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United States of America v. Virdell Hicks

February 15, 2013



Defendant/Movant Virdell Hicks has moved the Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 34] More specifically, Hicks seeks to have his thirty-month term of incarceration reduced. He also asks that this Court direct that his period of incarceration run concurrent with another sentence that was subsequently imposed by the United States District Court for the Southern District of Ohio. As grounds for his motion, Hicks contends that his trial attorney was ineffective. However, after reviewing the materials filed by the parties*fn1 , the Court concludes that Hicks's arguments and assertions are without merit. Therefore, his motion will be denied and this collateral proceeding will be dismissed.


On February 11, 2010, a federal grand jury returned a one-count indictment charging Defendant Hicks with violating 18 U.S.C. § 912. More specifically, the indictment alleged that, on or about January 21, 2010, Hicks "falsely assume[d] and pretend[ed] to be . . . a Special Agent of the United States Secret Service investigating certain persons arrested by local law enforcement . . ." [Record No. 1] Hicks assumed this false identity to seek the release of a coconspirator being held by local law enforcement. The details of the offense were aptly summarized by the government during Hicks' plea hearing.

The defendant, on the evening of January 21st, 2010, three times represented himself to be an agent of the United States Secret Service. He did so first to an Officer Jeff Nagy, a local police officer who was present on the scene at the Kroger's location in Erlanger, Kentucky. He did so subsequently to a Sergeant Doug Eagler of the Erlanger Police Department in a conversation that was subsequently made. He did so finally, . . . in a conversation with a pretrial officer, Yanel Robinson, made subsequently that evening. On each occasion, the defendant represented that he was one Steve Schwartz of the United States Secret Service. There is, in fact, a Steve Schwartz of the United States Secret Service who's a supervisor in the Cincinnati field office.

Additionally, . . . ultimately the attempt -- the request that was made on each of those occasions, which was for the release, more or less of two suspects in local counterfeiting check operations, the request being that they be released, ultimately while not successful, per se, generally the plan was successful in that one of those individuals who had been arrested was released on a low bond, a bond that was lowered based on, in reliance on, the defendant's representation that he was Steven Schwartz. She was a key party to an ongoing investigation. [Record No. 30, at p. 15-16]

A. The April 26, 2010, Rearraignment Hearing

Hicks was re-arraigned on April 26, 2010.*fn2 After being placed under oath, the defendant was questioned by the Court and found competent to enter a guilty plea. [Record No. 30, at p. 3] During questioning, Hicks stated that he had not been promised or told that he would receive a specific sentence in exchange for entering a plea of guilty. [Id., at p. 7] The Court specifically advised Hicks that it could impose up to the maximum statutory penalty at the time of sentencing. The undersigned explained that "[t]he statutory penalties . . . would be a term of incarceration of not more than three years, a term of supervised release of not more than one year. Also, the Court could impose a fine of up to $250,000, and there's a special assessment of $100 that would be applied to your case." [Id., at p. 8] Further, the Court specifically advised the defendant that, until the Presentence Investigation Report ("PSR") had been prepared and any objections resolved, neither the attorneys nor the Court would be able to determine the exact guideline range to be applied in his case. [Id., at p. 9]

Hicks also confirmed that he understood that the Court would consider all relevant factors contained in 18 U.S.C. §3553 in imposing a sentence in his case.

THE COURT: . . . [I]n addition to the Sentencing Guidelines, there are a number of statutory factors that courts consider in imposing sentences. They're contained in Title 18, Section 3553 of the United States Code. Let me take just a moment to go through some of those factors.

They include the nature and the circumstances of the offense, as well as the history and characteristics of the person that's to be sentenced. The Court will also consider the need for the sentence to reflect the seriousness of the offense, the need to promote respect for the law, and to provide a just punishment for the offense. The Court will also consider whether there's a need to protect the public from any future crimes of the defendant, and the Court will consider the deterrent effect that the sentence would have. Another factor that the Court often considers is whether a particular defendant needs any type of educational or vocational training, any medical care or treatment or treatment for any addictions that might be present, such as an addiction to drugs or alcohol.

And do you understand that those are all factors that the Court can consider in imposing a sentence?

THE DEFENDANT: Yes, sir. [Id., at p. 10]

After the Court reviewed the charge contained in the indictment, Hicks explained what he had done to be guilty of that charge.

THE DEFENDANT: I gave a false pretense of saying that I was an agent of the United States Secret Service.

THE COURT: Did you do that on or about the date that's charged, which is January 21st of this year?


THE COURT: And did one or more of your actions take place in Kenton County, which is in the Eastern District of Kentucky?


At that time, you said that you assumed or that you gave the impression that you were a special agent of the Secret Service. Did you do that -- make that representation to a local law enforcement officer?

THE DEFENDANT: Yes, I did, sir.

THE COURT: And was that in an attempt to have someone released or to have a lower ...

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