United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Petitioner Ray Ekobena's
("Petitioner") Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255.
August 20, 2015, Petitioner pleaded guilty to seven felonies
arising from three separate schemes to steal identities and
defraud banks, charities, and individuals. On November 6,
2015, this Court imposed a below-guidelines sentence of 80
months, plus the mandatory 24-month sentence required by
U.S.C. § 1028A. The Fourth Circuit affirmed
Petitioner's conviction and sentence, holding that he
waived in his plea agreement the right to raise various
objections to guideline enhancements imposed by this Court.
August 31, 2016, Petitioner filed the instant § 2255
motion, raising ineffective assistance of counsel claims on
the basis that (1) his attorney allegedly erred in pressing
an objection to a 2-level enhancement under U.S.S.G. §
2B1.1. (b) (10); (2) his attorney allegedly erred in
challenging the number of victims enhancement under U.S.S.G.
§ 2Bl.l. (b)(9)(A); and (3) his attorney allegedly erred
when she did not argue the disparity in sentencing between
Petitioner and one of his co-defendants. On January 26, 2017,
Petitioner filed a motion to amend his § 2255 Motion to
add a fourth claim of ineffective assistance of counsel. In
that claim, Petitioner argues that his attorney failed to
investigate and properly present mitigating factors under
U.S.S.G. § 5k2.0. Having granted Petitioner's motion
to amend, the Court addresses Petitioner's fourth claim
28 U.S.C. § 2255, a petitioner may attack his sentence
or conviction on the grounds that it was imposed in violation
of the Constitution or laws of the United States, that the
court was without jurisdiction to impose such a sentence,
that the sentence exceeded the maximum authorized by law, or
that the sentence otherwise is subject to collateral attack.
28 U.S.C. § 2255; see also Hill v. United
States, 368 U.S. 424, 426-27 (1962). The petitioner
bears the burden of proving the grounds for relief by a
preponderance of the evidence. Vanater v. Boles, 377
F.2d 898, 900 (4th Cir. 1967).
succeed on a claim of ineffective assistance of counsel,
Petitioner must show: (1) that his counsel's performance
was objectively unreasonable; and (2) that his counsel's
deficient performance prejudiced the defense. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
An ineffective assistance of counsel claim will fail if
petitioner cannot make the required showing of either
deficient performance or sufficient prejudice. Id.
reasonableness is "simply reasonableness under
prevailing professional norms" regarding the
representation. Id. at 688. There is a strong
presumption that counsel rendered adequate assistance and
made all significant decisions with reasonable professional
judgment. Id. at 689-90; United States v.
Terry, 366 F.3d 312, 316-18 (4th Cir. 2004). Review of
counsel's performance must be comprehensive and not
narrowly limited to counsel's failings in determining
whether the presumption of adequate assistance has been
overcome, and courts should be reluctant to second guess the
tactics of trial lawyers. See Strickland, 466 U.S.
at 691; Goodson v. United States, 564 F.2d 1071,
1072 (4th Cir. 1997). Furthermore, a petitioner must show
that there is a "reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different."
Strickland, 466 U.S. at 669.
cannot satisfy his burden on any of his ineffective
assistance of counsel claims. Petitioner's first claim is
that his counsel failed to sufficiently present supporting
facts to his objection to a 2-level enhancement under
U.S.S.G. § 2B1.1(b) (10), which applies if "the
defendant relocated, or participated in relocating, a
fraudulent scheme to another jurisdiction to evade law
enforcement, " or if "the offense otherwise
involved sophisticated means." Petitioner argues that he
moved from Minnesota to Washington, D.C., not to relocate a
conspiracy, but to return to college at Howard University,
and thus, this enhancement was wrongfully imposed.
Petitioner's attorney raised this objection, and she
'presented supporting facts to this objection in her
sentencing position memorandum and at Petitioner's
sentencing hearing. Moreover, there was ample basis to apply
this enhancement. Putting the relocation of the conspiracy to
a side, Section 2B1.1(b)(10) still applies because the
conspiracy in which Petitioner participated "otherwise
involved sophisticated means." For this enhancement to
apply, a scheme must involve more than the concealment or
complexities inherent in fraud, but a defendant need not
utilize the most complex means possible to conceal fraudulent
activity. United States v. Adepoju, 756 F.3d 250,
257 (4th Cir. 2014); United States v. Jinwright, 683
F.3d 471, 486 (4th Cir. 2012).
case, Petitioner developed a network of recruiters to obtain
bank accounts in which to deposit fraudulent checks, employed
bank tellers and other insiders to provide him with account
information, set up bank accounts under false and stolen
identities, incorporated fictitious LLCs using false and
stolen identifies, and withdrew cash in amounts just under
$3, 000 to avoid triggering reporting requirements. These
means sufficiently trigger the enhancement under Section
2B1.1(b)(19}. As a result, Petitioner cannot show that his
counsel committed any objective errors that would have had a
reasonable probability of changing the Court's decision
on this enhancement.
second claim is that his counsel did not challenge the
10-victim enhancement under Section 2B1.1(b)(9)(A).
Specifically, Petitioner argues that because he agreed to pay
restitution to nine victim banks who suffered losses due to
his conspiracy, the record does not support that there were
ten or more victims meriting this enhancement. However, the
nine banks were not the only victims of Petitioner's
crimes. Petitioner admitted that he stole the identities of
numerous individuals and used them to buy cars under their
credit. This victimized the individuals whose identities were
stolen, as well as the car dealerships whose cars depreciated
due to being stolen for months. It was well within the realm
of professional competence for Petitioner's attorney to
focus on stronger objections, rather than to fight over which
victims suffered what damage. As a result, defense
counsel's decision not to challenge the victim's
enhancement was reasonable.
third claim is that his counsel erred when she did not argue
the disparity in sentencing between him and Stefan Ekobena,
Petitioner's younger brother and co-conspirator. However,
defense counsel argued that point. Specifically, she
maintained that Petitioner was no more culpable than Stefan
Ekobena and other conspirators, and she objected to
Petitioner receiving a leadership role in the conspiracy. The
Court applied the leadership enhancement and imposed a higher
sentence on Petitioner because, in part, Petitioner was
convicted of seven felonies, compared to his brother's
three, and because Petitioner orchestrated two additional
plots in which his brother did not participate.
those plots involved a scheme to steal over $200, 000 from
Children's National Medical Center, and the other
involved the purchase of luxury vehicles on the credit of
identity theft victims. These extra schemes justified the
additional 38-month sentence imposed on Petitioner beyond the
sentence that his brother received. The Court imposed a
leadership enhancement, and a higher sentence, not because of
any objective errors committed by defense counsel, but
because they were supported by the facts. Thus, Petitioner
fails to meet his burden on his third claim of ineffective
assistance of counsel.
fourth claim, which is included in Petitioner's Motion to
Amend his § 2255 motion, is that his attorney failed to
investigate and properly present mitigating factors under
U.S.S.G. § 5k2.0. Specifically, Petitioner argues that
his counsel did not present different factors to the Court
meriting a downward sentencing departure, including that
Petitioner has an alcohol problem; that he had strong family
and community ties; that he provided for his daughter; that
his father was ...