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Ntow v. United States

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

October 15, 2019

FELIX NTOW, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Felix Ntow's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No. 1]. The United States of America has responded to the motion, pursuant to the Court's Show Cause Order. For the reasons set forth below, the Motion to Vacate is denied.

         PROCEDURAL HISTORY

         Movant was arrested on September 14, 2015 pursuant to the federal warrant. The Federal Public Defender was appointed to represent him. On September 23, 2015, a federal grand jury returned a two count indictment alleging aiding and abetting the possession of 15 or more unauthorized or counterfeit access devices in violation of 18 U.S.C. § 1029(a)(3) and possession of device-making equipment in violation of 18 U.S.C. §1029(a)(4). A superseding indictment was filed on December 2, 2015 which added three counts of aggravated identity theft in violation of Section 1028A. Movant, through his counsel, waived his right to file pretrial motions. Judge Nannette A. Baker conducted a hearing on December 8, 2015 in which Movant was arraigned on the superseding indictment. At that time, the Court advised him of his rights and the consequences of his waiver. Movant knowingly and voluntarily waived his right to file pretrial motions.

         On January 29, 2016, counsel for Movant filed a motion requesting permission to withdraw from the case based upon Movant's assertion that he lacked confidence in the representation. The motion was granted. On February 3, 2016, new counsel was appointed. Counsel filed a motion seeking to continue the February 29, 2016 trial setting. Counsel for Movant then sought a change of plea hearing.

         Movant and his counsel appeared before this Court on April 5, 2016 for the change of plea hearing as to Counts 1, 2, and 3 of the indictment. In exchange for his plea of guilty, the government agreed to dismiss Counts 4 and 5. As the two counts charged violations of the aggravated identity theft statute, Movant's criminal exposure on the applicable sentence decreased from a maximum of 72 months incarceration to 24 months incarceration. 18 U.S.C. §§ 1028A(a)(1) and (4).

         After ascertaining that Movant was competent to proceed, he affirmed that he was “fully satisfied” with the advice and representation provided by his attorney. He also informed the Court that he understood the contents of the indictment and the range of punishment. When asked about his willingness to plead guilty, Movant affirmed that his plea was voluntary, of his own free will, and that he completely understood everything in the plea agreement. Movant also acknowledged his understanding of the terms of the plea agreement, including his waiver of non-jurisdictional and non-sentencing issues related to pretrial motions, discovery, and the guilty plea as well as his waiver of his appellate rights.

         In addition, Movant agreed with the government's recitation of facts underlying the plea. Summarizing the factual basis of the plea agreement, counsel for the government stated that:

The defendant booked a hotel room in Maryland Heights, Missouri using the name of D.A. When he arrived at the hotel, he presented a debit card ending in 5945; however, the receipt showed that the number embedded on the magnetic strip differed from the embossed on the card. Police officers were alerted and they went to the defendant's hotel room. The defendant answered the door and granted permission for the officers to enter. At that time the officers saw two computers displaying websites with credit card information. They also saw the numerous credit cards and a credit card encoder. A search of the hotel room revealed an Illinois identification document in the name of D.A., two credit card encoders, two mobile hotspot devices, a thumb drive, a New York identification card in the name of P.D. and 105 access devices. Of those devices, 58 contained magnetic strips embedded with the account numbers of others. Three of them appeared to have been issued by Green Dot; however, the account information had been issued by federally insured financial institutions to C.L., A.R. and A.H.W. There were also 35 gift cards valued at approximately $6, 350 that had been purchased by defendant and Dickens Kumi in Columbia, Missouri and locations within the Eastern District of Missouri. Mr. Akwasi Yeboah had traveled from -- I'm sorry, the defendants and Akwasi Yeboah had traveled from Columbus, Ohio to the St. Louis metropolitan area with the intention of producing and using counterfeit access devices to purchase merchandise and gift cards. Using a website that sells credit card numbers, Ntow and Kumi encoded cards with fraudulently obtained credit card information with their laptop computers, the thumb drive, and the card reader/writers. Yeboah, a resident in London, England watched as Ntow and Kumi made the devices and received four of the counterfeit cards from Kumi.

         When the Court reviewed the elements of Sections 1029(a)(3), 1029(a)(4), and 1028A, Movant agreed to, and admitted, each of the elements of conviction. The sentencing hearing concluded with a finding that the defendant entered his plea “knowingly and voluntarily waiving his right to a trial by a jury and all rights incident thereto as to each count.”

