United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
August 25, 2015, this Court sentenced Aquilla Terrell
Randolph (“Randolph”) to sixty-eight months'
imprisonment after he pleaded guilty to the crimes of
conspiracy and aggravated identify theft. Randolph, who is
currently incarcerated at the Federal Prison Camp in Atlanta,
Georgia, filed a Motion to Vacate, Set Aside, or Correct his
Sentence pursuant to 28 U.S.C. § 2255. (Doc.
117.) Randolph contends that various errors by
his trial counsel plagued his guilty plea and sentence. As
laid out below, Randolph's far-reaching claims lack
merit. Randolph's conviction and sentence resulted from
his own admitted criminal conduct, not any errors by his
counsel. Thus, for the reasons which follow, I
RECOMMEND the Court DENY
Randolph's Motion to Vacate, Set Aside, or Correct his
Sentence. Further, I RECOMMEND that the
Court DENY Randolph a Certificate of
Appealability and in forma pauperis status on
appeal. The Court should DIRECT the Clerk of
Court to CLOSE this case and enter the
appropriate judgment of dismissal.
November 6, 2014, the grand jury for this District returned a
thirty-count Indictment against Randolph. (Doc. 1.) The
Indictment arose out of a scheme to create and submit false
tax returns in order to obtain fraudulent refunds.
(Id.) The grand jury charged Randolph with wire
fraud in violation of 18 U.S.C. § 1343 (Counts One
through Ten); False Claims in violation of 18 U.S.C. §
287 (Counts Eleven through Twenty); and Aggravated Identify
Theft in violation of 18 U.S.C. § 1028A(a)(1) (Counts
Twenty-One through Thirty). (Id.) The Government
asserted in its Penalty Certification that Randolph faced not
more than twenty years' imprisonment as to each of Counts
One through Ten; not more than five years' imprisonment
as to each of Counts Eleven through Twenty; and two
years' consecutive imprisonment as to each of Counts
Twenty-One through Thirty. (Doc. 2.)
March 4, 2015, the grand jury returned a Superseding
Indictment against Randolph and codefendant Edward C.
Jennings. (Doc. 43.) The Superseding Indictment charged
Randolph and Jennings with a conspiracy to commit wire fraud,
theft of public funds, and aggravated identify theft in
violation of 18 U.S.C. § 371, (Count One).
(Id.) The grand jury also alleged that Randolph
committed the crimes of wire fraud (Counts Two through
Eleven); aggravated identify theft (Counts Twelve through
Twenty-One and Counts Thirty-Two through Forty-One); and
theft of public money (Counts Twenty-Two through Thirty-One).
(Id.) The Penalty Certification as to the
Superseding Indictment stated that Randolph faced not more
than five years' imprisonment as to the conspiracy
charge; not more than twenty years' imprisonment as to
each of the wire fraud charges; not more than ten years'
imprisonment as to each of the theft of public money charges;
and two years' consecutive imprisonment as to each of the
aggravated identify theft charges. (Doc. 44.)
Court placed Randolph on pretrial release at the beginning of
the case, and he remained on pretrial release following the
Superseding Indictment. (Doc. 13.) The Court ordered that
while Randolph was on pretrial release he “must not
violate federal, state, or local law” and that he
“shall not maintain any position of trust or position
with access to personal identifiers” and “may not
prepare any tax returns or act as a tax advisor.”
(Id. at pp. 1-2.) The Government filed a Motion for
Revocation of Randolph's Bond alleging that Randolph
violated these conditions. (Doc. 67.) On April 7, 2015, the
Court held a hearing on that Motion and found that Randolph
had indeed violated the terms of his pretrial release. (Doc.
