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McNair v. United States

United States District Court, S.D. Georgia, Augusta Division

February 13, 2019

DENTAVIA KHIRY MCNAIR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         I. BACKGROUND

         A. Indictment

         On 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.

         B. Agreement to Plead Guilty

         On May 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.

         Petitioner's plea agreement contained the following factual basis for his guilty plea:

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.

         The 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 sentencing court.

Id. at 4-5.

         Petitioner 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.

         C. Change of Plea Hearing

         During 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, 15-16.

         Judge 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.

         Next, 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.

         Petitioner 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.

         D. Presentence Investigation Report (PSI)

         The 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.

         On 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.

         On June 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.

         The PSI 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 ¶¶ 40-41.

         Petitioner 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.

         E. Sentencing

         Through 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.

         The 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.

         At 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.

         Judge 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.

         Judge 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.

         Mr. 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.

         F. Subsequent Proceedings

         On 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.)

         On 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.

         On 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 ...


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