Velikov v. United States of America

Filing 10

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 2/16/16. (SMH)

FILED
2016 Feb-16 AM 10:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANTONIO VELIKOV,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 2:13-CV-8044-SLB
Crim. Case No. 2:12-CR-0041-SLB-JEO

MEMORANDUM OPINION
This case is presently pending before the court on petitioner’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
[Motion to Vacate]. (Doc. 1; Crim. Doc. 49.)1 Petitioner, Antonio Velikov, has filed a
Motion to Vacate, pursuant to 28 U.S.C. § 2255, asking the court for relief from his custodial
sentence and restitution order. (Doc. 1.) The court has construed the Motion to Vacate as
asserting the following grounds for relief:
1. Counsel was ineffective for agreeing to the appeal/habeas waiver
provision in the plea agreement.
2. Counsel was ineffective by “mis-representing . . . that the petitioner
was competent to read, speak, or understand the English language.”

1

Citations to documents in the court’s record in petitioner’s Motion to Vacate appear
as “(Doc. __).” Citations to documents in the court’s record in the criminal proceedings
against petitioner, Case No. 5:11-CR-00102-SLB-JEO, appear as “(Crim. Doc. __).” Page
number citations refer to the page numbers assigned to the document by the court’s CM/ECF
electronic filing system.

3. Counsel was ineffective for “[f]ailing to object at sentencing to the
total amount of ‘Loss’ to the victims, as it was impossible to be $862,478.62.”
4. Counsel was ineffective for “[f]ailing . . . to object to the number of
victims alleged.”
5. Counsel was ineffective “[a]t sentencing for failing to object to the
Court's finding of the intended loss and potential loss were identical (i.e., over
one million).”
6. Counsel was ineffective “[a]t sentencing for failing to object to the
court's only applying one means of determining petitioner's amount of
restitution.”
7. Counsel was ineffective “[a]t sentencing for failing to object to the
amount of restitution without the court's consideration of the petitioner's ability
to pay the restitution.”
8. Counsel was ineffective “[a]t sentencing for failing to object to the
court's imposition of restitution in addition to the one hundred twenty-one
(121) months of imprisonment.”
9. Counsel was ineffective “[a]t sentencing for failing to object to the
court's imposition of two punishments for the same conduct – double
jeopardy.”
(See doc. 2 at 2.) For the reasons stated below, Velikov’s Motion to Vacate is due to be
denied.
I. BACKGROUND
Velikov is a citizen of Bulgaria and was in this country illegally at the time of his
arrest. (Crim. Doc. 36 at 3, 13; Crim. Doc. 46 at 3; ) English is not his native language.
(Doc. 9 at 1.) However, he first entered the United States in 1995 and has “some fluency in
English.” (Crim. Doc. 36 at 13-14.)

2

On July 14, 2011, the Government filed a Criminal Complaint against Velikov and
his co-defendant, Mariana Biserova Pashova, charging them with access-device fraud.
(Crim. Doc. 1 at 1.) On February 1, 2012, the Grand Jury returned a five-count Indictment
charging Velikov and Pashova as follows: Count One – conspiracy to commit bank fraud
in violation of 18 U.S.C. §§ 1349 and 1344; Count Two – aiding and abetting bank fraud in
violation of 18 U.S.C. §§ 2 and 1344; Count Three – aiding and abetting access device fraud
in violation of 18 U.S.C. §§ 2 and 1029(a)(4); Count Four – aiding and abetting possession
of counterfeit access devices in violation of 18 U.S.C. §§ 2 and 1029(a)(3); and Count Five
– aiding and abetting aggravated identity theft in violation of 18 U.S.C. §§ 2 and 1028A.
(Crim. Doc. 2 at 1-7.) The Indictment also contained a Notice of Forfeiture. (Id. at 7-8.)
Shortly after the Indictment was filed, Magistrate Judge T. Michael Putnam arraigned
Velikov and Pashova on these charges. At his arraignment and, throughout the criminal
proceedings, Velikov was represented by Scott Boudreaux; Velikov had retained Boudreaux
several months before his arraignment. (Doc. 5-16 at 1.) Boudreaux was aware that Velikov
was a native Bulgarian and that English was not Velikov’s first language.

