United States v. Blount, CASE NO. 3:15-CR-30002-PKH-MEF-1

• Court: United States District Courts. 8th Circuit. Western District of Arkansas
• Writing for the Court: HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE
• Parties: UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT v. TRAVIS ALLEN BLOUNT, JR. DEFENDANT/PETITIONER
• Docket Number: CASE NO. 3:15-CR-30002-PKH-MEF-1
• Decision Date: 14 July 2017

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
TRAVIS ALLEN BLOUNT, JR. DEFENDANT/PETITIONER

CASE NO. 3:15-CR-30002-PKH-MEF-1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HARRISON DIVISION

July 14, 2017

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court is the Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed on June 29, 2016. (Doc. 91) Petitioner filed supplements to his motion on July 14, 2016 (Doc. 97), August 1, 2016 (Doc. 98), and April 19, 2017 (Doc. 119). The Government filed its response on October 3, 2016. (Doc. 103) Petitioner filed a reply to the Government's response on January 24, 2017. (Doc. 110) An evidentiary hearing was held on June 28, 2017. The matter is ready for report and recommendation.

I. Background

On January 20, 2015, a Criminal Complaint was filed against Defendant/Petitioner, Travis Allen Blount, Jr. ("Blount"), alleging that from at least April 2013 through October 31, 2014, Blount engaged in a scheme to defraud and to obtain money from others by means of false and fraudulent pretenses, representations, and promises, and in furtherance of this scheme Blount used and caused to be used the United States Postal Service, a commercial interstate carrier such as Federal Express, and wire communications transmitted in interstate and foreign commerce via wire transfers of funds to banks, emails, text messages, facsimiles, and telephone calls. (Doc. 1, ¶¶ 1-6) Blount was charged with: three counts of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2 (Doc. 1, ¶¶ 7-12); one count of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Doc. 1, ¶¶ 13-14); and, two counts

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of money laundering, in violation of 18 U.S.C. §§ 1957(a) and (d), and 2 (Doc. 1, ¶¶ 15-18). Blount was arrested on January 22, 2015, in the Western District of Missouri (Doc. 10), and Rule 5 documents were received by this Court on January 27, 2015 (Doc. 3). Blount made his initial appearance before the undersigned, Hon. Mark E. Ford, U. S. Magistrate Judge, on February 9, 2015. (Doc. 6) The Court appointed James B. Pierce ("Pierce"), Assistant Federal Public Defender, to represent Blount. (Docs. 6, 8) Blount waived the issues of probable cause and detention, and he was ordered detained and remanded to the custody of the United States Marshal's Service. (Docs. 6, 9)

On February 25, 2015, Blount was named in an Indictment¹ charging him with: conspiracy to violate 18 U.S.C. § 2314, all in violation of 18 U.S.C. § 371; three counts of aiding and abetting mail fraud, in violation of 18 U.S.C. §§ 1341 and 2; four counts of aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; two counts of aiding and abetting interstate transportation of goods to conceal a scheme to defraud, in violation of 18 U.S.C. §§ 2314 and 2; and, four counts of aiding and abetting money laundering, in violation of 18 U.S.C. §§ 1957(a) and (d), and 2. (Doc. 13) Blount appeared with his appointed counsel for arraignment on March 4, 2015, at which time Blount entered a not guilty plea to the Indictment. (Doc. 27)

On April 15, 2015, Blount was named in a Superseding Indictment² charging him with: conspiracy to violate 18 U.S.C. § 2314, all in violation of 18 U.S.C. § 371; four counts of aiding and abetting mail fraud, in violation of 18 U.S.C. §§ 1341 and 2; one count of mail fraud, in violation of 18 U.S.C. § 1341; two counts of aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 1343

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and 2; two counts of wire fraud, in violation of 18 U.S.C. § 1343; two counts of aiding and abetting interstate transportation of goods to conceal a scheme to defraud, in violation of 18 U.S.C. §§ 2314 and 2; two counts of transportation of goods to conceal a scheme to defraud, in violation of 18 U.S.C. § 2314; three counts of money laundering, in violation of 18 U.S.C. §§ 1957(a) and (d); one count of aiding and abetting money laundering, in violation of 18 U.S.C. §§ 1957(a) and (d), and 2; and, one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Doc. 43) Blount appeared with his appointed counsel for arraignment on April 24, 2015, at which time Blount entered a not guilty plea to the Superseding Indictment. (Doc. 47)

