SUSAN RUSS WALKER, Magistrate Judge.
Before the court is petitioner Wendy Latrice Huff's pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. Doc. No. 1.
On March 5, 2015, Huff pled guilty to a felony information charging her with conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, and aggravated identity theft, in violation of 18 U.S.C. § 1028A.
In January 2017 Huff filed this § 2255 motion asserting that her counsel was ineffective for failing to (1) explain to her the nature of the mail-fraud conspiracy charge to which she pled, (2) explain to her why she was sentenced based on the same loss amount as her coconspirator James Battle, (3) request a "minor role" reduction at sentencing, and (4) request a lower sentence where her coconspirator Battle received the same sentence she received. Doc. No. 1 at 4.
The government filed a response arguing that all of Huff's claims are without merit. Doc. No. 4. Huff filed a reply to the government's response. Doc. No. 8. After considering the parties' submissions, the record, and the applicable law, the court finds that Huff's § 2255 motion should be denied without an evidentiary hearing. Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts.
Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner may secure relief under § 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). "Relief under 28 U.S.C. § 2255 `is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted).
A claim of ineffective assistance of counsel is evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 689. Second, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000).
Scrutiny of counsel's performance is "highly deferential," and the court indulges a "strong presumption" that counsel's performance was reasonable. Chandler, 218 F.3d at 1314 (internal quotation marks omitted). The court will "avoid second-guessing counsel's performance: It does not follow that any counsel who takes an approach [the court] would not have chosen is guilty of rendering ineffective assistance." Id. (internal quotation marks and brackets omitted). "Given the strong presumption in favor of competence, the petitioner's burden of persuasion—though the presumption is not insurmountable—is a heavy one." Id.
As noted, under the prejudice component of Strickland, a petitioner 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 694. A "reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) ("[A]n analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective."). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Id. at 372.
Unless a petitioner satisfies the showings required on both prongs of the Strickland inquiry, relief should be denied. Strickland, 466 U.S. at 687. Once a court decides that one of the required showings has not been made, it need not decide whether the other one has been. Id. at 697; Duren v. Hopper, 161 F.3d 655, 660 (11th Cir. 1998).
In conclusory fashion, Huff claims that her counsel was ineffective for failing to explain to her the nature of the mail-fraud conspiracy charge to which she pled guilty. Doc. No. 1 at 4. By this claim, Huff appears to contend that her guilty plea was not entered knowingly and intelligently.
The two-part standard of Strickland applies to ineffective-assistance claims arising out of the guilty plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985). Where a petitioner challenges the validity of his guilty plea based on the alleged ineffective assistance of counsel, the petitioner must establish that counsel's performance was deficient (i.e., was professionally unreasonable) and that counsel's deficient performance "affected the outcome of the plea process" (i.e., was prejudicial). Id. at 58-59. To establish prejudice in this context, a petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would ... have pleaded [not] guilty and would ... have insisted on going to trial."
In an affidavit addressing Huff's claim, Huff's former counsel states:
Doc. No. 3 at 1.
At Huff's change of plea hearing, the magistrate judge who took Huff's plea asked her if she had reviewed and discussed the plea agreement with her lawyer and if she understood the plea agreement. Doc. No. 4-3 at 4-5. Under oath, Huff answered in the affirmative. Id. at 5. Huff also affirmed she had fully discussed the charges against her, and the case in general, with her counsel and that she was satisfied with her counsel's representation and advice. Id. at 3. Huff further affirmed that, other than the plea agreement, no one had made any promises or assurances to her to get her to plead guilty and that the written plea agreement represented the entirety of any understanding she had with the government. Id. at 5-6. The magistrate judge advised Huff of the statutory maximum sentence for the two counts she was pleading guilty to, and also explained that her mandatory two-year sentence for aggravated identity theft would run consecutively to the sentence for the conspiracy count. Id. at 6-7. Huff stated that she understood this. Id. at 7. Huff also affirmed to the court that she and her lawyer had discussed how the advisory sentencing guidelines would apply in her case.
