Oh, shut up! – Update for October 18, 2016

We’re still doing a weekly newsletter… we’re just posting pieces of it every day.  The news is fresher this way…


shutup161018We’re generally sympathetic to the plight of defendants and the time they serve. Sold some crack? Downloaded some child porn? Ran a Ponzi scheme? Hey, nobody’s perfect, and – whatever the defendant did – we always support a common-sense sentence that doesn’t lock a guy or gal up forever. 
But we may have finally met a defendant whose offense – if not her whining – wants us to say, “Oh, shut up and do your time.” 

Jessica Mann was a bill collector, and by all accounts a pretty good one. She worked for a rotten-to-the-core collection agency named 4 Star, where she quickly became part of the “elite team.” The elites “employed particularly appalling collection tactics,” according to the judge, such as threatening old people with jail if they didn’t pay their bills, misrepresenting herself as a lawyer, and telling the people she called that they had to go to arbitration if they said they didn’t owe the money. None of it was true, but it made Jessica good as separating vulnerable people from their money. In a short while, she browbeat people into paying her firm over $350,000.

Charged with wire fraud, Jess cut a deal, agreeing that the facts set her sentencing range at 63 to 78 months. However, the government and Jess recognized that the November 2015 Guideline amendments would reduce the range to 41 to 51 months, and the parties agreed they would ask the Court to sentence her within that range.

When her sentencing rolled around, Jessica did not get 78 months. She did not get 51 months, or even 41 months. Instead, the judge – balancing “the very serious circumstances of her upbringing and of her adult life and how they may have impacted what she did” with the fact that “the offense in this case . . . took place over a period of years, where she was preying on people that were in worse shape than she” – sentenced her to 12 months and one day. On top of that, Jess was sentenced last May, but didn’t have to report to serve her sentence until September 19, 2016 (she’ll be home for the 4th of July 1017).

Starting out at 78 months and ending up with a year wasn’t good enough for Jess. A week after she reported to prison, she filed a 2255 motion complaining that she should have retroactively gotten Guidelines credit under the revamped USSG Sec. 3B1.2 for her “minimal role” in the conspiracy. Amendment 794 of the Guidelines, effective last November, greatly expanded the circumstances in which a defendant might earn a sentencing range reduction for a minor role.

We admit that even we have trouble mustering up much sympathy for bill collectors who threaten people with criminal prosecution to score a few bucks. We’ve gotten a few of those calls ourselves. Couple that with the incredible sweetheart sentence Jessica got and her unwillingness to accept the judgment, and we’re one part baffled at her post-conviction incompetence and two parts offended by her hubris. The old inmate aphorism is true: the defendant whose sentence is least complains the most.

rig161018This decision is remarkable as an illustration. Inmates, like Donald Trump, often think the system is “rigged” against their post-conviction motions. Sometimes it is. But Jessica has inadvertently provided us with a perfect exhibit of a 2255 motion that is bullshit on stilts. One only can hope that naïve Jessica, fresh off the bus, was misled by some long-time-down jailhouse lawyer eager to score a locker full of ramen noodle soup from the newbie inmate.

This week, her district court dismissed her 2255 motion, giving it much more attention than it deserved in a 26-page order. The usual fate for a 2255 like Jessica’s – which had more holes than a prairie dog town – is a two-sentence order of dismissal. Her judge, however, cared enough to take it seriously, and to fillet it as it deserved.

We’ll start with the waiver. As is usually the case, Jessica’s plea agreement contained a waiver, in which Jessica gave up her right to file a direct appeal or a post-conviction motion under 28 USC 2255 unless she got a sentence above 51 months. Just as F.R.Crim.P. 11 requires, the district court went over the waiver carefully with Jessica, and she told the judge in open court that she understood it. It seemed pretty straightforward, too. Yet the 2255 motion did not even mention it.

This week, her district court dismissed her 2255 motion, giving it much more attention than it deserved in a 26-page order. The court held that an appeal and collateral attack waiver like the one Jessica agreed to is “presumptively enforceable; only in very limited circumstances, such as a violation of a defendant’s Sixth Amendment right to counsel or the Government’s breach of the plea agreement, will it be found unenforceable.” The Court said the “record makes plain that Mann was fully allocuted concerning — and, more importantly, understood — the waiver of her right to challenge a term of imprisonment within or below the Guidelines range. What this means is that Mann’s challenges to her term of imprisonment sentence are barred by her waiver.”

more161018Beyond the fact Jessica’s motion ignored the fact she had promised not to file a 2255, Jessica’s post-conviction argument seemed straight from an alternative universe. She demanded that the 2015 Guidelines be applied to her sentence, when in fact they already had been. She argued she should have received a minor role reduction, even after the court had already varied down from the bottom of her agreed-upon Guideline range by 70 percent. The motion didn’t even get her sentence right, stating she had been sentenced to 24 months, 2 days, when in fact she had gotten half that (and would serve about 10 months).

The Court patiently waded through Jess’s 2255 nonsense, finally noting that even if there were no waiver, and even if the 2015 Guidelines had not already been applied, “the Court would not have imposed a minor role adjustment… Mann did not plan the fraudulent scheme, nor did she supervise others at 4 Star. However, Mann fully understood the scope and structure of the scheme. She also excelled at the scheme to such a degree that she was made a member of the Elite Team, in the course of which she made egregious false statements to victims regarding, among other things, civil and criminal penalties to which they might be subject. And her success in collections put her at the forefront of the Team, realizing some $360,000 from victims in less than one year – a figure that directly impacted her salary… Mann is not substantially less culpable than the average participant in the criminal activity…”

Clearly, the Court was more puzzled than irritated that Jessica was pursuing a 2255 that was, by any measure, frivolous. The judge noted that she had “considered all of the facts specific to Mann in its evaluation of the Section 3553(a) factors. It considered her unfortunate upbringing, her family ties, her medical issues, her prior addictions, and her immediate acceptance of responsibility when interviewed by law enforcement… With all of this information at hand, the Court varied downward substantially from the Guidelines to concurrent terms of imprisonment of one year and one day — which, with contemplated credit for good behavior, will amount to just over ten months’ imprisonment. Stated simply, with or without a minor role reduction, the below-Guidelines sentence Mann received is the lowest sentence the Court would have imposed.”

Mann v. United States, Case No. 16 Civ 7536 (S.D.N.Y. Oct. 11, 2016)


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