G.R. SMITH, Magistrate Judge.
Mohammed Bah, proceeding pro se, moves under 28 U.S.C. § 2255 for a reduction in his sentence. He claims that his attorney's ineffectiveness resulted in an illegally enhanced sentence. Doc. 34.
On March 11, 2013, Bah went to a Swainsboro, Georgia Wal-Mart and tried to purchase electronics with fake gift cards imprinted with stolen credit card numbers. Doc. 38 at 39; Pre-sentence Investigation Report ("PSI") ¶ 4.
Bah pled guilty to possession of fifteen or more unauthorized credit card access devices pursuant to a plea agreement with the government. Does. 28, 32. The PSI set a base offense level of 6 under the Sentencing Guidelines. PSI ¶ 18. The amount of intended loss — calculated at $383,318.19 based on the total credit limit for the 53 card numbers in Bah's possession at the time of his arrest — increased that by twelve more levels. Id. at ¶ 6-9, 19. With other modifications, the PSI calculated his total offense level to be 22. Id. at 155.
Bah did not object in writing to the facts or Guidelines calculations in the PSI. See PSI Addendum ("The defendant has no objections to the [PSI]."); doc. 41 (transcript of sentencing hearing). The sentencing judge nevertheless asked whether Bah had any "disagreement or objection" to the PSI; Bah replied "No, sir." Doc. 41 at 6. The district judge adopted the PSI as written and sentenced Bah to 55 months' imprisonment. Id. at 6, 14. Consistent with the appeal waiver in his plea agreement, Bah did not appeal.
Bah complains that his counsel provided ineffective assistance by failing to file timely written objections to the PSI, failing "to cite case law in defense," and failing "to preserve or perfect" the loss calculation issue for appeal. Doc. 34 at 4. To address that argument, however, the Court first must look at his second claim — that the district court plainly erred in calculating the intended loss enhancement because Bah only used eighteen of the 53 card numbers found on his computer, id. at 5; doc. 43 at 2-4, for if it fails, then so too does claim one.
The Sentencing Guidelines recommend enhancing sentences in fraud cases based on the amount of loss, which they define as "the greater of actual loss or intended loss." U.S.S.G. § 2B1.1(b)(1) & cmt. 3(A). "`Intended loss' (I) means the pecuniary harm that was intended to result from the offense; and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur. . . ." Id. at cmt. 3(A) (ii). In cases like this, involving stolen credit cards, the credit limit of the stolen cards may be used to calculate the intended loss absent clear evidence that a defendant intended to steal only a lesser amount. See United States v. Nosrati-Shamloo, 255 F.3d 1290, 1291 (11th Cir. 2001) ("[O]nce a defendant has gained access to a certain credit line . . . a district court does not err in determining the amount of the intended loss as the total line of credit to which Defendant could have access, especially when Defendant presents no evidence that he did not intend to utilize all of the credit available on the cards."); see also United States v. Oates, 122 F.3d 222, 226 n. 5 (5th Cir. 1997) (fraudulent endorsement of a financial instrument demonstrates intent to gain access to the funds it represents and it is the "access to funds [that] is dispositive" in determining the amount of intended loss).
The only evidence presented at sentencing here showed that Bah intended to use all the stolen card numbers to their respective limits. When he was arrested at Wal-Mart, Bah's car — which was in the Wal-Mart parking lot — contained two computers with 53 card numbers, blank credit cards, and a machine that could imprint numbers on those cards. PSI ¶ 5, 7. Those items, and their proximity to Bah as he actually used the stolen card information to make illegal purchases, show ready access to all 53 cards and thus an intent to use them to the extent of their credit limits. See Nosrati-Shamloo, 255 F.3d at 1292 (defendant stole mail and applied for credit cards using the stolen information; court properly calculated intended loss as the total available credit on the stolen cards, even though government introduced no evidence showing that defendant maxed out any given card). By contrast, no evidence exists (because Bah introduced no evidence to the contrary) suggesting that Bah intended to use less than the full amount on each card. See id. at 1291.