         On June 1, 2016, a presentence investigation report was filed. The government accepted the facts and calculations contained within the report. Movant filed objections. His objections included claims that Section 2B1.6 precluded application of the two level enhancement pursuant to Section 2B1.1(b)(11)(A)(ii) and (B)(i) and that the loss was less than $40, 000.00. Movant accepted the factual basis set forth in the presentence investigation report. In response to the objections, the government argued that Section 2B1.6 did not preclude application of the enhancement sought pursuant to Section 2B1.1(b)(11) because the specific offense characteristic was not based upon the transfer, possession, or use of a means of identification as prohibited by Section 2B1.6. As to the argument that the loss amount should have been based upon the average value of the gift cards that were fraudulently obtained, counsel for the government relied on United States v. Gilmore, 431 Fed.Appx. 428, 430 (6th Cir. 2011), in arguing that the intended loss was correctly calculated at $500.00 for each of the 105 counterfeit or unauthorized access devices without regard for the actual loss. As a result, a six level enhancement was applied pursuant to Section 2B1.1(b)(1)(D).

         The Court also applied the two level enhancement pursuant to Sections 2B1.1(b)(11)(A)(ii) and (B)(i) after considering the arguments of the parties and the applications. In opposing the enhancement, counsel for Movant argued:

And that is, quote, Document 154 at page one, in the case at bar, a two-level enhancement was imposed pursuant to 2B1.1(b)(11)(A) for the possession and use of an authentication feature. And Section 2B1.1(b)(11) for the production of the unauthorized and counterfeit access devices. My objection is to that two-level enhancement. From there, I go to Application Note 2, under the identity theft 2B1.6, and it says: If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for the transfer, possession, or use of a means of identification. A sentence under this guideline -- that is the AGG ID -- accounts for this factor for the underlying offense of conviction. Judge, I go back to the Government's possession and probation's position, and there's not an "or" in there, that's "and." They have to both be present. If you look at Document 135 which is the plea agreement, and you're familiar with it, as to Count One, which is an underlying offense, item number one of an element of the offense is: Possession. Same as the exclusion under the AGG ID theft. If you move to Count Two of the underlying offense, again the first element of the offense references production and it references possession. The same two issues that are "do not apply" under the AGG ID specification. Then if you go to the plea agreements in this case, and in this particular case, Judge, I want to go to the codefendants' plea agreement, which is Document Number 111, and it's page three. The underlying offense with regard to Count Three, the AGG ID theft in my client's codefendants case references: During and in relation to the crimes of mail fraud assumed a fictitious name or address in a mail fraud scream [sic], wire fraud, and access device fraud. So, in that case, that defendant plead to at least three specific underlying offenses to the AGG ID case. In our case, Judge, this is Document 135 at page three, my client pled to none, no mail fraud, no wire fraud. He pled to -- and the key word is -- production. The production under the AGG ID is the same as the production under Count One and Count Two. And the application note is very specific: Do not apply. Now beyond that, Judge, if there's an ambiguity between the underlying offenses and the AGG ID case -- it's just like baseball, the tag goes to the runner, and in this case he's the run. So I do not believe -- I believe in both of my objections, but in particular my objection when you have a [sic] application note that says do not apply, I don't think you should apply it.

         The government, however, contended that counsel for Movant erred in seeking to apply the prohibition against the “possession, transfer, and use of a means of identification” set forth in Section 2B1.6 to the type of offenses underlying the aggravated identity theft count rather than the considering the facts in light of the specific offense characteristics. After noting that neither counsel presented authority in support of their position, the Court ruled that the plain language of Section 2B1.6 did not preclude application of Sections 2B1.1(b)(11)(A)(ii) and (B)(i).

         At the conclusion of the argument, the Court determined that the total offense level was 12, and Movant had a criminal history category of I. This resulted in a guideline range of 10 to 16 months as to Counts 1 and 2 which would be consecutive to the mandatory term of incarceration of 24 months for the conviction for aggravated identity theft charged in Count 3. After consideration of the Section 3553(a) factors, the Court imposed a concurrent sentence of 10 months for Counts 1 and 2 consecutive to a 24 month sentence for Count 3, for an aggregate sentence of 34 months incarceration. Movant was advised of his appellate rights. Thereafter, the government moved to dismiss Counts 4 and 5 pursuant to the plea agreement.

         On January 6, 2017, Movant filed this Motion under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. In addition to arguing that he did not commit the criminal violations to which he pled guilty, Movant claims that his counsel rendered ineffective assistance of counsel when counsel:

1. Failed to challenge the sufficiency of the indictment;
2. Failed to raise Fourth Amendment violations;
3. Failed to successfully challenge the disputed sentencing ...

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