(Id.)

Nevertheless, he testified that he had no difficulty communicating with Velikov. (Id.) At
the arraignment, an interpreter was available by telephone. However, Velikov told the court
that such an interpreter was not necessary:
THE COURT: This is in the Matter of United States of America v.
Antonio Velikov, and that is case number 2:12-CR-41-SLB.
Are you Antonio Velikov?
3

THE DEFENDANT: Yes, sir.
THE COURT: Mr. Velikov, we have available to you an interpreter to
translate proceedings this morning. If you need the assistance of the
interpreter, certainly she is available. Mr. Boudreaux has indicated that you
do not believe that you need the assistance of the interpreter, but certainly
that’s up to you.
Do you think that you need the assistance of the interpreter?
THE DEFENDANT: No.
THE COURT: You do not?
THE DEFENDANT: No.
THE COURT: Then I want to thank and I will excuse the interpreter.
Thank you very much for being available. We’ll proceed then without the
interpreter. Thank you very much for being available to us.
(Crim. Doc. 51 at 2-3 [emphasis added].) The arraignment then proceeded and nothing in
the record of the arraignment indicates that Velikov was unable to fully comprehend the
proceedings due to his alleged inability to understand and communicate in English.
As part of plea negotiations, the Government offered to attempt the coordination of
a plea agreement that would bind a total of 10 federal districts with respect to the defendants’
bank fraud conspiracy. Velikov and his co-defendant faced exposure to criminal charges in
multiple federal districts. According to Boudreaux, “During plea negotiations, which were
complex due to the nature of the case, [Velikov] asked appropriate questions after reviewing
the attendant documents.” (Doc. 5-16 at 1.) Following these negotiations, the Government
and Velikov reached an agreement. (See generally Crim. Doc. 24.)

4

In this Plea Agreement, Velikov agreed to plead guilty to Counts Two, Four, and Five
of the Indictment and he agreed to “pay restitution of at least $862,478.62 to Bank of
America (jointly and severally with any convicted codefendants).”2 (Id. at 1.) In exchange,
the Government agreed to dismiss Counts One and Three and to make a sentencing
recommendation. (Id.) Also, Velikov stipulated that the facts set forth in the Plea
Agreement were “substantially correct” and could be used by the court in calculating his
sentence. (Id. at 10; see id. at 4-10.) Among the facts to which Velikov stipulated were as
follows:
1. “Based on the offenses of conviction and the stipulated offenses that
occurred in the other nine districts, VELIKOV's offenses ‘involved 250 or
more victims,’ as that phrase is used in U.S.S.G. § 2B1.1(b)(2).” (Crim. Doc.
24 at 10.)
2. “The fraud in the other nine districts resulted in an actual loss to Bank of
America of at least $862,478.62. The parties do not have an agreement
regarding the intended loss to Bank of America. (See U.S.S.G. § 2B1.1,
comment. (n.3).)” (Crim. Doc. 24 at 9 [emphasis added].)
3. At the time of his arrest, Government agents recovered approximate 340
re-encoded/counterfeit debit/credit cards of which 294 “were encoded with the
valid account numbers for Bank of America debit/credit cards. . . . Of those
294 accounts, 129 had suffered actual fraud loss totaling $74,316.50.” (Id. at
5.)
4. “In addition to Bank of America, at least one other financial institution
absorbed losses at the hands of VELIKOV and his co-schemers. During the
administrative forfeiture process concerning the property and money seized
from Rooms 319 and 320 of the Holiday Inn, a credit union outside the state

