United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE.
Dentavia Khiry McNair filed a motion under 28 U.S.C. §
2255 to vacate, set aside, or correct his sentence. The Court
REPORTS and RECOMMENDS the § 2255 motion be DENIED, this
civil action be CLOSED, and a final judgment be ENTERED in
favor of Respondent.
January 11, 2013, the grand jury in the Southern District of
Georgia charged Petitioner and his codefendants in a
one-hundred-forty-six-count indictment. United States v.
McNair, CR 113-010, doc. no. 3 (S.D. Ga. Jan. 11, 2013)
(hereinafter “CR 113-010”). Petitioner was
charged with one count of conspiring to defraud the
government with respect to claims involving fraudulent tax
returns, thirteen counts of theft of public money, seven
counts of misuse of health identifiers, and seven counts of
aggravated identity theft. Id. The conspiracy, the
theft of public money, and misuse of health identifier
charges carried a maximum term of ten years imprisonment for
each count, and the aggravated identity theft charges carried
a sentence of two years of imprisonment consecutive to any
sentence for the predicate felony offense. CR 113-010, doc.
no. 4. The Court appointed Danny L. Durham to represent
Petitioner as trial counsel. Id., doc. no. 155.
Agreement to Plead Guilty
21, 2013, Petitioner pleaded guilty to one count of
conspiracy, two counts of misuse of health identifiers, and
one count of aggravated identity theft. Id., doc.
nos. 271-273. In exchange for the guilty plea, the government
agreed to (1) dismiss the remaining counts of the indictment;
(2) not object to a recommendation from the probation office
for a two-point acceptance of responsibility reduction; (3)
move for an additional one-point reduction under the
Sentencing Guidelines if Petitioner qualified for the
two-point decrease for acceptance of responsibility,
providing Petitioner had not engaged in criminal conduct
subsequent to arrest or initial appearance in this matter;
and (4) consider filing a motion, based on any
“substantial assistance” provided by Petitioner,
for downward departure under U.S.S.G. § 5K1.1 or
requesting a reduction of Petitioner's sentence under
Fed. R. Crim. P. 35. Id., doc. no. 273, pp. 1-3.
plea agreement contained the following factual basis for his
Between 2009 and 2011, . . . Dentavia McNair . . . did
receive United States Currency from refunds from the United
States Treasury based on tax returns that contained one or
more false statements. Between 2009 and 2011, the Defendants
filed 90 fraudulent, false, or fictitious tax returns
totaling over $500, 000 in false, fictitious, or fraudulent
claims. . . . [B]eginning on or about January 1, 2009 and
continuing until the return of this indictment, in the
Southern District of Georgia, the defendant Dentavia McNair
did combine, conspire, confederate, and agreed together with
others known and unknown, to knowingly and intentionally
defraud the United State[s] Department of Treasury by
obtaining and attempting to obtain payment of false claims .
. . . [O]n [April 28, 2011, and July 7, 2011], in Richmond
County, in the Southern District of Georgia, and elsewhere,
the defendant, Dentavia McNair knowingly and for a reason
other than permitted by Title 42, United States Code, Chapter
7, Subchapter XI, Part C, used and caused to be used,
individually identifiable health information for personal
gain. Specifically, the defendant(s) did obtain individually
identifiable health information relating to individuals, that
is, patients' names, dates of birth, and Social Security
numbers, which had been collected by a health care providers
[sic], with the intent to use said information for personal
gain for themselves and other co-defendants, in that the
health information was used to file fraudulent tax returns,
which resulted in tax refunds to which the defendant(s) were
not entitled. . . . [O]n or about [April 28, 2011], in
Richmond County, in the Southern District of Georgia,
Dentavia McNair, aided and abetted by others, did knowingly
transfer, possess and use, without lawful authority, means of
identification of other persons, that is names and social
security numbers, during and in relation to Theft of Public
Money, a federal violation of Federal law pursuant to 18
U.S.C. 641, as charged in this indictment.
Id. at 5-8.
plea agreement also contained an appeal and collateral attack
waiver, as follows:
To the maximum extent permitted by federal law, the defendant
voluntarily and expressly waives the right to appeal the
conviction and sentence and the right to collaterally attack
the conviction and sentence in any post-conviction
proceeding, including a § 2255 proceeding, on any
ground, except that: the defendant may file a direct appeal
of his sentence if it exceeds the statutory maximum; and the
defendant may file a direct appeal of his sentence if by
variance or upward departure, the sentence is higher than the
advisory sentencing guideline range as found by the
Id. at 4-5.
attested he read the plea agreement, understood what it said
and meant, and it accurately set forth the terms and
conditions of the agreement as negotiated by his attorney on
his behalf and with his permission. Id. at 14.
