United States District Court, E.D. Kentucky, Central Division, Lexington
REPORT AND RECOMMENDATION
Candace J. Smith United States Magistrate Judge.
March 21, 2017,  Defendant Zakiyyah T. Gooden (hereinafter
“Gooden” or “Defendant”) filed a
pro se Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody pursuant to 28 U.S.C.
§ 2255. (R. 470). The United States filed a Response on
May 17, 2017. (R. 481). Gooden filed a Reply on June 20, 2017
(R. 484), and by leave of the Court filed a Supplemental
Reply on July 18, 2017. (R. 492). Having all relevant
documents before the Court, the matter is ripe for
consideration and preparation of a Report and Recommendation
pursuant to 28 U.S.C. § 636(b). For the reasons set
forth below, the undersigned recommends that
Defendant's Motion be denied.
FACTUAL AND PROCEDURAL HISTORY
March 12, 2015, a federal grand jury returned a Superseding
Indictment against Gooden,  along with 8 other co-defendants.
The Superseding Indictment alleged, inter alia, that
Gooden and her co-defendants executed a conspiracy to obtain
money by defrauding financial institutions with counterfeit
checks based upon information stolen from mailboxes of
various businesses. (See R. 61). The Superseding
Indictment further alleged that the conspirators perpetrated
their fraudulent scheme in a number of locations across the
United States. (See id.). Gooden was charged with
bank fraud and conspiracy to commit bank fraud in violation
of 18 U.S.C. § 1344 (Count 4) and 18 U.S.C. § 1349
(Count 1), respectively.
Court appointed C. William Swinford, Jr. as Defendant's
counsel on January 22, 2015. Mr. Swinford appeared with
Gooden as appointed counsel of record at her initial
appearance the following day, as well as her arraignment on
Superseding Indictment on March 23, 2015. (See R.
91). After his appointment as counsel, Mr. Swinford began to
prepare Gooden's defense. The main focus of the
parties' pretrial proceedings involved a laptop computer
the Government seized from a co-conspirator's hotel room.
(See R. 179). The United States planned to use the
extracted data at trial or sentencing to establish the facts
of the offense, as well as the amount of monetary loss and
number of victims affected by the scheme. (Id. at
3). The laptop contained evidence of the preparation of
hundreds of counterfeit checks totaling over $5.5 million and
involving numerous victims, including individuals, business
entities, and financial institutions. (Id. at 2;
see also R. 434, at 120-21). Along with counsel for
several co-defendants, Mr. Swinford sought court approval for
funds to retain a digital forensic investigator to analyze
data from the seized laptop. (R. 179, at 2-3). Counsel sought
expert testimony to potentially disprove the facts of the
offense or, alternatively, to eliminate or minimize the scope
of the conduct attributed to Gooden. (See id.).
United States made an initial plea offer. Of significance to
Gooden's subject Motion are the agreed-upon Sentencing
Guidelines calculations between the parties, including the
amount of the intended financial loss applicable to
Gooden's potential sentencing calculations. The
Government's initial plea offer assessed the loss to fall
between $2.5 million and $7 million, which would have
increased Gooden's base offense calculation by 16 to 18
levels under U.S.S.G. § 2B1.1(b)(1)(J). (See R.
481, at 10). Gooden's counsel then negotiated extensively
with the United States regarding the loss amount, working
through a number of considerations relating to the data that
the United States extracted from the laptop. (See
id.). Gooden's final Plea Agreement reflected an
agreement by the United States to “argue at sentencing
that the [maximum] amount of loss foreseeable to the
Defendant was between $550, 000 and $1, 500, 000” under
U.S.S.G. §2B1.1(b)(1)(H), a fraction of the $2.5 million
to $7 million range reflected in the initial plea offer. (R.
378, at 4). This lower amount of loss would increase
Gooden's base offense calculation by no more than 14
levels, rather than 16 to 18 levels, under U.S.S.G. §
upon counsel's negotiations with the United States,
Defendant Gooden agreed to accept the Government's final
plea offer. (R. 378). In exchange for her plea of guilty to
Count 1 of the Superseding Indictment for conspiracy to
commit bank fraud in violation of 18 U.S.C. § 1349, the
United States agreed to move at sentencing to dismiss Counts
1 and 5 of the Indictment, and Count 4 of the Superseding
Indictment. (R. 479, at 10-11). The final Plea Agreement also
stipulated to certain recommended Sentencing Guidelines
calculations: a base offense level of 7, which base offense
level would be increased by 14 levels if the loss amount were
between the $550, 000 and $1.5 million range that the United
States agreed not to argue above,  and a 2-level base offense
increase for an offense involving 10 or more victims,
resulting in a total base offense level based on the
parties' agreement of approximately 23. (See R.
