United States District Court, Western District of Virginia, Danville Division
Jackson L. Kiser, Senior United States District Judge
Bede Ngala, a federal inmate proceeding pro se, filed a motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. Petitioner alleges that he received ineffective assistance of counsel, in violation of the Sixth Amendment. The United States filed a motion to dismiss, and Petitioner responded, making the matter ripe for disposition. After reviewing the record, I dismiss the § 2255 motion for lacking merit.
Petitioner and others conspired to commit and did commit access device fraud and committed aggravated identify theft by receiving emails of stolen credit card account numbers, imprinting those stolen numbers to gift cards and other cards, and using those imprinted cards to make purchases. Petitioner and his co-conspirators then sold the purchased items for illicit profit until they were arrested.
Petitioner waived the right to be indicted by a grand jury and, pursuant to a written plea agreement, pleaded guilty to conspiracy to commit credit card fraud, in violation of 18 U.S.C. § 371 ("Count One"); counterfeit access device fraud, in violation of 18 U.S.C. § 1029(a)(1) ("Count Two"); and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(l) ("Count Three"). I granted the United States' motion for substantial assistance and sentenced Petitioner to twelve months' incarceration for Counts One and Two, to run concurrently, and twenty-four months' incarceration for Count Three, to run consecutively. Petitioner did not appeal but did timely file the instant motion to vacate, set aside, or correct sentence. Although Petitioner argues that counsel rendered ineffective assistance, his arguments have no merit, and I must grant the United States' motion to dismiss.
A petitioner claiming ineffective assistance of counsel must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong of Strickland requires a petitioner to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[, ]" meaning that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. The second prong of Strickland requires a petitioner to show that counsel's deficient performance prejudiced him by demonstrating a "reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine the confidence of the outcome." Id. A petitioner who pleaded guilty must demonstrate that, but for counsel's alleged error, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Petitioner presents two claims of ineffective assistance of counsel: 1) counsel was ineffective for failing to object to the aggravated identity theft charge, and 2) counsel's bad advice that Petitioner would not be sentenced for aggravated identity theft made the guilty plea to that charge involuntary. For the following reasons, Petitioner fails to establish any ineffective assistance of counsel, and the motion to dismiss must be granted.
Citing Flores-Figueroa v. United States, 556 U.S. 646 (2009), in support, Petitioner faults counsel for not objecting to the aggravated identity theft charge because nobody's name was imprinted on the access cards to which the stolen credit cards account numbers were recoded. Petitioner believes he was prejudiced by this failure because he allegedly did not know the identities of the stolen credit card accounts' owners, and thus, could not be convicted of aggravated identity theft. An analysis of both the legal and factual support of this claim reveals its lack of merit.
The premise of Petitioner's legal argument is a person cannot be considered guilty of aggravated identity theft by knowingly having another person's credit card account number without permission and intentionally recoding that account number onto a card that does not have another person's name on it. This interpretation is as erroneous now as it was at the time of his plea agreement. Petitioner confuses "the means of identification" as incorrectly being the nameless card to which he encoded the stolen credit card number. Instead, "the means of identification" for which he is culpable are the stolen credit card account numbers that were unique to people. See 18 U.S.C. § 1028(d)(7) (defining means of identification as, inter alia, an access device); United States v. Mitchell, 518 F.3d 230, 234 (4th Cir. 2008) ("The definition, in other words, allows for an identifier, taken alone or together with other information, to qualify as a means of identification so long as the sum total of information identifies a specific individual.").
Furthermore, the facts of the conspiracy establish that Petitioner knew "that the something he has unlawfully transferred is ... a real ID belonging to another person rather than, say, a fake ID (i.e., a group of numbers that does not correspond to any real Social Security number)." Flores-Figueroa, 556 U.S. at 647. The United States' proffer of evidence, to which Petitioner did not object, revealed that:
[Petitioner] and other conspirators engaged in a conspiracy to commit credit card fraud. ... While in Danville[, ] they received stolen credit card account numbers and they began recoding those numbers onto gift cards and other products.. .. After having the stolen credit card account numbers, [Petitioner] and other conspirators used those cards and also disclosed those cards to other members of the conspiracy to make purchases of cigarettes and retail gift cards for various stores.... [Petitioner] knew that these cards were stolen credit card numbers of other persons and they did not have the lawful authority from any of those victims to use the stolen credit card numbers. Specifically, while in Danville[, ] [Petitioner] knowingly used the credit card account of another real person without that real person's lawful authority, which [Petitioner] ...