"[W]hen a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his statements were false." United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). "There is a strong presumption that the statements made during the [guilty plea] colloquy are true." United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Huff, who presents only the most cursory assertion regarding her counsel's failure to explain the mail-fraud conspiracy charge to her, fails to meet her burden to rebut her own sworn statements at the plea hearing that she understood the charges against her and the elements of the charged offenses, and that she had committed the acts forming the basis of those charges. Further, in her § 2255 motion, Huff does not say she would have insisted on going to trial had her counsel better explained the mail-fraud conspiracy charge, but instead appears to argue only that counsel should have obtained a lower sentence for her. See Doc. No. 1 at 4. Huff does not show how counsel's allegedly deficient performance in explaining the charges to her resulted in her receiving a sentence greater than the sentence she otherwise would have received. Thus, she demonstrates no prejudice. See Hill, 474 U.S. at 59. Huff is not entitled to § 2255 relief on this claim of ineffective assistance of counsel.
Huff claims that her counsel was ineffective for failing to explain to her why she was sentenced based on the same loss amount as her coconspirator James Battle. Doc. No. 1 at 4.
When pleading guilty, Huff admitted that she stole the personal identification information of hundreds of individuals from her employers and provided that information to Battle so he could use it to file hundreds of fraudulent tax returns claiming a total of $441,482 in refunds. Doc. No. 4-3 at 14-15. Huff also admitted to these actions in the written plea agreement, where she admitted to the $441,482 loss amount. Doc. No. 9 at 3 & 7-9. Consistent with Huff's admissions, Huff's presentence investigation report ("PSI") found that the loss amount attributable to her was $441,482, which resulted in her receiving a 12-level specific offense characteristic enhancement under U.S.S.G. § 2B1.1(b)(1).
A court may hold participants in a conspiracy responsible for the losses resulting from the reasonably foreseeable acts of coconspirators in furtherance of the conspiracy. United States v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010). Here, Battle's use of the personal identification information provided to him by Huff to file fraudulent tax returns claiming a total of $441,482 was reasonably foreseeable to Huff, and the plea agreement plainly stated that Huff would receive a 12-level enhancement based on this loss amount. See Doc. No. 9 at 3. As noted above, Huff acknowledged that she understood the terms of the plea agreement in pleading guilty.
Huff fails to meet her burden to rebut her own sworn statements at the plea hearing that she understood the plea agreement setting forth the loss amount attributable to her. See Medlock, 12 F.3d at 187. Moreover, Huff makes no claim in her § 2255 motion that she would have insisted on going to trial had her counsel explained to her why she was sentenced based on the same loss amount as Battle. See Doc. No. 1 at 4. Therefore, she demonstrates no prejudice from counsel's allegedly deficient performance. See Hill, 474 U.S. at 59. Huff merely presents a hindsight argument that she considers it unfair that she was sentenced based on the same loss amount attributed to Battle, a loss amount she agreed to when pleading guilty and which was validated by her own admissions. Huff is entitled to no relief on this claim of ineffective assistance of counsel.
Huff claims that her counsel rendered ineffective assistance by failing to request a "minor role" reduction at sentencing. Doc. 1 at 4.
Section 3B1.2(b) of the Sentencing Guidelines provides that a defendant's offense level should be decreased by two levels "[i]f the defendant was a minor participant in any criminal activity." U.S.S.G. § 3B1.2(b). For purposes of § 3B1.2(b), a minor participant in the criminal activity is one who is less culpable than most other participants, but whose role could not be described as minimal. U.S.S.G. § 3B1.2, cmnt. n.5.
In determining whether to apply the role reduction, the sentencing court should consider the following non-exhaustive list of factors:
U.S.S.G. § 3B1.2, cmnt. n.3(C).
In United States v. Cruickshank, 721 F. App'x 909 (11th Cir. 2018), the Eleventh Circuit stated:
721 F. App'x at 911-12.
Huff must show by a preponderance of the evidence that she was a minor participant in the conspiracy. See United States v. De Varon, 175 F.3d 930, 939 (11th Cir. 1999). She points to no evidence to support such a conclusion. Instead, the evidence indicated she was an essential cog in the conspiracy who stole the personal identification information of hundreds of individuals and provided that information to her coconspirator Battle. She also had several prepaid debit cards with fraudulent refunds sent to her residence, and she cashed fraudulent tax refund checks. See Doc. No. 4-4 at 5, ¶ 8. Huff fails to show that she was a minor participant in the conspiracy. Therefore, she cannot establish that her counsel was ineffective for failing to argue she should receive a "minor role" reduction.