Change of Plea Hearing
the change of plea hearing, Chief United States District
Judge J. Randal Hall established Petitioner's competence
to enter a guilty plea if he so desired. Id., doc.
no. 413, p. 30. Petitioner testified under oath he had enough
time to discuss his case with Mr. Durham and was satisfied
with counsel's assistance. Id. at 10-11. Judge
Hall reviewed the charges to which Petitioner was pleading
guilty and the potential prison terms. Id. at 6-9,
Hall explained the rights Petitioner would be waiving by
pleading guilty, and Petitioner affirmed he clearly
understood those rights. Among the list of rights explained,
Judge Hall reviewed the right to trial by jury, the
presumption of innocence, the government's burden to
prove guilt beyond a reasonable doubt, the right to present
and cross-examine witnesses, and the right to remain silent.
Id. at 11-12. In addition, Judge Hall reviewed the
appeal and collateral attack waivers and their limited
exceptions and confirmed that, other than the promises the
government made in the plea agreement, no one had made
Petitioner any promises in order to get him to plead guilty.
Id. at 14-15.
Judge Hall heard a factual basis for the guilty plea from IRS
Agent Roger Garland. Id. at 21-16. Agent Garland
testified the investigation began when Richmond County
Sheriff's Office Investigator Mike Lanham received a
telephone call from Georgia Bank and Trust
(“GB&T”) officials informing him a bank
account in Petitioner's name was receiving
“unrelated third-party tax refunds, ” which was
unusual. Id. at 21. GB&T could not find a
connection between the named recipients and Petitioner.
Id. Inv. Lanham contacted FBI Special Agent Paul
Kubala and Agent Garland with the information, and the agents
contacted co-defendant Cheryl Willingham, who was one of the
named recipients. Id. at 21-22. Ms. Willingham
informed the agents Petitioner was living with his mother,
Janice Smalley, who stole identifying information from
patients at MCG Hospital, her place of employment.
Id. at 22. Cheryl Willingham is co-defendant Angela
Willingham's daughter, and she explained her mother is
the sister of co-defendant Janice Smalley, Petitioner's
mother. Id. The agents obtained tax returns for the
refunds entered into Petitioner's account and discovered
the same scheme was used for all of them; namely, false W-2Gs
from the Georgia Lottery Corporation with overstated federal
withholdings, causing a refund. Id. at 23. The
agents contacted the Georgia Lottery Corporation with a list
of names and Social Security No. involved, and Georgia
Lottery confirmed the W-2Gs were not legitimate. Id.
at 23-24. Thirteen fraudulent refunds were deposited in
Petitioner's GB&T and SRP Federal Credit Union
(“SRP”) bank accounts. Id. at 24. All
refunds deposited in the GB&T account and one deposited
in the SRP account were from fraudulent tax returns in the
names of MCG patients. Id. Petitioner received
approximately $37, 000 in his GB&T account and $20, 000
in his SRP account from the tax returns. Id. Some of
the returns were divided, causing portions of refunds to be
deposited into accounts belonging to co-defendants.
Id. at 24-25.
told Judge Hall he had no disagreement with anything Agent
Garland recounted but then stated the “only thing [he
did] was withdraw money from legal funds.” Id.
at 26-27. Upon further questioning, however, Petitioner
admitted he knew what his codefendants were doing was
illegal, understood they stole money from the government by
obtaining fraudulent refunds, used the personal information
of others for his own personal gain, and did so in connection
with theft of public funds. Id. at 27-29. Petitioner
testified he was guilty of, and wanted to plead guilty to,
Counts One, Ninety-three, Ninety-six, and 122 of the
indictment, which charged him with one count of conspiracy,
two counts of misuse of health identifiers, and one count of
aggravated identity theft. Id. at 22. Judge Hall
accepted the guilty plea, finding a sound factual basis for
it, and found Petitioner's decision to plead guilty was
voluntary, knowing, and not the result of force, pressure,
threats, or promises. Id. at 30-31.
Presentence Investigation Report (PSI)
described Petitioner's conduct while awaiting sentencing
as it related to a potential adjustment for acceptance of
responsibility. PSI ¶¶ 15-21. On April 20, 2013,
Petitioner was incarcerated at Lincoln County Jail
(“LCJ”), and LCJ Corporal Reid filed a
disciplinary report against Petitioner for inappropriate
behavior and threats against staff. PSI ¶ 15.
Specifically, Corporal Reid and other deputies escorted
Petitioner to a holding cell after he was observed standing
in the corner of a common room masturbating and looking into
the control booth. Id. Approximately twenty minutes
later, officers escorted Petitioner from the holding cell to
an isolation cell after he was observed removing his clothing
and masturbating in front of another inmate and LCJ Deputy
Gartrell. Id. Once in the isolation cell, Petitioner
threatened to throw his urine at Corporal Reid. Id.
