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United States v. Gooden

United States District Court, E.D. Kentucky, Central Division, Lexington

November 30, 2017



          Candace J. Smith United States Magistrate Judge.

         On March 21, 2017, [1] 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.


         On March 12, 2015, a federal grand jury returned a Superseding Indictment against Gooden, [2] 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.

         The 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.).

         The 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. § 2B1.1(b)(1)(H).

         A. Guilty Plea

         Based 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, [3] 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.).

         The 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).

         On 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 checks.
(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 institution.
(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).

         As part 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 sentencing.” (Id.).

         At the 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).

         The 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.).

         Moving 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. (See id.).

         Of key 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 plea:

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.).

         B. Sentencing

         Following 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.[4]

         The PSR 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.

         The PSR 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)).

         On 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).

         Following 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 specifically found:

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.

         Following 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).

         On 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).

         C. Post-Conviction Proceedings

         Pursuant 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).

         In her 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 ...

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