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Price v. United States

United States District Court, S.D. Georgia, Statesboro Division

February 8, 2017

AUBREY LEE PRICE
v.
UNITED STATES

          REPORT AND RECOMMENDATION

         Aubrey 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.

         Yet, he 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[1] for "personal gain, " but only to try "to save the bank from failure and my investors from financial loss." Id. at 3.

         I. BACKGROUND

         From 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[2] 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.

         Sentencing 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.

         II. ANALYSIS

         "To 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 prejudice.").

         A. Lost Appeal

         Price 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:

         XI. Waivers

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.

         B. 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 added)).[3]

         Two days after sentencing, and consistent with that double waiver, Price conferred with counsel and signed this "POST-CONVICTION ...


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