Huff claims that her counsel was ineffective for failing to request a lower sentence where, she says, her coconspirator Battle received the same sentence she received. Doc. No. 1 at 4. This claim entitles Huff to no relief. Battle was sentenced several months after Huff. Therefore, Huff's counsel could make no comparison of their sentences at the time of Huff's sentencing. Moreover, Huff and Battle did not receive the same sentence. Huff was sentenced to 48 months' imprisonment. Battle was sentenced to 61 months' imprisonment. See Doc. No. 4-8. Huff's claim here has no basis in fact.
In her reply to the government's response to her § 2255 motion, Huff asserts that her counsel was ineffective for failing to argue that Application Note 2 to U.S.S.G. § 2B1.6 precluded imposition of a two-level sentence enhancement she received under U.S.S.G. § 3B1.3 for abusing a position of trust in the commission of her offense. Doc. No. 8 at 4-5.
Section § 3B1.3 of the Sentencing Guidelines provides in pertinent part:
U.S.S.G. § 3B1.3. Huff's PSI, which was adopted by the district court, found that the § 3B1.3 abuse-of-trust enhancement applied to Huff because she "abused the authority of her position as a branch manager at Alabama Title Loans, Inc. and as a store manager at Approved Cash Advance to obtain and use without authority the means of identification of numerous customers." Doc. No. 4-4 at 7, ¶ 19.
Section 2B1.6 of the Sentencing Guidelines provides that the sentence for a defendant convicted of aggravated identity theft is the statutory term of imprisonment. U.S.S.G. § 2B1.6. Application Note 2 to § 2B1.6 elaborates:
U.S.S.G. § 2B1.6, cmnt. n.2. "Means of identification" is defined as "any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any ... (A) name, social security number, [or] date of birth... ." 18 U.S.C. § 1028(d)(7)(A).
The Eleventh Circuit has held that Application Note 2 precludes the application of additional enhancements only if those enhancements pertain specifically to the "transfer, possession, or use of a means of identification." See United States v. Cruz, 713 F.3d 600, 607-08 (11th Cir. 2013) (affirming application of § 2B1.1(b)(10)(A)(i) use-of-device-making-equipment enhancements, which did not concern the use of a means of identification, to the base offense levels associated with § 1028A, since the plain language of Application Note 2 did not bar the application of all "relevant conduct" enhancements); United States v. Charles, 757 F.3d 1222, 1227 (11th Cir. 2014) (reversing the application of a § 2B1.1(b)(11)(B)(i) trafficking-of-an-unauthorized-access-device enhancement to a defendant also convicted under 18 U.S.C. § 1028A).
Application Note 2 to § 2B1.6 does not preclude imposition of a § 3B1.3 abuse-of-trust enhancement. First, this application note concerns only specific offense characteristic enhancements set out in § 2B1 of the Sentencing Guidelines. The § 3B1.3 abuse-of-trust enhancement is a "role enhancement" set out in § 3B1 of the guidelines. Thus, on its face, Application Note 2 to § 2B1.6 does not apply to enhancements under § 3B1.3. Huff's claim therefore has no merit. Moreover, the § 3B1.3 enhancement does not pertain specifically to the "transfer, possession, or use of a means of identification" and is instead predicated only on the defendant's abuse of a position of trust. See, e.g., United States v. Davis, 586 F. App'x 534, 539 (11th Cir. 2014); United States v. Anderson, 532 F. App'x 373, 378-79 (4th Cir. 2013). Huff's counsel was not ineffective for failing to argue that Application Note 2 to § 2B1.6 precluded imposition of the § 3B1.3 abuse-of-trust enhancement. Such an argument would have been meritless.
For the reasons set out above, it is the RECOMMENDATION of the Magistrate Judge that the 28 U.S.C. § 2255 motion filed by Huff be DENIED and this case DISMISSED with prejudice.
It is further
ORDERED that the parties shall file any objections to this Recommendation or before April 16, 2019. A party must specifically identify the factual findings and legal conclusions in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's findings and recommendations under the provisions of 28 U.S.C. § 636(b)(1) will bar a party from a de novo determination by the District Court of legal and factual issues covered in the Recommendation and waives the right of the party to challenge on appeal the District Court's order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); 11th Cir. R. 3-1. See Stein v. Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).
