United States District Court, W.D. Arkansas, El Dorado Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
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
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
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.
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.
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.
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.
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.
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.
§ 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 .”).
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).