2

Velikov also consented to a forfeiture order. (Crim. Doc. 24 at 1.)
5

of Alabama lodged a successful claim of nearly $50,000 against the currency.
(Id. at 8.)
As part of the Velikov’s Plea Agreement, he indicated he understood and agreed that the
relevant conduct contained in the factual basis of his Plea Agreement would be used by this
court to determine the advisory guidelines range. (Id. at 18.) The Plea Agreement contained
a “Waiver of Right to Appeal and Post-Conviction Relief,” which provided:
In consideration of the recommended disposition of this case, I,
ANTONIO VELIKOV, hereby waive and give up my right to appeal my
conviction and/or sentence in this case, as well as any fines, restitution, and
forfeiture orders, the Court might impose. Further, I waive and give up the
right to challenge my conviction and/or sentence, any fines, restitution,
forfeiture orders imposed or the manner in which my conviction and/or
sentence, any fines, restitution, and forfeiture orders were determined in any
post-conviction proceeding, including, but not limited to, a motion brought
under 28 U.S.C. § 2255.
The defendant reserves the right to contest in an appeal or
post-conviction proceeding any of the following:
(a) Any sentence imposed in excess of the applicable statutory
maximum sentence(s);
(b) Any sentence imposed in excess of the guideline sentencing range
determined by the Court at the time sentence is imposed; and
(c) Claims of ineffective assistance of counsel.
The defendant acknowledges that, before giving up these rights, the defendant
discussed the Federal Sentencing Guidelines and their application to the
defendant's case with the defendant's attorney, who explained them to the
defendant's satisfaction. The defendant further acknowledges and understands
that the Government retains its right to appeal where authorized by statute.

6

(Id. at 13-14.) Velikov signed below this provision, indicating that he “fully [understood]
the foregoing paragraphs” and that he “knowingly and voluntarily enter[ed] into this waiver.”
(Id. at 14.)
On June 25, 2012, this court held a change of plea hearing with Velikov and his codefendant, Pashova. As that hearing began, the following occurred:
THE COURT: We’re here this afternoon in the case of United States
of America versus Antonio Velikov and Mariana Biserova Pashova, CR-1241-S. Are the defendants fluent in English? I don’t know what their
nationality is. Are they Americans, or what is their nationality[?]
MR. THREATT [Pashova’s counsel]: My client is a United States
citizen[], Your Honor. She’s completely fluent and literate in English.
THE COURT: I’m sorry, fluent in English?
MR. THREATT: Fluent and literate in English.
THE COURT: Mr. Boudreaux?
MR. BOUDREAUX: My client is not a United States citizen. He is
from Bulgaria. But, in my opinion, he is fluent in English and is able to read[,]
write[,] and understand the English language.
(Crim. Doc. 46 at 3.)
During the plea colloquy, the court communicated with Velikov in English. Velikov
responded appropriately to the court’s questions and at no time did he demonstrate that he
was unable to fully comprehend the proceedings. During this hearing, the following
occurred:
THE COURT: Mr. Velikov, . . . if anything is said here today that you
do not fully understand, I want you to interrupt the proceedings and either ask
7

me to clear it up for you or allow you an opportunity to speak in private with
your lawyer.
Do you understand, Mr. Velikov?
DEFENDANT VELIKOV: Yes, ma’am.
...
THE COURT: It's not uncommon for pleas of guilty to be offered in
reliance on a plea bargain or plea agreement between the defendant, the
defendant's attorney and the U.S. Attorney's Office.
Plea bargains or plea agreements are permissible, but they are not
binding on the court. In other words, it is the judge who makes the final
decision as to an appropriate sentence. But when a defendant is entering a plea
of guilty in reliance on a plea bargain or plea agreement, then the court needs
to know the terms of that agreement.
So, at this time, I'm going to ask the Assistant U.S. Attorney to state for
the record the pertinent terms of the plea agreement[s] that have been filed in
your respective cases. . . .
...
MS. ATWOOD: May it please the court, the defendants each have
agreed to plead guilty to Counts Two, Four and Five of the indictment in this
case, to pay restitution of at least $862,478.62 to the Bank of America jointly
and severally with one another and to consent to an order of forfeiture in the
amount of $74,316.50.
They also have agreed . . . to waive certain rights to direct appeal or
later collateral attack of the conviction or sentence later imposed in this case.
...
MS. ATWOOD: And, in exchange for this, the government has agreed
to dismiss Counts One and Three of the indictment at the time of sentencing.
The plea agreement is a little unusual, Your Honor, in that . . . it binds nine

