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Taylor v. United States

United States District Court, E.D. Missouri, Eastern Division

June 18, 2018

MARY TAYLOR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner Mary Taylor's motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence. Petitioner pled guilty to one count of preparing a false income tax return in violation of 18 U.S.C. § 7206(1) and was sentenced to six months' imprisonment and one year of supervised release. She claims that her counsel was ineffective in not objecting to the inclusion in the Presentence Investigation Report (“PSI”) of criminal conduct that was the basis of charges the government dismissed in return for her guilty plea, and in not discussing with Petitioner the waiver of her right to appeal; that the prosecutor knowingly “committed errors” in the PSI and did not “disclose all discovery”; and that Petitioner was improperly sentenced based on the above-noted conduct in the PSI. For the reasons set forth below, the motion will be denied.

         BACKGROUND

         Petitioner was charged on May 8, 2013, by superseding indictment with one count of conspiracy to prepare false income tax returns, and four counts of aiding and abetting the preparation of a false income tax return, all in violation of 26 U.S.C. § 7206(2). United States v. Taylor, No. 4:12CR00373 AGF, ECF No. 200. The charges arose out of the activities of Petitioner, who was a tax preparer at a Mo' Money Taxes franchise, and two other employees of the franchise, in the preparation of federal tax returns for 47 individuals that falsely claimed educational tax credits, resulting in the loss to the government of approximately $352, 000.

         On August 23, 2013, the day trial was to begin, Petitioner entered into a Plea Agreement pursuant to which she agreed to plead guilty to a one-count second superseding information charging her with making and subscribing one false federal income tax return for which she was the taxpayer, resulting in the loss to the government of $9, 000, and the government agreed to dismiss all charges against her in the superseding indictment. The written Plea Agreement, which Petitioner signed, stated that she understood that she faced a penalty of three years' imprisonment and a one year of supervised release on the charge to which she was pleading guilty. Id. ECF No. 308.

         The Plea Agreement also stated that Petitioner understood that the United States Sentencing Guidelines would be used to determine, for sentencing purposes, the Total Offense Level and the Criminal History Category applicable in her case. The Plea Agreement stated that the government believed that the conduct alleged in the superseding indictment was “relevant conduct” for purposes of the base offense level under the Guidelines, and based on that conduct, the government recommended a base offense level of 18 because the tax loss to the government exceeded $200, 000 but was less than $400, 000. The government recommended that two levels should be added because Petitioner was in the business of preparing tax returns, and three levels should be deducted for Petitioner's acceptance of responsibility. This resulted in a recommendation by the government of a total offense level of 17. The Plea Agreement stated that Petitioner did not agree with this recommendation and reserved her right to contest whether she was culpable with respect to the charges that were dismissed. Petitioner agreed that her total offense level would be no higher than 17. The Plea Agreement stated that the Court was not bound by the government's Guidelines analysis. Id.

         The Plea Agreement also included the following provision:

         7. WAIVER OF APPEAL AND POST-CONVICTION RIGHTS:

a. Appeal: The defendant has been fully apprised by defense counsel of the defendant's rights concerning appeal and fully understands the right to appeal the sentence under Title 18, United States Code, Section 3742.
(2) Sentencing Issues: In the event the Court accepts the plea, accepts the U.S. Sentencing Guidelines Total Offense Level agreed to herein, and, after determining a Sentencing Guidelines range, sentences the defendant within or below that range, then, as part of this agreement, the defendant hereby waives all rights to appeal all sentencing issues other than Criminal History. Similarly, the Government hereby waives all rights to appeal all sentencing issues other than Criminal History, provided the Court accepts the plea, the agreed Total Offense Level and sentences the defendant within or above that range.
b. Habeas Corpus: The defendant agrees to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to Title 28, United States Code, Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel.

Id. ECF No. 308 at 5-6.

         At the plea hearing, on July 24, 2013, Petitioner was 49 years old. She had a college degree, and prior employment in accounting, business, information technology, the tax industry, and trucking. Id. ECF No. 386 at 2-2. Petitioner testified that she had the opportunity to discuss the Plea Agreement with her attorney, that she had reviewed it and discussed it with her attorney before signing it, and that she understood its terms. Petitioner acknowledged her understanding that her sentence would be impacted, to some degree, by the Sentencing Guideline. The Court explained that a PSI would be prepared by the Probation Office that would include a recommended Guidelines calculation. The Court told Petitioner she would get a copy of the PSI and have an opportunity to file objections, as long as they were not inconsistent to what she agreed to in the Plea Agreement. Petitioner expressly represented that she was not promised any particular sentence. The Court reviewed the government's Guideline calculations contained in the Plea Agreement, which included relevant conduct that was the basis of the dismissed charges, and Petitioner acknowledged that she understood. Id. ECF No. 386 at 23-27. The Court noted that the Plea Agreement did not include an agreed-upon sentencing range. Petitioner acknowledged that she understood that she could be sentenced to three years' imprisonment, and that if she were sentenced to prison, she would not be released on parole. The Court accepted Petitioner's guilty plea as knowing, intelligent, and voluntary. Id. at 36.

         The disclosure copy of the PSI stated that losses to the government associated with the conduct underlying the dismissed charges was relevant conduct in establishing the government's recommended base offense level of 18. The PSI did not recommend adding two levels because Petitioner was in the business of preparing taxes, but subtracted three levels for Petitioner's acceptance of responsibility and timely notifying the government of her intent to enter a guilty plea, for a total offense level of 15. The PSI set forth in some detail the conduct of Petitioner and her two co-workers at Mo' Money Taxes. Petitioner's criminal history category was zero, resulting in an advisory Guidelines range of 18 to 24 months' imprisonment. The PSI noted that had Petitioner been convicted of the ...


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