On Thursday, U.S. District Judge Mark H. Cohen denied Fayne’s resentencing bid, noting that Fayne had failed to object to a magistrate judge’s recommendation that the sentence stand.
“The court finds no plain error and that the (recommendation) is supported by law,” Cohen wrote in an order.
Fayne, 41, has represented himself in his attempt to be resentenced. He has gone through at least five attorneys since being arrested in May 2020, repeatedly claiming he has received ineffective counsel, court records show.
In late February, Fayne sent a handwritten letter to the court, asking for more time to submit documentation in support of his request. He said he was being held at a penitentiary in Atlanta while awaiting transfer to another facility, having served part of his sentence at a federal prison in Oklahoma.
Fayne said he didn’t have access to his property, which he needed for the case.
“I’m not in control of when I will leave nor when my property will arrive,” he wrote in the letter.
Federal Bureau of Prisons records show Fayne is now at a low security federal prison in Arkansas with a projected release date of Dec. 14, 2032.
On May 3, U.S. Magistrate Judge John K. Larkins III issued his recommendation that Fayne’s request be denied, saying Fayne had missed several deadlines to submit court filings. Larkins said he’d warned Fayne on March 12 that he had 30 days in which to file a memorandum in support of his resentencing bid, but that Fayne had not responded.
“In that order, I noted that even without his property (Fayne) could provide more factual details to support his claims and that he already had been provided with several months to do so,” Larkins said. “And I warned (Fayne) that the court may not be inclined to grant any further requests for an extension.”
Fayne alleged that prosecutors had breached his plea agreement by emphasizing his criminal history and the details of his fraud during his sentencing. He also claimed they failed to meaningfully argue for their recommended sentence of just over 12 years in prison.
In July 2022, the U.S. Court of Appeals for the 11th Circuit upheld Fayne’s sentence, noting that prosecutors had stood by the lower recommended sentence, albeit “grudgingly” after learning about Fayne’s criminal history. The government fulfilled its obligations under the plea agreement, the appellate court held.
Judges are not bound by sentence recommendations in plea agreements.
Fayne initially pleaded not guilty to a 20-count indictment accusing him of running a sham investment scheme tied to his small trucking company. Prosecutors said he used more than $5 million from investors to pay gambling debts and entertainment expenses at the Choctaw Casino and Resort in Oklahoma.
Fayne also used his “Flame Trucking” business to fraudulently obtain a $3.7 million Paycheck Protection Program loan during the coronavirus pandemic, prosecutors alleged. They said Fayne used the loan to buy jewelry, lease a Rolls-Royce and pay child support, among other things.
In May 2021, Fayne pleaded guilty to three counts of wire fraud and single counts of bank fraud, conspiracy to commit wire fraud, and making false statements to a financial institution. He was sentenced to 17.5 years in prison and five years of supervised release and ordered to pay $4.4 million in restitution.
Fayne was also ordered to forfeit almost $100,000 and eight trucks.
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