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United States v. Read-Forbes

United States District Court, D. Kansas

August 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MENDY READ-FORBES, Defendant. Criminal Action No. 12-20099-01-KHV

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, United States District Judge.

         On April 23, 2015, the Court sentenced defendant to 240 months in prison. This matter is before the Court on defendant's Amended Motion To Vacate, Set Aside Or Correct A Sentence Under 28 U.S.C. § 2255 (Doc. #312) filed August 16, 2016. On July 28, 2017, the Court held an evidentiary hearing on defendant's motion. For reasons stated below, the Court overrules defendant's motion and denies a certificate of appealability.[1]

         Factual Background

         On January 23, 2013, a grand jury returned an indictment which charged defendant with conspiracy to commit money laundering, 16 counts of laundering the proceeds of drug transactions, conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana. See Superseding Indictment (Doc. #78).[2] On April 21, 2014, pursuant to a plea agreement under Rule 11(c)(1)(C), Fed. R. Crim. P., defendant pled guilty to one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). Plea Agreement (Doc. #132). The agreement proposed a sentencing range of 84 to 180 months in prison. See id. ¶ 3. Under the agreement, the government stipulated that at sentencing, it would dismiss the remaining 18 counts of the superseding indictment and also dismiss Case 13-20041-01. See id. ¶ 1.

         At a sentencing hearing on January 28, 2015, the parties agreed to resolve various sentencing objections: (1) defendant agreed that her offense level should be enhanced two levels under Section 3B1.4 of the United States Sentencing Guidelines for use of a minor; (2) the government agreed to withdraw its request for a four-level enhancement under Section 2S1.1(b)(2)(C) for being in the business of laundering money and its request for a two-level enhancement under Section 3B1.3 for abuse of a position of trust and (3) defendant agreed to withdraw her objection to the amount of money laundered under Section 2S1.1. Defendant had a total offense level of 37 with a criminal history category I, for a guideline range of 210 to 240 months.[3] S e e Transcript (Doc. #236) at 5; Presentence Investigation Report (Doc. #161) filed December 2, 2014, ¶¶ 187, 225-38. After hearing testimony and defendant's allocution, the Court rejected the plea agreement. The Court stated as follows:

[Defendant is] continuing to try to manipulate people to get a better outcome for herself instead of . . . falling on the sword and just taking the facts for what they are and quit trying to manufacture evidence in support of bogus positions. * * *
And because she doesn't get it, I am very confident that she's going to commit future crimes, that she's going to say anything - that she'll continue to manipulate people to accomplish what she wants, that she will continue to lie to get her way, that she has undisguised contempt for the legal system. * * *
The parties here have proposed a binding plea of 84 to [1]80 months followed by three years of supervised release, no fine, and a mandatory special assessment. In addition, there would be restitution in the amount of $370, 003.70 minus any claims made in the corresponding civil lawsuit. In addition, Ms. Forbes would agree to pay restitution for all counts, including dismissed counts in Case 12-20099.
When I look at the record in this case, including most particularly the presentence report, the statements of counsel, and especially the allocution and the statements of Ms. Forbes and the evidence which I heard here today . . . I, in good conscience, cannot accept the proposed agreement. So I am rejecting it and will set this matter for a status conference . . . after the parties have had a chance to decide whether they want to try to renegotiate the plea agreement or to set the matter for trial.

Transcript (Doc. #236) at 191, 200, 202.

         On March 18, 2015, defendant again pled guilty to one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). Plea Agreement (Doc. #204). The revised agreement was not under Rule 11(c)(1)(C), but it included a joint recommendation to sentence defendant to 210 months, the low end of the agreed guideline range of 210 to 240 months. See Id. ¶ 3. On April 23, 2015, the Court sentenced defendant to 240 months.

         Defendant appealed. On August 31, 2015, the Tenth Circuit granted the government's motion to enforce the appeal waiver in the plea agreement and dismissed the appeal. See Order And Judgment (Doc. #254).

         Shazzie Naseem represented defendant throughout the district court proceedings in this case.[4]Debra A. Vermillion represented defendant in Case No. 13-20041.

         On September 24, 2015, defendant filed a pro se motion to vacate her sentence under 28 U.S.C. § 2255. See Motion Under 28 U.S.C. § 2255 (Doc. #255). On April 8, 2016, John R. Osgood entered an appearance on her behalf. The Court subsequently granted defendant leave to file an amended Section 2255 motion which asserts a single claim that Naseem provided ineffective assistance. See Amended Motion To Vacate, Set Aside Or Correct A Sentence Under 28 U.S.C. § 2255 (Doc. #312). Defendant alleges that Naseem provided ineffective assistance because he did not argue at either ...


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