378, at 4). The parties also agreed to recommend a 3-level
reduction for Gooden's timely acceptance of
responsibility with her plea of guilty. (See id.).
Plea Agreement noted that the parties' recommended
Sentencing Guidelines calculations were not binding upon the
Court, and expressly reserved the right for either party to
object to or argue in favor of other Guidelines calculations.
(See Id. at 3). The Plea Agreement further noted
that, although key to the ultimate calculation of
Defendant's Sentencing Guidelines range, the parties did
not reach any agreements concerning Defendant's Criminal
History Category pursuant to U.S.S.G. Chapter 4.
(Id. at 4).
September 23, 2015, Gooden appeared with counsel for
rearraignment and entered a plea of guilty to Count 1 of the
Superseding Indictment. (R. 479, at 31). Specifically, Gooden
admitted to the following facts contained within her Plea
Agreement with the United States:
(a) In or about March 2014, and continuing through February
2015, in Fayette County, in the Eastern District of Kentucky
and elsewhere, two or more persons conspired and agreed to
violate 18 U.S.C. § 1344 (bank fraud). The purpose of
this conspiracy was to obtain money by defrauding
federally-insured financial institutions with counterfeit
(b) The Defendant knowingly and voluntarily joined this
agreement from at least August 1, 2014 through November 10,
2014. At the time the Defendant joined the agreement, the
Defendant knew that the purpose of the scheme was to create
forged and counterfeit checks, and cash those checks at banks
located in a number of locations across the United States by
materially misrepresenting that the checks were genuine. The
Defendant voluntarily joined in this scheme, providing
logistical support as the members of the conspiracy planned
their check cashing ventures. She recruited at least one
other individual to participate in the scheme, and traveled
with other members of the conspiracy to help effectuate the
scheme in multiple locations. The Defendant engaged in these
acts with the intent to defraud each respective financial
(c) The Defendant knowingly and voluntarily participated in
the conspiracy in a number of locations across the United
States. One such instance occurred on November 9 and 10,
2014, during which the Defendant and other members of the
conspiracy committed the following acts:
(1) On November 9, 2014, the Defendant traveled in a vehicle
she rented from the Atlanta, Georgia area to Lexington,
Kentucky, in the Eastern District of Kentucky, where she met
up with other members of the conspiracy. Upon arriving in
Lexington, members of the conspiracy stole checks from a
local business's mailbox.
(2) On November 10, 2014, the Defendant traveled in and
around Lexington, Kentucky with Defendant David Tatum and
another individual in the vehicle she rented. The Defendant
and Tatum worked in tandem with Defendant Shannon Rachell and
Defendant Antoinette McCullough, who were traveling in a
separate vehicle. Rachell and McCullough travelled in their
vehicle to downtown Lexington, where they recruited two local
individuals, Defendant Ronald Hill and Defendant David
Flavin, to serve as “heads” or
“soldiers” - that is, to cash counterfeit checks
for the group. McCullough then relayed Hill's and
Flavin's names to the Defendant's cell phone, which
were then relayed to Defendant Richard Thornton. Thornton
used a computer program to generate counterfeit versions of
the stolen checks bearing Hill's and Flavin's names.
(3) Later on November 10, 2014, while traveling in the
vehicle the Defendant rented, Tatum provided directions and
guidance to other members of the conspiracy via cell phone.
Members of the conspiracy, including the Defendant, then
traveled in two cars to the parking lot adjoining Traditional
Bank - a federally insured financial institution - on
Tate's Creek Road in Lexington, Kentucky. Hill and Flavin
entered and presented counterfeit checks to the bank, while
the Defendant and Tatum waited nearby, serving as a
“lookout” for the operation.
