United States District Court, N.D. Georgia, Atlanta Division
FARRAN S. CAMPBELL, Movant,
UNITED STATES, Respondent.
TO VACATE 28 U.S.C. § 2255
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
J. BAVERMAN UNITED STATES MAGISTRATE JUDGE.
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.
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.)
now brings this § 2255 motion and argues that his
counsel was in ineffective (1) in regard to the use of the
$307, 589.00 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.)
28 U.S.C. § 2255 Standard
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.
[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,
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.
Ineffective Assistance on Loss Amount
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.)
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. 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.
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, ...