UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

UNITED STATES OF AMERICA 

 VS. 

WILLIAM SPEYBROECK 

) 

) 

) 

) 

) 

CAUSE NO. 3:14-CV-1626-RLM

(ARISING OUT OF 3:13-CR-117-RLM)

OPINION and ORDER 

William Speybroeck stole Digitrak F1 locators from two of his employers 

and then listed one of the locators for sale on eBay. Eric Klein agreed to buy the 

locator and sent Mr. Speybroeck $9,000 via wire transfer. Mr. Speybroeck didn’t 

deliver the locator, so Mr. Klein went to the police. Mr. Speybroeck pleaded guilty 

to the sole count of the information charging him under 18 U.S.C. § 2314 with 

unlawful possession or transportation of stolen merchandise. On March 12, 

2014, the court sentenced Mr. Speybroeck to 33 months’ imprisonment followed 

by two years of supervised release, restitution in the amount of $9,250, and a 

fine of $3,000 in addition to the mandatory $100 special assessment. Mr. 

Speybroeck has filed a motion pursuant to 28 U.S.C. § 2255 requesting that his 

sentence be vacated, set aside, and corrected. 

In his plea agreement, Mr. Speybroeck waived his right to appeal his 

conviction and sentence and the manner in which his conviction and sentence 

were determined or imposed,1 but this waiver didn’t include a § 2255 claim of 

 

1 In paragraph 9(e), Mr. Speybroeck agreed: “I expressly waive my right to appeal or to 

contest my conviction and my sentence or the manner in which my conviction or my sentence 

was determined or imposed, to any Court on any ground . . . .” (Doc. No. 2). 
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ineffective assistance of counsel directly related to the waiver of his appeal rights 

or the waiver’s negotiation. This exception acknowledges that a § 2255 waiver 

doesn’t apply to a defendant’s claims that he received ineffective assistance of 

counsel in negotiating the plea agreement or that the plea agreement wasn’t 

knowingly and voluntarily made. Jones v. United States, 167 F.3d 1142, 1145 

(7th Cir. 1999). To prevail on an ineffective assistance of counsel claim, the 

defendant must (1) demonstrate that counsel’s performance fell below objective 

standards of reasonableness, and (2) show that the deficient performance 

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Yu 

Tian Li v. United States, 648 F.3d 524, 527 (7th Cir. 2011). In his § 2255 motion, 

Mr. Speybroeck claims that his attorney’s performance was deficient because the 

court imposed restitution that wasn’t mentioned in the plea agreement or at the 

plea colloquy, he received a six-level enhancement to his offense level, and he 

didn’t receive a third point for acceptance of responsibility. 

I. RESTITUTION

 Mr. Speybroeck’s principal argument is that his counsel was ineffective 

because the court imposed restitution. He says the plea agreement didn’t have a 

restitution stipulation, and when asked by the court during the plea colloquy 

whether restitution was implicated, the government said – “No. The property was 

recovered.” (Doc. No. 23). Mr. Speybroeck contends the court’s imposition of 

restitution means the government breached the plea agreement. 
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 The plea agreement said nothing about restitution.2 And Mr. Speybroeck 

is correct that at the change of plea hearing the government told the court that 

restitution wouldn’t be an issue. The parties’ oversight of the potential restitution 

is arguably a basis for Mr. Speybroeck to move to withdraw his guilty plea, but 

that isn’t what his § 2255 motion seeks. Mr. Speybroeck wants to be resentenced 

to a shorter term of imprisonment. The government’s statement – that the 

property had been recovered – overlooked that Mr. Speybroeck had stolen from 

more than one victim. As noted in paragraph 19 of the presentence report, which 

was adopted by the court, the Mandatory Victim Restitution Act of 1996 applied 

to Mr. Speybroeck’s offense – unlawful possession or transportation of stolen 

merchandise, in violation of 18 U.S.C. § 2314 – which was a Title 18 offense 

against property. 18 U.S.C. § 3663A(c)(1)(A)(ii). Consequently, the court was 

required to order Mr. Speybroeck to pay restitution to the victims of his crime. 

18 U.S.C. § 3663A(a)(1) (“[W]hen sentencing a defendant convicted of [Title 18 

offenses against property], the court shall order, in addition to . . . any other 

penalty authorized by law, that the defendant make restitution to the victim of 

the offense . . . .”); United States v. Randle, 324 F.3d 550, 555 (7th Cir. 2003). 

Mr. Klein was an identifiable victim with a pecuniary loss,3 and the court had to 

 

2 Paragraph 9(c) reviewed the maximum possible penalty for a violation of 18 U.S.C. § 

2314, which was ten years of imprisonment and/or a $250,000 fine, a three-year term of 

supervised release, and a mandatory $100 special assessment. 

3 The Indiana State Police verified that the locators were returned to the proper 

businesses – Gordon Engineering and Meade Electric. 
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impose restitution in order to (attempt to) make him whole again. Moreover, the 

imposition of restitution didn’t affect the court’s calculation of the appropriate 

term of imprisonment. So, the restitution oversight didn’t affect the court’s 

determination of Mr. Speybroeck’s sentence, and the sentence is what he seeks 

to change. 