(R. 378, at 2-3; R. 479, at 26-31).
of the Plea Agreement, Defendant expressly agreed to waive
her right to appeal her guilty plea and conviction. (R. 378,
at 5). Gooden also expressly waived her right to collaterally
attack her guilty plea, conviction, and sentence, with the
exception of any ineffective assistance of counsel claims.
(Id.). Further, Defendant waived the right to appeal
any determination made by the Court at sentencing,
“with the sole exception that the Defendant may appeal
any aspect of the sentence” but only if “the
length of the term of imprisonment exceeds the advisory
sentencing guidelines range as determined by the Court at
rearraignment hearing, Defendant Gooden was placed under oath
and questioned by the Court. (R. 479, at 3). United States
District Judge Danny C. Reeves found Defendant to be
competent and capable of entering an informed plea. (R. 479,
at 4-8). The District Judge further confirmed that Gooden had
received a copy of the Indictment and the Superseding
Indictment in this case and that Gooden had discussed the
charges therein, and the case in general, with her attorney.
(Id. at 8). When asked if she was satisfied with the
advice and the representation her attorney had provided her,
Gooden answered, “[y]es, sir.” (Id.).
The Court informed Gooden that it had before it a Plea
Agreement and a sealed supplement to that agreement, and
questioned Gooden extensively to ensure she understood all of
the terms contained therein. (Id.). The Court
specifically asked Gooden if she had read the Plea Agreement,
if she had discussed the terms of the Plea Agreement with her
attorney, if she understood the terms of the Plea Agreement,
and if she had personally signed the Plea Agreement; Gooden
answered in the affirmative to each of the Court's
questions. (Id. at 9). The Court directed the
Government to provide the essential terms of the Plea
Agreement. (Id. at 10). Gooden agreed that the
Government's overview of the Plea Agreement accurately
described her understanding of her agreement with the United
States. (Id. at 13). Gooden denied that she was
forced or threatened, in any way, to plead guilty.
(Id. at 14).
Court then informed Gooden of the rights she was giving up by
pleading guilty. (Id.). Gooden confirmed she
understood she was giving up those rights by entering her
plea. (Id. at 14-26). Defendant Gooden was further
informed of the potential penalties she faced by pleading
guilty in order to ensure that she understood the maximum
penalty that could be imposed by law was a term of
imprisonment for not more than 30 years, a fine of not more
than $1 million, and a term of supervised release of not more
than 5 years. (Id.).
to the issue of sentencing, the Court explained the factors
the District Judge would consider when calculating
Gooden's sentence, including the Sentencing Guidelines
and how they operate. (Id. at 16-22). The Court
informed Gooden that, after the plea but before sentencing, a
Presentence Report (“PSR”) would be prepared by
the U.S. Probation Office and that she would have the
opportunity to review it with counsel and file any objections
she may have to its contents. (See id.). Gooden was
advised that the District Judge would rule on her objections
to the report, if any, prior to sentencing and then determine
what the applicable Sentencing Guidelines range should be.
significance to Gooden's claim for relief under §
2255, the Court advised her that any sentence recommended in
the Plea Agreement was not binding. (Id. at 22-23).
The Court expressly informed Gooden that if the sentence
ultimately imposed on her by the Court was different from
what she expected, she would not be able to withdraw her
Court: All right. Now, I do want to remind you also that
while you might be able to appeal the sentence under the
circumstances we've just discussed, ordinarily you
wouldn't be able to withdraw from your plea agreement.
For example, if your attorney's prediction or your belief
about your guidelines were to be incorrect, that wouldn't
ordinarily be a reason to withdraw from your plea agreement.
Also, if the sentence that's imposed in your case would
be more severe than you expect, or longer than you expect,
while you might be able to appeal the sentence, generally
that would not be a reason to withdraw from the plea
agreement. And you understand that as well?
Gooden: Yes, sir.
(Id. at 22-23). After the colloquy, the Court
concluded that Gooden was fully competent and capable of
entering an informed plea. (Id. at 30-31). The Court
further found that the plea of guilty was a knowing and
voluntary plea, supported by an independent basis in fact
containing the essential elements of the offense charged in
Count 1 of the Superseding Indictment. (Id. at 31).
As such, the Court accepted the plea and adjudged Gooden
guilty of Count 1. (Id.).