8

federal districts in addition to this one. So I don't know if you wanted me to
mention those districts at this time.
THE COURT: That would be good. I did read it, but why don't you
read it into the record. It binds them as to this instant conduct but not as to tax
liability is my understanding?
MS. ATWOOD: Correct, Your Honor. And the districts are the
Eastern, Middle and Western Districts of North Carolina, the Middle and
Southern Districts of Florida, the Eastern District of Virginia, the Eastern and
Middle Districts of Tennessee and the District of South Carolina.
Your Honor, our recommendation at the time of sentencing is outlined
on Pages 11 through the top of Page 13 of the plea agreements. The
government will recommend that each of the defendants be awarded an
appropriate reduction in offense level for acceptance of responsibility, that the
defendants be sentenced to a term of imprisonment that is within the Guideline
range, the low end of the range . . . and then we will recommend obviously the
restitution be made and that the defendants pay their assessment fee and the
other general terms that we recommend at the time of sentencing.
...
THE COURT: All right. Mr. Boudreaux, on behalf of your client, is
there anything you need to add to the statements of the Assistant U.S. Attorney
concerning the pertinent terms of the plea agreement?
MR. BOUDREAUX: No, ma'am.
...
THE COURT: Mr. Velikov and Ms. Pashova, you've each heard the
Assistant U.S. Attorney outline the pertinent terms of your respective plea
agreements. Do any of you have anything you need add to her statements so
that I know everything you are relying upon in entering a plea of guilty? Mr.
Velikov, do you have anything you need to add?
DEFENDANT VELIKOV: No, ma'am.
...
9

THE COURT: The plea agreements also contain a section entitled
“Waiver of Right to Appeal and Post-Conviction Relief.” In this section of
the plea agreement, you are each giving up some important constitutional
rights.
Specifically, you're giving up the right to appeal your convictions and
sentences either by way of a direct appeal or by way of what's called a habeas
corpus petition pursuant to [28 U.S.C. § 2255] subject to only three limitations:
One, if I imposed a sentence above the applicable statutory maximum
sentence; two, if I imposed a sentence above the Sentencing Guideline range;
or, three, if you have any kind of claim for ineffective assistance of counsel.
But do you understand, with those three exceptions, you're waiving your
right to appeal your conviction and sentence either by way of a direct appeal
or by way of what's called a habeas corpus petition? Do you understand, Mr.
Velikov?
DEFENDANT VELIKOV: Yes, ma'am.
...
THE COURT: And as the Assistant U.S. Attorney pointed out, you all
have agreed that the court can take into consideration in sentencing conduct
that occurred in other jurisdictions, including amounts due in restitution and
relevant conduct for purposes of determining the Guidelines.
Do you understand essentially you are pleading guilty in this district,
but conduct and criminal acts you committed in other districts are going to be
taken into consideration by the court and the probation office in determining
what the appropriate sentence should be?
Do you understand that, Mr. Velikov?
DEFENDANT VELIKOV: Yes, ma'am.
...
THE COURT: Other than the plea agreement that we have just
discussed in your respective cases, has anyone promised you anything or
10

threatened you in any way in order to induce you to enter a plea of guilty, Mr.
Velikov?
DEFENDANT VELIKOV: Yes, ma'am.
THE COURT: You have been threatened?
DEFENDANT VELIKOV: No.
THE COURT: Let me say it again: Other than what we've just
discussed, has anyone promised you anything or threatened you in any way in
order to induce you to enter a plea of guilty?
DEFENDANT VELIKOV: No, ma'am.
...
THE COURT: Is there anything that prevents either of you from
understanding anything I am saying to you here today, Mr. Velikov?
DEFENDANT VELIKOV: No, ma'am.
...
THE COURT: I'm going to ask the defendants, Mr. Velikov, Ms.
Pashova, each of you to listen carefully to what the Assistant U.S. Attorney is
going to say. She is now going to outline for you and for me briefly certain of
the facts she would expect the government to prove should this case proceed
to trial.
If, while she is speaking, she says anything that is not true or that you
do not believe the government can prove, I want to you interrupt her and let me
know.
Do you understand, Mr. Velikov?
DEFENDANT VELIKOV: Yes, ma'am.
...