On May 19, 2015, Blount appeared with counsel before the Hon. P. K. Holmes, III, Chief U.S. District Judge, for a change of plea hearing. (Doc. 51) A written Plea Agreement (Doc. 52) was presented to the Court, and Blount pleaded guilty to the following counts of the Superseding Indictment: Count Two (mail fraud, aiding and abetting); Count Seven (wire fraud, aiding and abetting); Counts Sixteen and Eighteen (money laundering); and, Count Twenty (felon in possession of a firearm). (Docs. 51, 52) The Court accepted the plea and ordered a presentence investigation. (Doc. 51)

An initial Presentence Investigation Report ("PSR") was prepared by the United States Probation Office on August 28, 2015. (Doc. 60) On September 28, 2015, the Government advised that it had 23 objections to the initial PSR. (Doc. 72) Some of the Government's objections sought corrections to information reported in the initial PSR, while others concerned the number of victims, the loss amount, the application of specific offense characteristics enhancements, the criminal history score and category, and the Guidelines calculations flowing from the requested changes. (Id.) On September 28, 2015, Blount advised that he had 34 objections to the initial PSR, including

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objections to the loss amounts attributed to many of the victims, the number of victims and total loss amount, and to specific offense characteristics enhancements assessed. (Doc. 71) The Probation Officer addressed these numerous objections in an Addendum to the PSR. (Doc. 79-3)

On November 25, 2015, a final PSR was submitted to the Court. (Doc. 79) The final PSR determined that Blount's conduct called for a base offense level of seven. (Doc. 79, ¶ 205) Finding that the loss was more than $550,000 but less than $1,500,000, the offense level was increased by 14 levels. (Doc. 79, ¶ 206) A two-level increase was assessed because the offense involved 10 or more victims. (Doc. 79, ¶ 207) A two-level increase was assessed because the offense involved sophisticated means and Blount intentionally engaged in or caused the conduct constituting sophisticated means. (Doc. 79, ¶ 208) A two-level enhancement was made for possession of a firearm in connection with the offense. (Doc. 79, ¶ 209) A one-level increase was assessed because Blount was convicted under 18 U.S.C. § 1957. (Doc. 79, ¶ 210) Finally, a two-level enhancement was assessed because Blount abused a position of private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense. (Doc. 79, ¶ 212) Due to these enhancements, Blount's adjusted offense level was determined to be 30. (Doc. 79, ¶ 214) After a three-level reduction for acceptance of responsibility was made, his total offense level was determined to be 27. (Doc. 79, ¶¶ 216-218)

Blount's criminal history resulted in a criminal history score of 14, placing him in criminal history category VI. (Doc. 79, ¶¶ 249-251) The statutory maximum term of imprisonment for Blount's mail fraud and wire fraud convictions is 20 years each. The statutory maximum term of imprisonment for Blount's money laundering and felon in possession of a firearm convictions is 10 years each. The total statutory maximum term of imprisonment Blount faced was 70 years. (Doc.

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79, ¶ 284) Based upon a total offense level of 27 and a criminal history category of VI, Blount's advisory Guidelines range was determined to be 130 to 162 months imprisonment. (Doc. 79, ¶ 285)

Blount appeared for sentencing on January 5, 2016. (Doc. 84) After finding that the enhancements for (a) possession of a firearm in connection with the evidence and (b) abuse of a position of private trust were proper, and due to the Government's refusal to move for the third point of acceptance of responsibility, the Court determined that Blount's total offense level was 28, resulting in an advisory Guidelines range was 140-175 months imprisonment. (Doc. 127, pp. 199-203) The Court imposed a sentence of: 120 months imprisonment on Count Two (mail fraud); 120 months imprisonment on Count Seven (wire fraud), to run concurrently with Count Two; 18 months imprisonment on Count Sixteen (money laundering), to run consecutively to Counts Two and Seven; 18 months imprisonment on Count Eighteen (money laundering), to run consecutively to Count Sixteen; and, 19 months imprisonment on Count Twenty (felon in possession of firearm), to run consecutively to Count Eighteen, for a total of 175 months imprisonment. (Doc. 84, p. 2) Three years supervised release was imposed on each count, to run concurrently; no fine was imposed; a total of $906,665.11 in restitution was ordered, with interest waived; and, a total of $500.00 in special assessments was imposed. (Id.) Judgment was entered by the Court on January 8, 2016. (Doc. 86) Blount did not pursue a direct appeal.

On June 29, 2016, Blount filed his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the "motion"). (Doc. 91) The motion raises three grounds for relief: (1) ineffective assistance of counsel due to trial counsel's failure to file an appeal; (2) that the sentences imposed for money laundering and felon in possession of a firearm are invalid based on Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015); and, (3) that

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the convictions for wire fraud and mail fraud were obtained in violation of due process based on prosecutorial misconduct because the evidence was insufficient to prove the crimes presented to the grand jury. (Doc. 91, p. 4) More specifically, Blount contends that he specifically...