April 22, 2013, Petitioner began to throw items out of the
access portal in the door of his cell and attempted to
prevent deputies from closing the portal. PSI ¶ 16.
Petitioner placed his shirt over the camera inside his cell
and began to curse and act aggressively toward the deputies.
Id. On May 29, 2013, a nurse complained that, after
she directed Petitioner to swallow medication, he told her
twice “‘I have something for you to swallow,
'” while gesturing with his hands inside his pants.
PSI ¶ 17.
17, 2013, Petitioner was involved in an altercation with
another inmate, which occurred after the inmate told
Petitioner he did not want to see Petitioner “play with
himself” in the common room. PSI ¶ 18. On July 2,
2013, a deputy observed Petitioner sitting on his bed
masturbating during an inmate count. PSI ¶ 19. Later
that day, Petitioner was transferred to McDuffie County Jail
after he told a female staff member he would find out where
she lives after he was released and “rape the fucking
shit out of her.” PSI ¶ 20. The PSI states these
actions show Petitioner failed to withdraw from criminal
activities and, thus, does not appear to have accepted
responsibility for his actions. PSI ¶ 21.
set Petitioner's base offense level for Count One at six,
pursuant to U.S.S.G. § 2B1.1(a)(2), and Petitioner's
base offense level for Counts Ninety-three and Ninety-six at
six, pursuant to U.S.S.G. § 2B1.1(a)(2). PSI
¶¶ 24, 36. Petitioner's offense level for Count
One increased to twenty after enhancements for: (1) a loss
amount of $83, 670; (2) the involvement of fourteen victims;
(3) the use of sophisticated means; namely, using multiple
bank accounts to deposit fraudulent income tax returns,
monitoring the returns electronically, and withdrawing the
proceeds immediately upon deposit; and (4) actual or
constructive knowledge the victim was vulnerable, as she was
a hospital patient, suffered from dementia, and was confined
to a nursing home. PSI ¶¶ 25-28. Petitioner's
offense level for Counts Ninety-three and Ninety-six
increased to sixteen after enhancements for: (1) an intended
loss of $39, 981; and (2) actual or constructive knowledge
the victim was vulnerable, as she was a hospital patient,
suffered from dementia, and was confined to a nursing home.
PSI ¶¶ 34-35. Because the adjusted offense level
from Count One resulted in the higher offense level,
Petitioner's combined adjusted offense level was twenty.
PSI ¶ 38. For the reasons set forth above, the PSI did
not recommend an acceptance of responsibility reduction,
resulting in a total offense level of twenty. PSI
received a criminal history score of thirteen pursuant to
U.S.S.G. § 4A1.1 based on: (1) a 2006 conviction for
theft by taking of a motor vehicle; (2) a 2007 conviction for
obstruction of a law enforcement officer; (3) a 2009
conviction for theft by taking; (4) 2012 convictions for
theft by receiving stolen property, fleeing or attempting to
elude a police officer, and interference with government
property; and (5) committing the instant offense while under
a criminal justice sentence. PSI ¶¶ 43-49.
Accordingly, Petitioner's criminal history score of
thirteen established a criminal history category of VI. PSI
¶ 49. Based on a total offense level of twenty and a
criminal history category of VI, Petitioner's guideline
imprisonment range was 70 to 87 months, and the guideline
sentence for Count 122 was twenty-four months, the minimum
term of imprisonment required by the statute, to be served
consecutively. PSI ¶ 67.
counsel, Petitioner objected to the PSI. See PSI Addendum.
Petitioner admitted to the conduct alleged in paragraphs
fifteen, sixteen, seventeen, and nineteen of the PSI, which
included three instances of masturbation, threatening to
throw urine on a prison official, twice telling a prison
nurse “I have something for you to swallow” while
gesturing with his hands inside his pants, and cursing at and
acting aggressively toward prison officials. PSI ¶¶
15, 16, 17, 19; PSI Addendum. However, Petitioner denied the
altercation during which another inmate told Petitioner he
did not want to see Petitioner “play with
himself” in the common room and telling a female staff
member he would find out where she lives after he was
released and “rape the fucking shit out of her.”
PSI ¶¶ 18, 20; PSI Addendum. Petitioner apologized
for some of his actions in the objections and stated he has
not misbehaved since he has been transferred to McDuffie
County Jail, where he can visit his family more regularly.