11

THE COURT: All right. Ms. Atwood.
MS. ATWOOD: Your Honor, at all relevant times, Regions Bank and
the Bank of America were each insured by the Federal Deposit Insurance
Corporation. In the early morning hours of May 20th, 2011, police in Hoover,
Alabama, arrested Ms. Pashova and Mr. Velikov for attempting to place a
skimmer . . .
...
MS. ATWOOD: The police arrested both defendants for attempting to
place a skimmer, which is a credit or debit card reader and information storage
device, on an ATM [at] a Regions Bank. The Hoover Police Department
recovered the skimmer, and they contacted the U.S. Secret Service.
After learning that the pair had rented rooms 319 and 320 at the Holiday
Inn Birmingham Airport, agents obtained a federal search warrant for those
rooms. During the execution of that search warrant, agents seized over
$50,000 in U.S. currency, which was mostly in denominations of $20 U.S.
Federal Reserve notes bound in $1,000 increments. The $1,000 bundles were
held together by rubber bands and were inside of plastic bags. Some of the
plastic bags were wrapped in what appeared to be blue painters tape.
Agents also found four laptop computers, a magnetic stripe encoder that
could be used to write stolen debit or credit card information on to new
counterfeit debit or credit cards, a camouflaged skimmer identical in
appearance to the one seized by the Hoover police at the time that the police
arrested Ms. Pashova and Mr. Velikov and electronics and computer
accessories that are tools of the trade for individuals who illegally harvest debit
and credit card data through skimming devices and then use that information
to create counterfeit access device cards.
And, Your Honor, the parties stipulate that this – as a term of plea
agreement [–] stipulate that these items taken together meet the definition of
device-making equipment as that term is used in [18 U.S.C. 1029(e)(6)] and
the corresponding section of the Sentencing Guidelines.
Your Honor, the government would further prove that in one of the two
hotel rooms agents found approximately 150 re-encoded counterfeit debit and
credit cards. In the second room[ ], agents found approximately 190 such
12

counterfeit cards. Among the approximately 340 counterfeit cards recovered
were 294 that were encoded with valid account numbers for Bank of America
debit/credit card numbers.
Later investigation revealed that the aggregate account balance for
those 294 accounts at the time of the fraud was $1,383,246.82. Of those 294
accounts, 129 had suffered actual fraud loss, and that amount totaled
$74,316.50.
...
Although Ms. Pashova and Mr. Velikov were arrested in the act of
attempting to install a skimmer at a Regions Bank, that bank and its account
holders apparently suffered no loss. This seems to be because the Hoover
Police Department officers apprehended the pair in the earliest stages of their
work in the Northern District of Alabama.
Additional investigation has revealed, however, that Ms. Pashova and
Mr. Velikov were part of an organized group of individuals who traveled from
state to state placing skimmers and recording devices, sometimes cameras, on
ATM machines belonging to various financial institutions.
With this equipment, Ms. Pashova, Mr. Velikov and their other
co-schemers harvested account information and personal identification
numbers from debit/credit cards used at those ATM machines. Group
members then would use equipment like that found in rooms 319 and 320 of
the Holiday Inn to create counterfeit debit or credit cards encoded with the
stolen information.
Once the counterfeit debit and credit cards had been created, members
of the group were able to use the cards often in combination with the stolen
PIN information to steal money from the accounts associated with the genuine
debit or credit cards.
The group of which Ms. Pashova and Mr. Velikov were members
targeted ATMs associated with various financial institutions across the
southeastern United States over a period of almost three years.
Beginning on or before August [3], 2008, and continuing until a few
weeks before their apprehension in Hoover, Alabama, the skimming group
13