70.) In its April 9, 2015 Order granting the Government's
Motion for Revocation, the Court stated:
At the hearing on the instant Motion, the Government
presented several witnesses who provided clear and convincing
evidence that Defendant had violated the terms of his
release. (See generally Doc. 70.) These witnesses
detailed that Defendant had continued to operate a tax
preparation business after his release on bond. Several
witnesses testified that they had given Defendant their
financial records with personal-identifying information in
the calendar year 2015 to prepare tax returns for income they
had earned in 2014. These witnesses testified that they had
paid Defendant for tax preparation services and that
Defendant had provided such services and given the
individuals tax preparation advice. At least one witness
testified that Defendant had included false information on
the witness's tax return, including information regarding
itemized deductions that had no factual basis.
(Doc. 73, p. 2.) The Court held that Randolph “not only
failed to abide by the Order Setting the Conditions of
Release, he willfully and repeatedly violated that Order.
Defendant's blatant disregard for the conditions of his
release cannot be excused or explained away.”
(Id. at p. 3.)
Randolph and his appointed attorney, Mr. Joseph L. Phelps,
III, were able to negotiate a plea agreement with the
Government whereby Randolph agreed to plead guilty to Counts
One and Thirty-Two of the Indictment. (Doc. 88.) He also
agreed to waive his rights to appeal and collaterally attack
his sentence with limited exceptions. (Id. at p. 7.)
In exchange, the Government agreed to dismiss the remaining
counts of the Indictment. (Id.) The plea agreement
laid out Randolph's offense conduct and the factual basis
for his guilty plea. (Id. at pp. 1-4.) Randolph and
the Government agreed that the amount of loss for purposes of
Randolph's Guidelines calculation was greater than $200,
000 but less than $400, 000. (Id. at p. 6.) Through
the plea agreement, Randolph agreed that he “has had
the benefit of legal counsel in negotiating this agreement.
Defendant believes that his attorney has represented him
faithfully, skillfully, and diligently, and he is completely
satisfied with the legal advice given and the work performed
by his attorney.” (Id. at p. 9.)
April 28, 2015, Randolph appeared before the Honorable Lisa
Godbey Wood for a change of plea, or Rule 11, proceeding.
(Doc. 114.) At the hearing, Judge Wood engaged in an
extensive plea colloquy with Randolph. She explained to
Randolph that the decision to plead guilty was an important
one, that the decision was entirely his decision, and that
she wanted to be certain that Randolph understood all of the
important considerations that go into the decision.
(Id. at pp. 2-3.) Judge Wood inquired whether anyone
was making, forcing, or leaning on Randolph to plead guilty,
and he said no one had done so and that pleading guilty was
what he wanted to do. (Id. at p. 3.)
Wood had Randolph placed under oath before asking him a
series of questions. (Id.) He was able to recount
his personal information, including his age, the ages of his
children, and his residence. (Id. at p. 4.) Randolph
testified that he obtained his high school diploma.
(Id. at pp. 4-5.) Randolph recounted his employment
history including working as a general manager, supervisor,
and corporate trainer for a restaurant chain, opening his own
fish market, and operating a tax preparation business.
(Id. at p. 5.) Randolph stated that his only
physical or mental injury or disability was a back condition
and that the medication he took for that condition did not
interfere with his ability to communicate and strategize with
his attorney or participate in the hearing. (Id. at
Wood explained to Randolph that he was presumed innocent and
the Indictment was not evidence of his guilt. (Id.
at pp. 6-7.) She also explained that he did not have to plead
guilty and that he had the right to maintain a plea of not
guilty. (Id. at p. 7.) Judge Wood further advised
Randolph that if he chose to persist in his not guilty plea,
he would have the right to a public and speedy trial by jury,
a presumption of innocence during that trial, and the
assistance of counsel through every phase of the case.
(Id. at pp. 7-8.) Judge Wood told Randolph that if
he went to trial he could see, hear, confront, and
cross-examine the Government's witnesses and evidence,
call witnesses on his behalf, and testify himself or remain
silent. (Id.) Judge Wood cautioned Randolph he would
be waiving these rights if he pleaded guilty. (Id.
at pp. 8-9.) She explained that, if she accepted his guilty
plea, there would be no right to trial of any kind, and that
all that would remain of his case would be the sentencing
phase. (Id.) Randolph stated that he understood and
that he had no questions regarding the waiver of his rights.
