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Campbell v. United States

United States District Court, N.D. Georgia, Atlanta Division

May 17, 2019

FARRAN S. CAMPBELL, Movant,
v.
UNITED STATES, Respondent.

         MOTION TO VACATE 28 U.S.C. § 2255

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          ALAN J. BAVERMAN UNITED STATES MAGISTRATE JUDGE.

         Movant has filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence entered under the above criminal docket number. The matter is before the Court on the § 2255 motion [Doc. 12], Respondent's response, [Doc. 15], and Movant's reply, [Doc. 21]. For the reasons discussed below, Movant's motion to vacate and a certificate of appealability are due to be denied.

         I. Background

         In September 2016, the Grand Jury for the Northern District of Georgia charged Movant with stealing a U.S. Treasury check for $307, 589.00, made payable to Duncan Nationwide, Inc. Indictment, United States v. Campbell, No. 1:16-cr-0345-ELR-AJB-1 (N.D.Ga. Mar. 26, 2018). On May 8, 2017, in the criminal action that is the subject of these proceedings, Movant was charged by criminal information with conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1343, and with aggravated identify theft, in violation of 18 U.S.C. § 1028A(a)(1) and (2). (Criminal Info., ECF No. 1.) On that same day, Movant entered into a guilty plea, in which he pleaded guilty to both counts and in which the government agreed to dismiss the indictment in 1:16-cr-0345. (Guilty Plea and Plea Agreement, ECF No. 3-1.) Movant received a twenty-seven month term of imprisonment for the wire-fraud conviction and a consecutive twenty-four month term for the identity-theft conviction. (Tr. for Sentencing at 44-45, ECF No. 18-3.)

         Movant now brings this § 2255 motion and argues that his counsel was in ineffective (1) in regard to the use of the $307, 589.00[1] check from the dismissed charge to determine the loss amount at sentencing and (2) for not challenging the nexus to interstate commerce. (Mov't Mem. at 2-7, ECF No. 12-1.)

         II. 28 U.S.C. § 2255 Standard

         Section 2255 of Title 28 allows a district court to vacate, set aside, or correct a federal sentence that was imposed in violation of the Constitution or laws of the United States or was imposed by a court without jurisdiction, exceeds the maximum sentence authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. The § 2255 movant bears the burden to establish his right to collateral relief, Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015), which is limited.

         “Once [a] defendant's chance to appeal has been waived or exhausted, . . . we are entitled to presume he stands fairly and finally convicted, ” and “to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 164, 166 (1982). Section 2255 relief “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) (quoting Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988)) (internal quotation marks omitted). A constitutional claim of ineffective assistance of counsel, which generally cannot be fully litigated on direct appeal, is properly raised on collateral review in order to allow for adequate development and presentation of relevant facts. Massaro v. United States, 538 U.S. 500, 505-09 (2003).

         “The district court is not required to grant a petitioner an evidentiary hearing if the § 2255 motion ‘and the files and records of the case conclusively show that the prisoner is entitled to no relief.' ” Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (quoting § 2255(b)). That is the case here, as shown in the discussion below.

         III. Discussion

         A. Ineffective Assistance on Loss Amount

         As stated above, Movant, in the criminal action that is the subject of these § 2255 proceedings, pleaded guilty to conspiracy to commit wire fraud and aggravated identify theft, and the government agreed to dismiss the charge for stealing a $307, 589.00 U.S. Treasury check (case number 1:16-cr-0345-ELR-AJB-1). See supra I. The parties agreed that the wire-fraud count was subject to a maximum five-year term of imprisonment, that the identity-theft count was subject to a two-year mandatory minimum term of imprisonment, and that the loss amount resulting from Movant's offenses of conviction and all relevant conduct was more than $150, 000 but less than $1, 500, 000. (Guilty Plea and Plea Agreement ¶¶ 7, 12, 15.) At the conclusion of the plea hearing, Movant stated that he was aware that the government at sentencing might present the check as relevant conduct and that he might contest the matter. (Tr. for Guilty Plea at 29, ECF No. 18-4.)

         The PSR included in the loss amount the $307, 589.00 check and calculated a twelve-level increase under U.S.S.G. § 2B1.1(b)(1)(g). (PSR ¶¶ 34, 41.) Movant objected. (Id. ¶ 41.) In a pre-sentencing memorandum, the government argued that the $307, 589.00 check was relevant conduct that should be included in the loss amount. Sentencing Mem. by USA at 1-4, Campbell, No. 1:16-cr-0345-ELR-AJB-1, ECF No. 42.[2] Movant argued that the loss amount should not include the check (or if it was included, he should receive a downward variance). Sentencing Mem. by at 1, Campbell, No. 1:16-cr-0345-ELR-AJB-1, ECF No. 43.

         At sentencing, in regard to the loss-amount objection, counsel (1) stated that the difference between arguing for a lower offense level versus a departure was six and one-half dozen and that he would take the position of asking for a downward departure and (2) argued that Movant had merely taken the check which appeared to be a real check and that there was no loss based on the check as the bank had not honored it. (Id. at 10, 12, 15.) The government, among other things, argued that Movant knew the check was not legitimate and had intended the loss of $307, ...


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