United States District Court, S.D. Georgia, Statesboro Division
REPORT AND RECOMMENDATION
Lee Price, a former pastor and investment adviser, defrauded
115 investor clients and a South Georgia bank before faking
suicide to live on the lam. Facing a potential
560-year sentence, he bargained with the Government
to plead guilty to fraud-based charges in exchange for a
360-month sentence cap. CR614-016, doc. 3; doc. 8;
doc. 10 at 75; doc. 31 at 2; doc. 39 at 58-59; the
Presentence Investigation Report (PSR) at 22 ¶ 103. He
also agreed to waive his right to direct appeal and
collateral review subject to inapplicable exceptions. Doc. 8
at 16. The Court accepted that agreement and then sentenced
him to 360 months. Doc. 31. By written election, doc. 40,
Price took no appeal.
now moves for 28 U.S.C. § 2255 relief. Doc. 33. He seeks
a reduced sentence or, in the alternative, "his appeal
rights reinstated." Id. at 6. He complains that
his lawyer was ineffective for: (a) failing to adequately
consult with him on an appeal; and (b) failing to prove, at
sentencing, that Price didn't swindle his victims out of
millions for "personal gain, " but only
to try "to save the bank from failure and my investors
from financial loss." Id. at 3.
the Probation Officer's 2014 Sentencing Recommendation:
Aubrey Lee Price, age 48, is before the Court having pled
guilty to bank fraud, securities fraud, and wire fraud.
Specifically, from an unknown date until June 2012, Price
lost millions of dollars of investor funds through
speculative trading while he [re] ported false capital gains
to his investors. Price's criminal conduct culminated
into him fraudulently losing over $45, 000, 000 belonging to
at least 115 identified individual victims, and the closure
of MB&T bank.
In June 2012, upon realizing the looming closure of the bank
and the probability of him being indicted, Price faked his
death. While on the lam for 18 months, Price assumed a false
identify and used forged documents to elude prosecution;
Price advised certain family members and friends who knew of
his existence to not disclose to law enforcement authorities
that he was alive; Price followed the media coverage
regarding his pending charges and disappearance; Price
authored "The Inglorious Fugitive, " a 79-page
memoir that outlines his fraud and life as a
fugitive; Price knowingly traveled outside the United States
as a fugitive and deliberately arranged his travel to avoid
law enforcement interference; and Price participated in a
marihuana grow operation and the distribution of illicit
drugs while living on the lam in Florida. The day after his
instant arrest, agents seized 225 marihuana plants and
computer software necessary to make fake identification
documents from Price's residence in Circa, Florida. It
should be noted that the defendant's participation in the
distribution of marihuana, a Schedule I controlled substance,
had no impact on the guideline calculations.
Recommendation at 1-2 (footnote added). The Probation Officer
recommended a 300-month sentence plus "Restitution in
the amount of $45, 939, 944.39." Id. at 2. The
Court imposed 360 months and $42, 837, 800.77 in restitution.
Doc. 31 at 2, 5.
prevail on a claim of ineffective assistance of counsel
[(IAC)], a prisoner must prove that his counsel rendered
deficient performance and that he was prejudiced by the
deficient performance." Castillo v. United
States, 816 F.3d 1300, 1303 (11th Cir. 2016) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
In evaluating adequacy of performance, "counsel is
strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment." Strickland, 466 U.S. at
690. "For performance to be deficient, it must be
established that, in light of all the circumstances,
counsel's performance was outside the wide range of
professional competence." Putman v. Head, 268
F.3d 1223, 1243 (11th Cir. 2001). On the prejudice prong, a
defendant must show "that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 6941
Mature v. Wainwright, 811 F.2d 1430, 1434 (11th Cir.
1987) (same); see also Butcher v. United States, 368
F.3d 1290, 1293 (11th Cir. 2004) ("[A]ttorney errors
come in an infinite variety and are as likely to be utterly
harmless in a particular case as they are to be prejudicial.
That the errors had some conceivable effect on the
outcome of the proceeding is insufficient to show
claims that his lawyer "neglected to apprise me of the
advantages and disadvantages of filing a direct appeal in my
criminal case. Specifically, he advised me that I had no
right to file an appeal because I had waived my appeal rights
in my plea agreement. But for this advice, I would have
insisted on filing an appeal." Doc. 33 at 3. He does not
dispute that he received a substantial plea bargain benefit ~
reduced (from 560 years to 360 months) sentence exposure.
Unsurprisingly, the Government wants its end of that deal: to
be spared collateral appeal costs. Doc. 41 at 17-19. That
includes not having to respond to this very claim.
The Government's § 2255 opposition brief reproduces
the double-waiver portion of Price's plea agreement:
A. Waiver of Appeal
Defendant Aubrey Lee Price entirely waives his right to a
direct appeal of his conviction and sentence on any ground.
The only exceptions are that the Defendant Aubrey Lee Price
may file a direct appeal of his sentence if (1) the court
enters a sentence above the statutory maximum, (2) the court
enters a sentence above the advisory Sentencing Guidelines
range found to apply by the court at sentencing; or (3) the
Government appeals the sentence. Absent those exceptions,
Defendant Aubrey Lee Price explicitly and irrevocably
instructs his attorney not to file an appeal.
Waiver of Collateral Attack
Defendant Aubrey Lee Price entirely waives his right to
collaterally attack his conviction and sentence on any
ground and by any method, including but not limited to a
28 U.S.C. § 2255 motion. This waiver shall not limit any
right that the Defendant may have or acquire pursuant to
Title 18, United States Code, Section 3582(c).
Doc. 41 at 5 (quoting doc. 8 at 16 (emphasis
days after sentencing, and consistent with that double
waiver, Price conferred with counsel and signed this