United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the court upon Defendant's “Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody.” (ECF No. 58).
The Government has filed a response (ECF No. 61) and
Defendant has filed a reply. (ECF No. 64). 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 review of the record and the
arguments presented, the undersigned concludes Defendant has
not raised any issue requiring an evidentiary hearing and the
§ 2255 motion should be denied. See Rules 8(a)
and (b), Rules Governing Section 2255 Cases.
17, 2014, Defendant Arianna S. Lampley was charged in a
two-count indictment with theft of government money (Count
One) and aggravated identity theft (Count Two). (ECF No. 1).
Appointed counsel Sharon K. Wilson represented Defendant in
the proceedings. On July 28, 2014, Defendant entered a plea
of guilty as charged pursuant to a written plea agreement,
statement of facts, and supplement. (ECF Nos. 18-20).
to the Presentence Investigation Report (“PSR”),
the offense conduct stemmed from Defendant's deposit of
the proceeds from a single fraudulent federal income tax
return filed in the name of a deceased person and totaling
$9, 982.00, into her personal bank account. (ECF No. 28, PSR
¶ 10). Defendant admitted during a subsequent interview
with the IRS that she had deposited numerous tax refund
checks into her various bank accounts and would keep 30% of
the proceeds as a fee. (ECF No. 28, PSR ¶ 15). The IRS
learned that she had deposited 78 other fraudulent federal
income tax refunds totaling $202, 810.96 into various bank
accounts, for a total loss amount of $212, 792.96.
total offense level was 17. (ECF No. 28, PSR ¶ 35). She
had a base offense level of 6, but received a 12-level upward
adjustment due to the quantity of loss and a two-level
increase due to the vulnerable victims. (PSR ¶¶
26-28). She also received a three-level adjustment for
acceptance of responsibility. (PSR ¶¶ 33, 34).
Defendant had 32 criminal history points and her criminal
history category was VI. (PSR ¶¶ 44-70). The
applicable guidelines range was 51 to 63 months on Count One.
Count Two carried a mandatory consecutive term of two years.
(PSR ¶¶ 110, 111).
counsel made, and then withdrew at sentencing, an objection
to the loss amount, citing a lack of supporting caselaw. (ECF
No. 46 at 5). The court nonetheless asked the Government to
address the issue of whether the conduct used to enhance the
loss amount was “related to” the offense of
conviction, and ultimately determined that it was. (ECF No.
46 at 10-22).
defense also objected to the vulnerable victim enhancement,
arguing that a victim who was deceased before the offense
conduct commenced could not be injured. (ECF No. 46 at 5-7).
The court overruled the objection. (ECF No. 46 at 22-23).
court also overruled the defense objection to the two-point
enhancement for Defendant's probationary status at the
time of the offense conduct. (ECF No. 46 at 7, 23-24).
imposing sentence, the district court specifically noted that
its sentence would have been the same even if it had not
considered the prior uncharged conduct as relevant conduct,
in large part due to what it described as Ms. Lampley's
“atrocious” criminal history. (ECF No. 46 at
26-27, 31). It imposed a sentence at the low end of the
guidelines range in conjunction with the consecutive two-year
term, resulting in a total sentence of 75 months in custody.
(ECF No. 46 at 29). The court also ordered that Defendant pay
$212, 792.96 in restitution, and serve a three-year term of
appealed, challenging the application of the vulnerable
victim enhancement to cases involving victims who were
deceased at the time the offenses began. (ECF No. 56). The
Eleventh Circuit affirmed her sentence, finding that the
two-level enhancement did not affect the total sentence
imposed and that the sentence imposed was reasonable. It
first noted the district court's statement on the record
that it would have imposed the same sentence based on the
§ 3553(a) factors. The court then observed that even
without the two-level vulnerable victim enhancement
Lampley's 51-month sentence would have been within the 41
to 51 month guideline range and finally that the sentence was
well below the statutory maximum of ten years. (ECF No. 54 at
present motion, Defendant raises two grounds for relief.
First, she contends she is entitled to sentencing relief due
to a guidelines amendment, and second that she was denied the
effective assistance of counsel.