sentencing purposes." Id.
I ordered the preparation of an amended presentence report (Doc. 82) and on March 24, 2014, I held an evidentiary resentencing hearing (Doc. 87). I declined to impose the two enhancements. The Kastigar letter did not come up during resentencing and I did not consider the letter or its contents in imposing a new sentence. (Had I done so, I would have at the very least cited and discussed 18 U.S.C. § 3661). At the time defendant was resentenced, he had already served the re-calculated guideline sentence so I imposed a sentence of time-served. Defendant did not object to the sentence and he filed a written waiver of appeal on March 25, 2014 (Doc. 84).
At the time of resentencing, defendant was subject to an immigration detainer. I have been informed by the U.S. Attorney that on August 7, defendant was ordered deported but that he has filed an appeal. Defendant has been denied bond pending completion of the immigration proceedings and I commend the immigration judge for making those decisions.
Defendant makes two claims in support of his § 2255 motion: (1) his conviction under 18 U.S.C. § 1546 must be set aside because he either did not make a false statement or if he did, it was not made under oath and was not material and (2) his conviction under 18 U.S.C. § 1341 must be set aside because it was based on statements covered in the Kastigar letter. The first claim was not raised in any manner in defendant's direct appeal. A claim concerning the ...