Gooden's rearraignment and prior to her sentencing
hearing, the Probation Office prepared the PSR. The PSR
contained a review of the facts of the case and provided
recommended calculations under the Sentencing Guidelines.
Although it adopted each of the parties' calculation
recommendations, the PSR assessed 2-level increases to the
base offense level for relocation and identity theft as well
as a 3-level adjustment for Gooden's supervisory role
under the Sentencing Guidelines, resulting in a Total Offense
Level 7 points higher than the recommended calculations in
the Plea Agreement.
calculated Gooden's Total Offense Level to be 27.
(See PSR, at 16 ¶ 47) (citing U.S.S.G. §
2B1.1(a)(1)). Along with the parties' four stipulations-a
base offense level of 7, a maximum14-level increase for an
offense involving a monetary loss of between $550, 000 and
$1.5 million to be argued by the United States, a 2-level
increase based on an offense involving more than 10 victims,
and a 3-level reduction for acceptance of responsibility-the
PSR recommended additional increases. (See PSR, at
16 ¶ 47). The PSR recommended a 2-level increase for
Defendant Gooden's participation in relocating the scheme
to another jurisdiction pursuant to § 2B1.1(b)(10)(A)
(“Relocation Enhancement”), and a 2-level
increase because the offense involved the unauthorized
transfer or use of any means of identification unlawfully to
produce or obtain any other means of identification or the
possession of 5 or more means of identification that
unlawfully were produced from, or obtained by the use of,
another means of identification pursuant to §
2B1.1(b)(11)(C)(i)-(ii) (“Means of Identification
Enhancement”). (Id.). These increases resulted
in a Final Base Offense Level of 27. Further, the PSR
recommended a 3-level adjustment for Defendant Gooden's
managerial and/or supervisory role in the offense pursuant to
§ 3B1.1(b) (“Supervisory Role Enhancement”).
(Id. at 16-17 ¶¶ 50, 54). This, combined
with a 3-level reduction for timely acceptance of
responsibility, meant Defendant Gooden's Total Offense
Level was 27. Id.
also calculated Gooden's Criminal History Category under
U.S.S.G. Chapter 4. (See PSR, at 17-20). The U.S.
Probation Office's analysis of Gooden's background
and criminal history yielded a criminal history score of 2;
however, 2 points were added pursuant to § 4A1.1(d)
because Gooden committed this offense while under a criminal
justice sentence, raising her criminal history score to 4.
This placed Gooden in a Criminal History Category of III.
(Id. at 18). Based on Gooden's Total Offense
Level of 27 and Criminal History Category of III, her
recommended Sentencing Guidelines range was 87 to 108 months
of imprisonment under the Sentencing Table. (Id. at
22 ¶ 86; see also U.S.S.G. § 5(A)).
February 11, 2016, defense counsel submitted detailed
objections to the PSR. (R. 343). Counsel objected to the
2-level increase pursuant to the “Means of
Identification Enhancement” under U.S.S.G. §
2B1.1(b)(11), as well as the 2-level increase pursuant to the
“Relocation Enhancement” under §
2B1.1(b)(10)(A). (See id.). Counsel also sought
additional time to consider whether to file an additional
basis for objections to the PSR, stating that Defendant
“is considering one additional objection relating to
the amount of the intended loss that the undersigned
continues to research and investigate[.]” (R. 344).
More time was necessary “to determine whether this
other potential objection is meritorious.”
(Id.). Counsel ultimately chose not to file an
additional objection based upon his review of the law and
facts. (See R. 481-1, at 4).
the parties' briefing on objections to the PSR, the Court
held a lengthy evidentiary hearing on March 22 and 23, 2016,
wherein defense counsel, in addition to the objections to the
PSR previously submitted (see R. 343), objected to
the 3-level Supervisory Role Enhancement recommended by the
PSR. (See R. 365; R. 366; R. 434, at 169-93).