Id. Additionally, Petitioner pointed out he already
received punishment for his actions at the jail and
increasing his sentence “goes beyond the bounds of
fairness and sends a chilling message” to other
defendants considering guilty pleas. Id.
probation officer responded by citing Application Note 3 to
U.S.S.G. § 3E1.1, which states evidence of acceptance of
responsibility “may be outweighed by conduct of the
defendant that is inconsistent with such acceptance of
responsibility. A defendant who enters a guilty plea is not
entitled to an adjustment under this section as a matter of
right.” Id. The probation officer argued
Petitioner's conduct at Lincoln County Jail, which
constituted violations of state and local law, significantly
outweighed consideration of Petitioner's admissions as to
the charged conduct. Id.
sentencing, Petitioner also told Judge Hall he wanted to
withdraw his guilty plea, stating Mr. Durham instructed him
to say “yes” to everything at the change of plea
hearing and he has a family and a daughter who need him. CR
113-010, doc. no. 404, pp. 5-7. During questioning by Judge
Hall, Petitioner confirmed Mr. Durham did not threaten or
pressure him into pleading guilty, he knew what he was doing
during the change of plea hearing, and he knew about his
family situation during the change of plea hearing.
Id. Accordingly, Judge Hall found an insufficient
basis for allowing Petitioner to withdraw his guilty plea and
proceeded with sentencing. Id. at 7.
Hall heard argument from Mr. Durham concerning the PSI
objection. Id. at 3. Mr. Durham stated Petitioner
admitted the conduct alleged in paragraphs fifteen, sixteen,
seventeen, and nineteen, but believed he was in a private
area while masturbating and misbehaved in order to be moved
closer to his family in McDuffie County. Id. at 3-4,
8-11. Mr. Durham asked Judge Hall to grant Petitioner the
acceptance of responsibility reduction because Petitioner
believed he was entitled to it and Petitioner still faced a
two-year consecutive sentence in addition to the sentencing
guideline range for the other charges. Id. at 9, 12.
The government argued Petitioner's admission shows he has
not turned away from criminal activity and committed criminal
actions while incarcerated, citing in support the application
notes to U.S.S.G. § 3E1.1 stating acceptance of
responsibility can be outweighed by other inconsistent
conduct. Id. at 13-15.
Hall described Petitioner's admitted actions as set forth
in the PSI in detail before determining Petitioner's
actions were not consistent with a defendant who has truly
accepted responsibility for his criminal conduct.
Id. at 15-20. Accordingly, Judge Hall overruled
Petitioner's objections and upheld the probation
officer's recommendation Petitioner be denied an
acceptance of responsibility reduction. Id. at 20.
Durham argued in mitigation Petitioner has a baby and wants
to return home to be a proper parent to the child.
Id. at 22. Petitioner declined to address Judge Hall
further. Id. at 22-24. The government described
Petitioner as unrepentant, unremorseful, and unwilling to
abide by the rules of the Court, and asked Judge Hall to
sentence Petitioner at the high end of the guideline range.
Id. at 24. Judge Hall imposed a sentence of 84
months of imprisonment for Counts One, Ninety-three, and
Ninety-six to be served consecutively to twenty-four months
of imprisonment for Count 122 and the term of incarceration
Petitioner was currently serving in McDuffie County Jail for
state court convictions. Id. at 25.
December 17, 2013, Petitioner filed a pro se notice of
appeal. Id., doc. no. 351. The Eleventh Circuit
Court of Appeals appointed Mr. Durham to represent Petitioner
on appeal. Id., doc. no. 354. On July 8, 2014, Mr.
Durham filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), on Petitioner's
behalf, in which he stated there were no meritorious grounds
for an appeal and raised the issue of whether Judge Hall
properly overruled Petitioner's objection concerning
acceptance of responsibility. (Doc. no. 21-1, pp. 20-25.)
November 17, 2014, Petitioner filed a motion under 28 U.S.C.
§ 2255 while his direct appeal was still pending,
arguing he did not receive an acceptance of responsibility
reduction due to ineffective assistance of counsel and
“prosecutorial misconduct by the sentencing district
judge, ” which rendered Petitioner's plea agreement
involuntary. CR 113-010, doc. no. 440. Judge Hall dismissed
Petitioner's motion without prejudice because his direct
appeal was still pending before the Eleventh Circuit.
Id., doc. nos. 443, 448.
January 7, 2015, the Eleventh Circuit granted Mr.
Durham's motion to withdraw, supported by his Anders
brief, performed an independent review of the record,
determined there were no arguable issues of merit, and
affirmed Petitioner's conviction and sentence.
Id., doc. no. 449. On January 26, 2015, Petitioner
filed a memorandum in support of his first motion, raising
additional grounds for relief. Id., doc. no. 452. On
September 25, 2017, Petitioner filed a motion for
reconsideration or reinstatement of his previous § 2255
motion, to which the government responded. Id., doc.
nos. 568, 569. On October 23, 2017, Petitioner filed a motion
to have his motion for ...