United States v. Taylor

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE

         Movant is Gregory A. Taylor (“Taylor”) who is proceeding pro se. On July 19, 2018, Taylor filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. ECF No. 297. After being directed by the Court to respond, the Government filed a response to this Motion. ECF No. 316.

         The Motion was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case. The Court has reviewed the Motion and the response; and based upon that review, the Court recommends this Motion be DENIED.

         1. Procedural Background:^[1]

         On September 18, 2013, Taylor was named in Counts One, Sixteen, Seventeen, Eighteen, Twenty-Five, Thirty-Four and Thirty-Five of a thirty-five-count Indictment filed in the Western District of Arkansas, El Dorado Division. ECF No. 1. Count One charged Taylor with conspiracy to defraud the United States; Counts Sixteen, Seventeen and Eighteen of the Indictment charged him with wire fraud; Counts Twenty-Five, Thirty-Four, and Thirty-Five charged Taylor with aggravated identity theft. Id.

         On June 25, 2014, the Grand Jury returned a 48 count Superseding Indictment that named Taylor in the same counts as the original Indictment plus Counts Thirty-Six through Forty-Eight. ECF No. 99. Count Thirty-Six of the Superseding Indictment charged Taylor with submitting false claims; Counts Thirty-Seven through Forty-Two charged Taylor with wire fraud; and Counts Forty-Three through Forty-Eight charged Taylor with aggravated identity theft. Id.

         On December 28, 2015, Taylor appeared with counsel before the Honorable Susan O. Hickey for a change of plea hearing. ECF No. 174. A written plea agreement was presented to the Court that set forth the terms of Taylor's agreement to plead guilty to Count One of the Superseding Indictment. ECF No. 175. The Court accepted Taylor's plea and ordered a Presentence Investigation Report (“PSR”). ECF No. 174.

         Subsequently, the Probation Office issued Taylor's final PSR. ECF No. 233. The PSR found Taylor's base offense level was set at 6 and he received a 14-point increase for the actual loss he caused the IRS to suffer and a 2-point increase for using a special skill. Id. at ¶¶ 36, 37, and 39. The PSR also assessed a 2-point increase for the offense involving 10 or more victims, 2-points for the use of sophisticated means, and 3-points for his role in the offense as a manager or supervisor. Id. at ¶¶ 38, 38a, and 40. This resulted in a Total Offense Level of 26, following a three-level reduction for acceptance of responsibility. Id. at ¶¶ 44-45. Taylor's criminal history score was determined to be 1, which resulted in a criminal history category of I. Id. at ¶¶ 60, 61. Taylor's statutory maximum term of imprisonment was 10 years and based on a Total Offense Level of 26 and a Criminal History category of I, his advisory Guidelines range was 63 to 78 months imprisonment. Id. at ¶¶ 105, 106.

         On June 12, 2017, Taylor appeared before the Honorable Susan O. Hickey for sentencing. ECF No. 232. At the conclusion of the hearing, the Court sentenced Taylor to 66 months imprisonment, with credit for time served in federal custody, 3 years supervised release, a $100.00 special assessment, and $1, 274, 163.84 in restitution. ECF No. 234. The judgment was entered on June 14, 2017. Id. Taylor waived his right to directly appeal his conviction and sentence as a part of the Plea Agreement. ECF No. 175 ¶ 7.

         On July 19, 2018, Taylor filed the instant pro se Motion under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence, along with a memorandum brief in support thereof. ECF No. 297, 298. The Court appointed counsel to represent Taylor and directed the United States to file a response to the Motion to Vacate, Set Aside, or Correct Sentence. ECF No. 300. Appointed counsel filed a notice that no supplement to the Motion would be submitted. ECF No. 309. The Government responded (ECF No. 316), and this Motion is now ripe for consideration.

         2.Applicable Law:

         A § 2255 motion is fundamentally different from a direct appeal. The Court will not reconsider an issue, which was decided on direct appeal, in a motion to vacate pursuant to § 2255. See United States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005); Dall v. United States, 957 F.2d 571, 572 (8th Cir.1992) (“Claims which were raised and decided on direct appeal cannot be re-litigated on a motion to vacate pursuant to 28 U.S.C. § 2255 .”).

         “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

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