United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
matter is before the court upon Defendant's Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255 (ECF No. 351), to which the Government has
responded. (ECF No. 372). The case was referred to the
undersigned for the issuance of all preliminary orders and
any recommendations to the district court regarding
dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28
U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a careful
review of the record and the arguments presented, it is the
opinion of the undersigned that Defendant's motion should
be denied as moot. Alternatively, it should be denied,
without an evidentiary hearing, as without merit.
January 17, 2012, Defendant Latosha Dawn Glover was charged
in a lengthy indictment with conspiracy to defraud the
Government in violation of 18 U.S.C. § 286. (ECF No. 1).
The conspiracy involved the filing of fraudulent tax returns.
Ms. Glover was not charged in the other 117 counts. She
pleaded guilty on March 22, 2012 pursuant to a written plea
agreement. (ECF Nos. 112-115). The applicable guidelines
range was 84 to 105 months, and the statutory maximum term of
imprisonment was ten years. (ECF No. 156, PSR ¶ 27
¶¶ 87-88). On June 25, 2012, the court sentenced
Defendant to a below guidelines term of 66 months
imprisonment. (ECF Nos. 194, 207, 208). Defendant appealed,
arguing that her sentence was substantively and procedurally
unreasonable. The Eleventh Circuit affirmed her sentence.
Bureau of Prisons records reflect that Defendant was released
from custody on May 3, 2017. https://www.bop.gov/inmateloc/.
filed the instant motion to vacate pursuant to the prison
mailbox rule on August 1, 2016. (ECF No. 351 at 12). The lone
ground for relief is Defendant's claim that she is
entitled to a sentence reduction pursuant to Amendment 794 to
the United States Sentencing Guidelines.
light of Defendant's release from prison, and the fact
that she challenges her sentence only, rather than her
conviction, her motion is moot. Even if it were not moot, her
claim is factually without merit, as well as untimely.
3B1.2 of the Sentencing Guidelines provides for an adjustment
in a defendant's offense level if the defendant was a
minimal or minor participant in the offense conduct. The
adjustment is available to a defendant who plays “a
part in committing the offense that makes him substantially
less culpable than the average participant.” U.S.S.G.
§ 3B1.2, comment (n.3(A)). Amendment 794, effective in
November of 2015, provided additional guidance to sentencing
courts to assist them in determining whether a mitigating
adjustment should apply.
794 is a clarifying amendment that resulted in no change to
the substantive law. It left the text of § 3B1.2
unchanged and merely “clarified the factors to consider
for a minor role adjustment” by revising the
commentary. United States v. Cruickshank, 837 F.3d
1182, 1194 (11th Cir. 2016); United States v. Gomez,
828 F.3d 324, 328 (5th Cir. 2016); United States v.
Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016);
United States v. Casas, 632 Fed. App'x 1003,
1004 (11th Cir. 2015). The Eleventh Circuit recognized that
Amendment 794 contains the “non- exhaustive list of
factors” that a court should weigh in assessing the
propriety of a role adjustment, which factors it had already
delineated in a prior opinion. Cruickshank, 837 F.3d
at 1184 (citing United States v. De Varon, 175 F.3d
930, 945 (11th Cir. 1995)).
facts of this case would not support a minor role adjustment
if Defendant were resentenced today. As noted by the Eleventh
Glover participated in an extensive fraud ring in which the
members obtained identification information, electronically
filed tax returns, and opened checking accounts at banks to
receive the fraudulently obtained tax refunds. As part of
this scheme, Glover: (1) supplied her sister, the ringleader
of the conspiracy, with names and social security numbers
with which to file false tax returns; (2) copies
identification information into notebooks and added
fictitious e-mail addresses to facilitate electronic filing;
and (3) prepared false tax returns using the information from
In 2011, Glover and her sister filed 211 fraudulent tax
returns, claiming $1, 136, 888.00 and the IRS issued them
$326, 149.00 in refunds. These tax returns involved the
identities of 176 individuals who died in 2010. The deceased
individuals' identities were obtained via the website
ancestry.com, which afforded access to the Social Security
Death Index, and the fraudulent tax returns were filed in
close proximity to the individuals' deaths to help
conceal the fraud.
In addition, Glover filed fraudulent tax returns in 2008,
2009, and 2010 in her own name, for a total fraudulent tax
refund of $20, 937.00.
(ECF No. 287 at 6-7). Thus, the § 2255 motion should be