(Id. at p. 9.) He volunteered, “my attorney
went over that with me.” (Id.)
also stated he and Mr. Phelps reviewed the Indictment
together; that he had the opportunity to talk to Mr. Phelps
about the facts and law of his case; and that he and Mr.
Phelps had discussed the proposed plea agreement.
(Id.) Randolph testified that he was satisfied with
Mr. Phelps' representation and that he had no complaints
about Mr. Phelps whatsoever. (Id. at pp. 9-10.)
Wood reviewed Counts One and Thirty-Two of the Indictment
with Randolph and discussed the essential elements of the
crimes for which he was charged and what the Government would
have to prove if he went to trial. (Id. at pp.
10-13.) Randolph responded that he understood what he was
charged with, what the elements of the offenses were, and
what the Government would have to prove if he went to trial.
(Id.) He understood that by pleading guilty he would
admit that the elements are satisfied. (Id. at p.
13.) Judge Wood advised Randolph of the penalties she could
impose on the Counts to which he was pleading guilty.
(Id. at pp. 13-14.) She specifically explained that
Count Thirty-Two carries a mandatory minimum of two
years' imprisonment consecutive to any sentence on Count
One. Randolph responded that he understood. (Id. at
p. 14.) Moreover, Judge Wood explained to Randolph that, in
imposing a sentence upon him, she would have to take into
consideration the advisory Sentencing Guidelines and the
factors set forth in 18 U.S.C. § 3553, and she outlined
the factors she would consider at sentencing. (Id.
at p. 15.) Judge Wood asked Randolph if he had any questions
about sentencing, and he responded that he did not.
(Id.) Randolph testified that no one had promised
him an exact sentence. (Id. at p. 16.) Judge Wood
explained that all that anyone could give him is a
“best guess” or “estimate” of what
his Guidelines' range would be, and that such an estimate
would in no way bind the Court. (Id.)
Wood affirmed with Randolph that he had given Mr. Phelps
permission to negotiate a plea agreement with the Government.
(Id.) She then asked the Assistant United States
Attorney (“AUSA”) to summarize the provisions of
the plea agreement. AUSA Shane Mayes stated:
In summary, the plea agreement provides that upon Mr.
Randolph pleading guilty to Counts 1 and 32 of the
indictment, the Government will move to dismiss the remaining
counts of the indictment.
In doing so, Mr. Randolph admits the accuracy of the factual
basis as stated on Page 2 through 4 -- Pages 2 through 4 of
the plea agreement. The Government and Mr. Randolph agree to
recommend to the U.S. Probation Office and The Court at
sentencing that for purposes of Section 2B1.1 of the
sentencing guidelines the amount of loss is greater than 200,
000.00 but less than 400, 000.00.
Mr. Randolph agrees to pay restitution for the full loss
caused by his total criminal conduct which is not limited to
the specific counts to which he is pleading guilty.
At sentencing, as stated earlier, the Government will move to
dismiss any other counts of the indictment. Defendant waives
all rights to request information pursuant to the Freedom of
Information Act or the Privacy Act.
Defendant waives the protection of Rule 11(f) of the Federal
Rules of Criminal Procedure or Rule 14 of the Federal Rules
If Mr. Randolph fails to plead guilty or later withdraws his
guilty plea, all statements made by him in connection with
the plea and any leads derived therefrom shall be admissible
for any and all purposes.
Your Honor, the plea agreement contains the Government's
standard appellate waivers and those appear on Page 7 . . . .
(Id. at pp. 17-18.) AUSA Mayes then confirmed with
Randolph that his signature was on the plea agreement
presented by the Government. (Id. at p. 18.) Judge
Wood asked Randolph if AUSA Mayes's summarization of the
plea agreement was consistent with the plea agreement he
signed, and Randolph stated it was. (Id. at p. 19.)