II. LOSS AMOUNT

 Mr. Speybroeck also argues his counsel was ineffective because the 

probation department increased his offense level by six levels. He claims the 

enhancement breached the plea agreement and resulted in an improper 

sentence. 

 The six-level enhancement that Mr. Speybroeck contends was improper 

related to the loss amount. A loss amount of more than $30,000 but less than 

$70,000 required a six-level enhancement. U.S.S.G. § 2B1.1(b)(1)(D). The plea 

agreement didn’t specify the loss amount, so the government’s proposed loss 

amount couldn’t breach the agreement. In paragraph 9(d) of the plea agreement, 

Mr. Speybroeck agreed: 

I understand that under the U.S. Sentencing Guidelines, the Court, 

in light of an investigation by the United States Probation Office, will 

determine the applicable sentencing guideline range, and that the 

Court will determine all matters, whether factual or legal, relevant 

to the application of the sentencing guidelines including, but not 

limited to, the adjusted offense level [and] the relevant 

circumstances in the case . . . . 

(Doc. No. 2) (emphasis added). As Mr. Speybroeck acknowledged, the court 

determines the adjusted offense level. The loss amount determines the 
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appropriate increase in the offense level, and hence, the court determines the 

loss amount. 

The presentence report estimated the loss amount attributable to Mr. 

Speybroeck’s thefts to be $49,000 (two locators valued at $20,000 each plus 

$9,000 cash). Mr. Speybroeck objected to the presentence report’s loss 

calculation. He testified at the sentencing hearing that the locator was only worth 

$10,000 because it was five to six years old. The government presented evidence 

that Meade Electric purchased its locator for $17,500 and the locator was worth 

$15,600 when Mr. Speybroeck stole it. Thus, the government calculated the loss 

amount to be $40,200 (two locators valued at $15,600 each plus $9,000 cash). 

The court noted that Mr. Speybroeck’s use of the equipment didn’t provide him 

a great deal of expertise in appraising that equipment and his evaluation of the 

loss amount ignored that he tried to keep both the locator and the $9,000 he 

had received from Mr. Klein. The court instead relied on the government’s 

evidence of the locator’s value and determined the loss amount exceeded 

$30,000 and the six-level enhancement was proper. 

Mr. Speybroeck’s attorney objected to the loss amount proposed in the 

presentence report and presented evidence of a lower value for the locator at the 

sentencing hearing. Mr. Speybroeck doesn’t tell the court how his attorney’s 

performance was deficient; he argues the end result of a six-level enhancement 

means his attorney was ineffective. His allegation lacks any substance to support 

his conclusion. The probation officer, counsel for the government, and Mr. 
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Speybroeck’s attorney presented evidence about the loss amount attributable to 

Mr. Speybroeck’s offense, and the court simply disagreed with Mr. Speybroeck’s 

personal valuation of that amount. 

III. ACCEPTANCE OF RESPONSIBILITY 

Finally, Mr. Speybroeck contends his counsel was ineffective for allowing 

him to not receive a third point for timely acceptance of the plea agreement. In 

paragraph 9(g) of the plea agreement, the parties made the following 

recommendations: 

The government agrees to recommend a two (2) level reduction for 

acceptance of responsibility pursuant to § 3 E1.1(a). The government 

further agrees to make a motion under § 3 E1.1(b) for an additional 

one (1) level reduction for acceptance of responsibility in the event 

defendant’s applicable offense level is found to be a level 16 or 

greater. 

(Doc. No. 2). The base offense level for unlawful possession or transportation of 

stolen merchandise was six. That level increased by six points for the loss 

amount and two points because the crime was committed through mass 

marketing. So, Mr. Speybroeck’s offense level was fourteen. As a result, upon 

recommendation by the government, and as outlined in the plea agreement, the 

court reduced Mr. Speybroeck’s offense level by two levels for his acceptance of 

responsibility. Under the Sentencing Guidelines, a third point for acceptance of 

responsibility is only available if the defendant’s offense level is sixteen or 

greater, U.S.S.G. § 3E1.1(b), and the plea agreement reflects this limitation. Mr. 

Speybroeck’s offense level was less than sixteen, so he wasn’t eligible for the 

third point. Had his offense level qualified him for a third point, the plea 
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agreement bound the government to recommend the three point reduction 

instead of two (provided Mr. Speybroeck didn’t violate the other terms of the 

provision). Contrary to Mr. Speybroeck’s contention, his attorney ensured that if 

he was eligible, he would have received the third point for acceptance of 

responsibility. 

IV. CONCLUSION

 The court DENIES the motion pursuant to 28 U.S.C. § 2255 (Doc. No. 24) 

and DENIES the motion requesting determination pursuant to Rule 4(b) (Doc. 

No. 25) as moot. 

SO ORDERED. 

 ENTERED: June 30, 2015 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court