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United States v. Lampley

United States District Court, N.D. Florida, Pensacola Division

May 9, 2018

UNITED STATES OF AMERICA
v.
ARIYANNA S. LAMPLEY a/k/a Schuyler J. Nickerson

          REPORT AND RECOMMENDATION

          CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE.

         This 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.

         PROCEDURAL BACKGROUND

         On June 17, 2014, Defendant Arianna S. Lampley[1] 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).

         According 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.

         Defendant's 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).

         Defense 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).

         The 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).

         The 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).

         In 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 supervised release.

         Defendant 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 5).

         In the 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.

         ANALYSIS

         General ...


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