Randolph also stated he read the plea agreement, and Mr.
Phelps answered any questions Randolph had before Randolph
signed the agreement. (Id.) Randolph reaffirmed that
no one had made him any promises regarding the outcome of his
case other than the provisions contained in the plea
Wood then specifically addressed the direct appeal waiver
with Randolph, stating the following:
I want to follow up on something that Mr. Mayes mentioned and
that is as a part of this plea agreement that you're
urging, it does contain a waiver of certain appellate rights.
It states “Defendant entirely waives his right to a
direct appeal of his conviction and sentence on any
ground.” There are, however, three exceptions to that
waiver of your appellate rights. That is, you are allowed to
directly appeal only if one of these three things were to
Number 1, if I were to sentence you above the statutory
maximum, then you would be able to appeal that directly.
Number 2, if I were to sentence you above the advisory
guideline range as found by me, then you could appeal that
directly, or Number 3, if the Government were to file a
direct appeal, then you, too, could file one.
But other than those three occurrences, by virtue of this
plea agreement, you waive all other direct appellate rights;
do you understand?
(Id. at pp. 19-20.) Randolph stated he understood
the appeal waiver provision. (Id. at p. 20.)
Wood also explained that the proposed plea agreement
contained a waiver of certain of Randolph's collateral
attack rights. She explained:
The agreement also contains a waiver of your collateral
attack rights. It states “Defendant entirely waives his
right to collaterally attack his conviction and sentence on
any ground and by method including but not limited to a 28
USC Section 2255 motion, ” and the only exception to
that waiver is that you do retain the right to collaterally
attack based on ineffective assistance of counsel. Do you
(Id.) Randolph replied that he understood the
collateral attack waiver provision and that he did not have
any questions about the waivers. (Id.)
Wood asked Mr. Phelps and AUSA Mayes whether they were aware
of any impropriety on the part of the Government in handling
Randolph's case, and they both responded in the negative.
(Id.) Judge Wood then asked Randolph whether he
wished to still plead guilty to Counts One and Thirty-Two of
the Indictment because he was in fact guilty of those Counts,
and Randolph answered in the affirmative. (Id. at p.
21.) Judge Wood also asked Randolph whether he understood the
rights and privileges he was waiving if she accepted his
plea, and he said he did. (Id.)
Wood observed that, “[i]t's obvious that [Randolph
is] in full possession of all his faculties. He's
participated knowingly and intelligently today.”
(Id.) She further stated, “[h]e has had the
services of a very good defense attorney who has gone over
all the requisite documentation with him. They have discussed
the facts and the law. He's pleased with his defense
attorney thus far.” (Id.) Judge Wood
determined that Randolph offered to plead guilty
“knowingly and voluntarily.” (Id. at p.
22.) Randolph responded in agreement with Judge Wood's
Edward Dulin, a special agent with the Internal Revenue
Service's (“IRS”) Criminal Division, provided
the Government's factual basis for the plea.
(Id. at pp. 22-24.) Dulin testified that the IRS
received information that Randolph was preparing fraudulent
tax returns using stolen identities. (Id. at p. 23.)
The resulting investigation revealed that for approximately
two years Randolph and others were carrying out an
“illegal tax fraud scheme” in Wayne County,
Georgia. (Id.) Agent Dulin testified that Randolph
unlawfully obtained other individuals' identifications,
used those identifications to submit fraudulent tax returns,
and then cashed the refund checks that resulted from the
fraudulent returns. (Id.) Dulin detailed the
criminal conduct forming the basis of Count Thirty-Two of the
Superseding Indictment, a fraudulent tax return in the name
of Zach Spaulding. (Id. at pp. 23-24.) In 2011, Mr.
Spaulding's stolen identifying information was used to
submit a fraudulent tax return from an IP address registered
to Mr. Randolph. (Id.) Mr. Randolph and another
individual cashed the tax refund check at a store in Jesup,
Georgia, by falsely representing that ...