Newton v. United States

• Decision Date: 23 March 2018
• Docket Number: Civ. Act. No. 15-67-LPS,Cr. Act. No. 13-094-LPS
• Parties: BEVERLY NEWTON, Movant/Defendant, v. UNITED STATES OF AMERICA, Respondent/Plaintiff.
• Court: U.S. District Court — District of Delaware

BEVERLY NEWTON, Movant/Defendant, v. UNITED STATES OF AMERICA, Respondent/Plaintiff.

Civ. Act. No. 15-67-LPS

Cr. Act. No. 13-094-LPS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

March 23, 2018

Beverly Newton. Pro se Movant.

Lesley F. Wolf, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.

MEMORANDUM OPINION

March 23, 2018

Wilmington, Delaware

STARK, U.S. District Judge:

I. INTRODUCTION

Beverly Newton ("Movant") filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (D.I. 74) The United States filed an Answer in Opposition, to which Movant filed a Reply. (D.I. 82; D.I. 85) For the reasons discussed, the Court will deny Movant's § 2255 Motion without holding an evidentiary hearing.

II. BACKGROUND

On September 19, 2013, Movant pled guilty to false claims conspiracy, mail fraud, and social security fraud. (D.I. 48; D.I. 75) The charges stemmed from Movant's participation in a conspiracy to file false federal income tax returns with the Internal Revenue Service ("IRS"), using other people's identities, from January 2011 through April 2013. (D.I. 82 at 1)

A pre-sentence investigation report ("PSR") was drafted prior to Movant's sentencing hearing. Movant provided a number of corrections to the PSR, which were incorporated into the final version. The final version of the PSR described the offense conduct as follows:

Beginning in or around January 18, 2011, [Movant] engaged in an identity theft and tax fraud conspiracy. [Movant] and her co-conspirators obtained the names and social security numbers of more than 100 people in Delaware and elsewhere. Over the course of two years, these identities were used to file at least 180 false Federal Income Tax Returns with the Internal Revenue Service (IRS). The returns were false in that [Movant's] co-conspirators had fabricated the wage and withholding information on the tax returns, among other things, enabling them to seek more than $1.8 million in refunds.

PSR at ¶ 18.

As calculated in the PSR, Movant's Total Offense Level was 26, and her Criminal History Category was I, leading to a Guideline Range of between 63 and 78 months imprisonment. See PSR at ¶¶ 37, 52, 82. This calculation was based, in part, on a four-level enhancement for the number ofvictims (50 or more) under U.S.S.G. § 2B1.1(b)(2)(b), and a two-level enhancement for the unlawful transfer of a means of identification (unlawfully obtained SSNs) to obtain another means of identification (tax returns), under U.S.S.G. § 2B1.1(b)(11)(c)(i). See PSR at ¶¶ 39, 40. Movant did not raise any legal objections to the PSR. However, she filed a Sentencing Memorandum asking the Court for a downward departure on the basis of attempted cooperation, acceptance of responsibility, and because the loss substantially overstated the seriousness of the offense. (D.I. 61; D.I. 63) The government opposed Movant's request for a downward departure and asked for a sentence of 72 months. (D.I. 62 at 9)

During the sentencing hearing, the Court adopted the PSR's calculation of the Guideline Range and sentenced Movant to a 63 month sentence. (D.I. 76) The Court considered the arguments and the relevant factors set out in 18 U.S.C. § 3553(a) and denied Movant's motion for downward departure after making an individualized assessment based on the facts presented. The Court then highlighted several factors supporting the imposition of a lengthy sentence. For instance, the Court explained that Movant "was engaged in "a long and large criminal conspiracy," involving at least $1.8 million in intended loss, and noting that "[i]t was the intent of this conspiracy to go on through two or even three tax seasons, to involve the filing of close to 200 false federal returns, to steal the identities of numerous individuals with all the attendant harm to those individuals." (D.I. 76 at 26) The Court further explained,

[i]t was not a fleeting bad moment decision, nor was it an unsophisticated scheme that [Movant] was engaged in. Specifically, the scheme ran from January of 2011 until [Movant's] arrest in April of 2013. It was a conspiracy to obtain the name and Social Security numbers and file false federal and ultimately state tax returns, eventually using the identification information of more than 100 people. And, as I say, it culminated in the filing of at least 180 federal false tax returns seeking in excess of $1.8 million of refunds.

