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Newton v. United States

United States District Court, D. Delaware

March 23, 2018

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

          Beverly Newton. Pro se Movant.

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

          MEMORANDUM OPINION

          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 evidential-}' 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 coconspirators 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 of victims (50 or more) under U.S.S.G. § 2B 1.1 (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)(l l)(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 man $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. § 2B 1.1 (b)(2)(b); and (2) failing to object to the application of a two-level identity theft enhancement, under U.S.S.G. § 2Bl.l(b)(ll)(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 ...

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