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United States v. Jean

United States District Court, E.D. Virginia, Richmond Division

August 10, 2016

RAMOTH JEAN, Petitioner. Civil Action No. 3:16CV16-HEH

          USA, Plaintiff, represented by Michael C. Moore, United States Attorney's Office.


          HENRY E. HUDSON, District Judge.

         Petitioner, Ramoth Jean ("Jean"), a federal inmate proceeding pro se, entered a plea of guilty in this Court on October 8, 2013 to Conspiracy to Commit Mail and Wire Fraud, in violation of 18 U.S.C. § 1349 and Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A(a)(1), pursuant to a plea agreement. In paragraph 5 of the Plea Agreement, Jean waived his right of appeal with respect to any sentence within the statutory maximum. (Plea Agreement ¶ 5, ECF No. 25.)

         On January 9, 2014, Jean was sentenced to a total of 114 months of confinement, coupled with three years of supervised release.[1] Jean subsequently filed a Notice of Appeal in the United States Court of Appeals for the Fourth Circuit, which was dismissed by unpublished Order entered October 9, 2014 (ECF No. 68). Jean is currently serving his sentence at the Federal Correctional Institution in Jessup, Georgia.

         The case is presently before the Court on Jean's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("§ 2255 Motion, " ECF No. 74), which was timely filed. The United States has filed a memorandum supporting its position opposing the relief sought by Jean (ECF No. 76), to which Jean has filed a reply (ECF No. 77). Although Jean styles his claims as ineffective assistance of counsel, they are, in essence, a thinly veiled vehicle for challenging the application of certain sentencing guidelines and loss calculations in his case. The record at hand conclusively fails to support any of Jean's contentions and no hearing is necessary. His perception of ineffectiveness flows from his misunderstanding of the law and misconstruction of the evidence.

         This Court's analysis begins with recognition of the well-settled principle that unless a claim alleges a lack of jurisdiction or constitutional error, the scope of collateral review is limited. Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). As Chief Justice Rehnquist noted in Brecht v. Abrahamson, "the writ of habeas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness.... Accordingly, it hardly bears repeating that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." 507 U.S. 619, 633-34 (1993) (internal quotation marks and citations omitted). Accordingly, errors of law do not typically provide a basis for habeas relief under 28 U.S.C. § 2255 unless it constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Timmreck, 441 U.S. 780, 783 (1979). In a seamless series of cases, the Fourth Circuit has continually held that "misapplication of the sentencing guidelines does not amount to a miscarriage of justice." United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999); see United States v. Foote, 784 F.3d 931, 939 (4th Cir. 2015); United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999).

         Historically, the United States Supreme Court has adopted a narrow construction of the miscarriage of justice exception and limited its application to viable claims of actual innocence. Foote, 784 F.3d at 940 (citing Schlup v. Delo, 513 U.S. 298, 315, 321 (1995)). The Supreme Court in Schlup characterized the class of eligible cases as narrow and the concept applicable only to the extraordinary case. 513 U.S. at 319.

         The overarching claim in Jean's § 2255 Motion is that he received ineffective assistance from his trial counsel during the sentencing proceedings. He contends that his counsel (1) failed to challenge the loss calculation amount; (2) failed to review changes to "SECOND PSR"; (3) was ineffective in not arguing against the "sophisticated means" enhancement; and (4) failed to challenge losses occurring after Jean's incarceration. The Court's analysis is hindered somewhat by the lean factual basis supporting Jean's claims and his misapplication of legal principles.

         As freestanding challenges to the trial court's calculation of the sentencing guidelines, Jean's claims founder on the shoals of firm circuit precedent. In an attempt to provide legal sustenance to his guideline challenges, Jean recasts them as ineffective assistance of counsel claims.

         To prevail on a claim of ineffective assistance of counsel, a defendant must show first that counsel's representation was deficient, and second, that the deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, a defendant must overcome the "strong presumption' that counsel's strategy and tactics fall within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689).

         The prejudice component requires a defendant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697. To support his claim, Jean must demonstrate a "reasonable probability of a different outcome." Lenz v. Washington, 444 F.3d 295, 303 (4th Cir. 2006) (internal quotation marks and citations omitted). Jean fails to surmount this high hurdle.

         Even if trial counsel had raised an objection to the Court's calculation of the loss amount in this case, it would have been unavailing. In his § 2255 Motion, Jean hinges this claim on the simple comment, "[p]lease see sentence imposed, and actual' loss." (§ 2255 Motion ¶ 12.) In calculating the loss in this case, the Court drew upon the record evidence and relied upon an intended loss methodology. Under the U.S. Sentencing Guidelines, losses attributable to a defendant are the "greater of actual loss or intended loss." U.S.S.G. § 2B 1.1 cmt. n.3(A). The sentencing guidelines further define "intended loss" as pecuniary harm envisioned by the charged scheme or plan irrespective of whether the actual losses were likely to occur. U.S.S.G. § 2B1.1. cmt. n.3(A)(ii). Central to the analysis is what was ultimately intended by the scheme. The Fourth Circuit has consistently approved of the intended loss methodology. United States v. Miller, 316 F.3d 495, 499 (4th Cir. 2003). Jean's challenge to the loss calculation is further foreclosed by the Statement of Facts, which he acknowledged in open court as correct. In paragraph 23, Jean represented that "the parties agree that the reasonably foreseeable intended loss attributable to the defendant is $2, 241, 000 (747 names X $3, 000.00 per return)." (Statement of Facts ¶ 23, ECF No. 26.)

         The object of the conspiracy in this case was the use of stolen personal identifying information to file false tax returns that generated fraudulent refunds shared by members of the conspiracy. During the course of the investigation, law enforcement recovered 747 index cards containing personal identifying information, some accompanied by prepaid debit cards in the same name. The debit cards were used in connection with tax refunds. In the agreed upon Statement of Facts, Jean admitted

that losses or intended losses associated with the 747 names were reasonably foreseeable to JEAN, as it was reasonably foreseeable that each of the names would be used to file a fraudulent tax return if the scheme proceeded according to plan. Although the amounts sought in the fraudulently filed returns varied, the parties agree that an average ...

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