* * * *

[Movant] knew that the tax returns were false. That is set out in [the] presentence report at paragraph 19 without objection. And she stipulated in a plea agreement that the conspiracy was responsible for more than $1 million of loss. The actual loss to the United States Government was $872,000, and [Movant] personally received more than $300,000 from her participation in this criminal scheme.

(D.I. 76 at 26-27) The Court sentenced Movant to 63 months of imprisonment, three years of supervision, a $100 special assessment, and $872,443 restitution. (D.I. 64)

III. DISCUSSION

By her Motion, Movant asserts that defense counsel provided ineffective assistance by: (1) failing to object to the application of a four-level enhancement for the number of victims (fifty or more) under U.S.S.G. § 2B1.1(b)(2)(b); and (2) failing to object to the application of a two-level identity theft enhancement, under U.S.S.G. § 2B1.1(b)(11)(c)(i). As a general rule, ineffective assistance of counsel allegations are properly presented in a § 2255 motion. See Massaro v. United States, 538 U.S. 500 (2003). However, Paragraph 15 of Movant's Plea Agreement contains a waiver of Movant's right to file a direct appeal and/or a collateral attack on her conviction and sentence, except in the following circumstances:

(1) the government appeals from the sentence; (2) [her] sentence exceeds the statutory maximum for the offense set forth in the United States Code; or (3) the sentence unreasonably exceeds the Sentencing Guidelines range determined by the District Court in applying the United States Sentencing Guidelines.

(D.I. 48 at ¶ 15)

The government does not address the appellate/collateral attack waiver in its Answer, but contends that Movant's ineffective assistance of counsel claims should be denied as meritless. The Court construes the government's silence as an implicit concession that the ineffective assistance ofcounsel claims should not be included in the waiver, and concurs with its concession. The Third Circuit has recognized that a miscarriage of justice may result by enforcing an appellate/collateral waiver where there has been ineffective assistance of counsel in connection with the negotiation of the waiver. See United States v. Sbedrick, 493 F.3d 292, 298 (3d Cir. 2007). Additionally, in October 2014, the Department of Justice ("DOJ") issued a memorandum stating that the DOJ will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel. See http://www.justice.gov/opa/pr/attorney-general-holder-announces-new-policy-enhance-justice-departments-commitment-suppoet (last visited January 30, 2015). The memorandum also provides that, for "cases in which a defendant's ineffective assistance claim would be barred by a previously executed waiver, prosecutors should decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant's ineffective assistance claim raises a serious debatable issue that a court should resolve." Id. Given these circumstances, the Court will address the merits of Claims One and Two.

Ineffective assistance of counsel claims are reviewed pursuant to the two-pronged standard established in Strickland v. Washington, 466 U.S. 668 (1984). Under the first Strickland prong, Movant must demonstrate that "counsel's representation fell below an objective standard of reasonableness," with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Id. at 688. In evaluating an attorney's conduct, a court must avoid "the distorting effects of hindsight" and must "evaluate the conduct from counsel's perspective at the time." Id. at 687. Under the second Strickland prong, Movant must demonstrate a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Id. at 694; United States v. Nabodil, 36 F.3d 323, 326 (3d Cir. 1994). Both Strickland prongs must be satisfied in order forMovant to successfully show that defense counsel rendered constitutionally ineffective assistance, and the Court can choose which prong to address first. See Strickland, 466 U.S. at 668.

Finally, the Strickland standard is highly demanding and leads to a strong presumption that counsel's representation was professionally reasonable. See id. at 689. Nevertheless, "[w]here defense counsel fails to object to an improper enhancement under the Sentencing Guidelines, counsel has rendered ineffective assistance." Jansen v. United States, 369 F.3d 237, 244 (3d Cir. 2003) (emphasis added).

A. Claim One: Number of Victims Enhancement

In Claim One, Movant contends that defense counsel provided ineffective assistance by failing to object to the application of the four-level enhancement for 50 or more victims. According to Movant, the Court should have determined if the 50 or more victims enhancement was applicable to her case under the "clear and convincing evidence" standard, rather than the "preponderance of the evidence" standard. She asserts that there is "no way of knowing whether the alleged 200 individuals referred to by the government as 'victims' suffered pecuniary harm or how they may otherwise satisfy the definition of victim." (D.I. 85 at 6) Movant alleges the enhancement was improperly applied because only individuals who have suffered actual financial losses may be considered victims, and the Court applied the enhancement for...