Bah argues that he can only be held responsible for the eighteen cards he actually used and the $15,521.25 in charges he actually made. See doc. 7 at 4 ("The government provided a list of 53 individuals that were victims but . . . only 18 victims actually suffered losses."). But that ignores § 2131.1(b)(1)'s clear message that "loss" in this context means "the greater of actual loss or intended loss." Id. at cmt. 3(A) (emphasis added); see also Nosrati-Shamloo, 255 F.3d at 1291 ("If the intended loss due to the offense is greater than the loss actually caused, the court may use the amount of the intended loss for sentencing purposes."); United States v. Pemberton, 479 F. App'x 264, 269-70 (11th Cir. 2012) (district court did "not err in determining the amount of the intended loss as the total line of credit to which [the diefendant could have access"). Calculating the enhancement based on intended loss instead of the loss Bah actually caused thus did not violate § 2131.1(b)(1).
Bah also asserts that there was "no evidence that defendant intended to cause the amount of loss provided in the [PSI]." Doc. 35 at 3. That's just not true, if for no other reason than Bah possessed the stolen card numbers and presented no evidence suggesting he intended to use them for less than their full credit limits. See Nosrati-Shamloo, 255 F.3d at 1292; Pemberton, 479 F. App'x at 269-70 (intended loss properly calculated as credit limits of two fraudulently obtained cards simply because defendant had access to the cards). Bah not only possessed the card numbers, but his car, parked right outside the store where he used the fake gift cards, also had in it blank cards and a machine to imprint the numbers on the blanks. PSI ¶ 5. Again, mere possession of the stolen numbers — much less in such close proximity to Bah's commission of a crime using some of the numbers and with the physical ability to create more fake cards using the others — is evidence that he intended to max out the cards. See United States v. Edmondson, 349 F. App'x 511, 516-17 (11th Cir. 2009) (calculating intended loss using total line of credit acceptable "when the actual charges made against the cards were less, the evidence was circumstantial and unclear about whether defendant knew the actual credit limits on the cards, and when no evidence shows that Defendants intent was something other than to make use of the full line of credit"); United States v. Stetson, 202 F. App'x 449, 451 (11th Cir. 2006) (same).
Bah also claims that his attorney provided ineffective assistance by not objecting to the intended loss enhancement. To prevail on that claim he must establish two things: (1) "counsel's performance was deficient," meaning it "fell below an objective standard of reasonableness," and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To satisfy the deficient-performance prong, Bah must show that his attorney made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687.
Failing to make meritless arguments, like the one Bah makes about his intended loss enhancement, cannot be deficient performance. Again, Strickland requires that counsel make an error (and a serious one at that).
Moreover, as the government correctly notes (doc. 42 at 8), Bah offers no evidence that his attorney should have marshalled demonstrating that he intended to steal less than the full credit limits from the 53 stolen cards in his possession. The burden to put forward such proof was Bah's, not the government's. See Edmondson, 349 F. App'x at 517 ("Under Nosrati-Shamloo, it was Edmondson's burden to present some other type of evidence `that tended to show that [s]he did not intend to use all of the credit available on the cards. . . . Because she failed to present any such evidence, the district court did not clearly err in its intended loss calculation."). In the absence of that evidence Bah's counsel could not deficiently perform by refusing to make a baseless intended loss calculation argument.
Bah's § 2255 motion (doc. 34) should be
The cases Bah cites are not to the contrary. In United States v. Lopez, the defendant, unlike Bah, objected to the PSI's loss calculation and asserted that he should only be held responsible for the stolen cards in his possession at the time of arrest rather than card numbers found on a co-defendants computer. 549 F. App'x 909, 912-13 (11th Cir. 2013). Because the government offered no evidence tying Lopez to the co-defendant's cards, the court sustained the objection and vacated the intended loss enhancement. Id. Here, by contrast, not only did Bah fail to object, but, unlike Lopez, he possessed all 53 cards at the time of his arrest. PSI ¶ 5-8.
United States v. Diallo, a case with an arrest scenario remarkably similar to Bah's (just substitute Wegman's for Wal-Mart), reversed an intended loss calculation based on the total credit limit of all cards in the defendant's possession, but only because the district court, in the face of defendant's objection, made no factual findings as to whether he intended to use the total credit limit of the stolen cards. 710 F.3d 147, 152-53 (3d Cir. 2013). Diallo did not, however, hold that the facts alleged would not support the intended loss enhancement. Instead, it held only that when faced with a defendant's objection and evidence to the contrary, the government had to come forward with some proof of defendant's intent beyond mere possession of stolen card numbers. Nosrati-Shamloo implies the same. See 255 F.3d at 1291 (intended loss enhancements based on total credit limit not erroneous where "defendant presents no evidence that he did not intend to utilize all of the credit available on the cards").