Rejecting defense counsel's objections, the Court held
that the Supervisory Role Enhancement of U.S.S.G. §
3B1.1 and the Relocation Enhancement of § 2B1.1(b)(10)
were properly applied to Gooden. (See R. 434, at
198). Based on the testimony and other evidence presented
during the hearing, the Court further concluded that the
correct intended loss amount attributable to Defendant Gooden
totaled $1, 084, 196.75; this amount fell within the range
recommended by the PSR, as well as the loss stipulated to in
the Plea Agreement. (See R. 434, at 90). The Court
Court: So when I look at this information, when I look at all
of the other information that has been presented through the
exhibits tendered by the United States, the Court is to make
a reasonable estimate. And in this particular case the
information that has been presented in order to do that is
quite extensive. It's much more extensive than the Court
often has available in these cases. And the Court will,
therefore, accept the evidence submitted and does conclude
that the loss amounts attributable to each of these
defendants, the intended loss amounts, the intended for each
of these defendants, is accurately reflected[.]”
Id. at 92.
the evidentiary hearing, Gooden's counsel filed a
combined Sentencing Memorandum and Motion for a Downward
Variance. (R. 369). Therein, Gooden's counsel argued that
the Criminal History Category of III recommended by the PSR
“over represents the seriousness of [Gooden's]
criminal history” and should be adjusted to a Criminal
History Category of II “which would have the effect of
reducing her sentence to 78 months[.]” (Id. at
5-6). Counsel further argued that, although the parties'
Plea Agreement stipulated to a maximum 14-level increase
based upon the amount of intended loss attributable to
Defendant, this amount “is significantly higher than
the actual pecuniary harm resulting from the full scope of
the criminal activity at issue” which counsel contended
was $205, 683.10. (Id. at 4). Counsel cited case law
in support of his argument that “an offense level
[that] substantially overstates the severity of the
offense” calls for an “encouraged basis for
departure” at sentencing. (Id. (citing
United States v. Roen, 279 F.Supp.2d 986, 990 (E.D.
Wis. 2003)); Koon v. United States, 518 U.S. 81
(1996) (internal citations omitted). Because of the disparity
between the calculations for intended and actual loss,
defense counsel requested the Court apply “a slight
downward variance” and impose a sentence of 60 months
rather than the 87 to 108 months recommended by the PSR.
(Id. at 5).
March 31, 2016, Gooden appeared with counsel for sentencing.
(R. 375). Gooden confirmed to the Court that she received a
copy of the PSR and reviewed it with her counsel. (R. 480, at
2-3). The Court heard from counsel for the United States and
defense counsel regarding what an appropriate sentence should
be in light of the circumstances. The Defendant also
allocuted. The Court took up the arguments raised by defense
counsel's sentencing memorandum. (R. 369). Rejecting
counsel's arguments, the Court adopted the PSR, including
its Sentencing Guidelines calculations, along with the
Court's findings made at the evidentiary hearing. (R.
480). The Court sentenced Gooden to 97 months of
incarceration with a 5-year term of supervised release to
follow, a $100 special assessment, and restitution in the
amount of $205, 683.10. (R. 399).
to her waiver of appeal in the Plea Agreement, (see
R. 378, at 5), Gooden did not file a direct appeal. Defendant
did file a pro se Motion to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody pursuant to
28 U.S.C. § 2255. (R. 470). The United States filed a
Response on May 17, 2017. (R. 481). Defendant filed a Reply
on June 20, 2017 (R. 484), and by leave of the Court filed a
Supplemental Reply on July 18, 2017. (R. 492). Defendant
seeks for the Court to conduct an evidentiary hearing
(see R. 470, at 3), and for the Court to grant her
leave to withdraw her guilty plea. (R. 492, at 3). In support
of her claim for relief, Defendant Gooden asserts she
received ineffective assistance of counsel. (R. 470).
Motion, Gooden asserts six grounds in support of her claim
that she received ineffective assistance of counsel.
Specifically, Gooden alleges her counsel performed
deficiently by: (1) failing to file a “motion for
venue” for any acts that were not committed in
Kentucky; (2) failing to file a direct appeal as to the
2-level increase for offenses involving 10 or more victims
pursuant to U.S.S.G. § 2B1.1(b)(2)(A); (3) failing to
advise that the “statutory” guidelines could
increase once the PSR was prepared; (4) failing to argue the
intended loss figure substantially overstates the seriousness
of the offense; (5) failing to argue during the sentencing
hearing that the 3-level upward adjustment for Gooden's
managerial and/or supervisory role in the offense pursuant to
§ 3B1.1(b) did not apply to her; and (6) failing to
object to the $1, 084, 196.75 attributable to her as the
intended amount of loss pursuant ...