placed skimmers and PIN recording devices on Bank of America ATMs in at
least nine other federal districts, the Eastern, Middle and Western Districts of
North Carolina, the Middle and Southern Districts of Florida, the Eastern
District of Virginia, the Eastern and Middle Districts of Tennessee, and the
District of South Carolina.
Bank of America has confirmed the following information regarding
those skimming events and the associated amounts of money lost as a result of
[the stolen data. Between August 3, 2008 and August 30, 2009], the group that
included the defendants affected two ATMs, each of which was in a different
city, in the Eastern District of North Carolina.3 In that district, the aggregate
loss was $30,569.91.
Between September [13, 2008], and September [14, 2008], the group
skimmed at one ATM in the Middle District of North Carolina resulting in an
aggregate loss of $42,207.12. From September [21], 2008, through August
[22,] 2010, the group skimmed at six different ATMs that were spread across
four cities in the Western District of North Carolina, the aggregate loss in that
district was $154,625.28.
Between November 15, 2008, and May 10, 2009, the group skimmed
at five different ATMs spread across four cities in the Middle District of
Florida. The aggregate loss in that district was $61,439.27.
Between February [15], 2009, and May [8,] 2010, the group affected
and skimmed at five different ATMs spread across five cities in the Southern
District of Florida. The aggregate loss in that district was $149,539.16.
On September [14,] 2009, the group skimmed at one ATM in the
Eastern District of Virginia. The aggregate loss associated with that event was
$12,208.96. Between September [6], 2010 and March [20], 2011, the group
skimmed at seven different ATMs spread across three cities in the Middle
District of Tennessee, resulting in a total loss in that district of $231,491.02.
On November [24], 2010, the group skimmed at a single ATM in the
Eastern District of Tennessee, resulting in a loss in that district of $18,303.
Between February [12,] 2011, and March [13,] 2011, the group skimmed at

3

(See Crim. Doc. 24 at 7.)
14

two different ATMs in two cities in the District of South Carolina, resulting
in a loss in that district of $162,094.90.
The aggregate loss associated with these skimming events, Your Honor,
was totaled to $862,478.62. That amount includes the $74,000 associated with
the cards recovered in Birmingham.
...
MS. ATWOOD: In some cities, [Ms.] Pashova and Mr. Velikov
conducted multiple skimming events against the same Bank of America ATM
machine. On all but three occasions, the skimming device placed on each
Bank of America ATM by Ms. Pashova, Mr. Velikov and their co-schemers
ultimately resulted in money being taken from the accounts of Bank America
customers, and Bank of America eventually absorbed that loss.
...
MS. ATWOOD: The parties stipulate and agree to the following
matters as terms of this plea agreement:
Based on the facts above, the government could establish that Ms.
Pashova, Mr. Velikov and their co-schemers committed bank fraud against the
Bank of America in the Eastern, Middle and Western [D]istricts of North
Carolina, the Middle and Southern Districts of Florida, the Eastern District of
Virginia, the Eastern and Middle Districts of Tennessee and the District of
South Carolina if separate criminal cases were pursued in those nine other
districts.
Ms. Pashova and Mr. Velikov have waived venue as to prosecution and
sentencing of these offenses in those other nine districts, and they consent to
sentencing on these bank fraud offenses in the Northern District of Alabama
in this case, CR-2:12-41. The fraud in the other nine districts resulted in an
actual loss to Bank of America of at least $862,478.62. The parties do not
have an agreement regarding intended loss to Bank of America. That issue
would be reserved for sentencing.
All of the facts and circumstances surrounding the fraud by Ms.
Pashova and Mr. Velikov . . . and their co-schemers in the other nine districts

15

can be used as relevant conduct for purposes of this plea agreement, including
its restitution provisions.
And based on the offense of conviction and the stipulated offenses that
occurred in the other nine districts, Ms. Pashova and Mr. Velikov's offenses
involve 250 or more victims as that phrase is used in the Sentencing
Guidelines.
THE COURT: All right. Mr. Velikov and Ms. Pashova, you've heard
the Assistant U.S. Attorney outline briefly certain of the facts she would
expect the government to prove should this case proceed to trial. Are those
facts substantially correct, Mr. Velikov?
DEFENDANT VELIKOV: Yes, ma'am.
...
THE COURT: You are each not required to enter your pleas of guilty,
and you are free at this time to withdraw . . . your pleas of guilty and re-enter
not guilty pleas.
Have either of you heard anything here today that causes you to want
to reconsider your decisions to enter a plea of guilty, Mr. Velikov?
DEFENDANT VELIKOV: No, ma'am.
...
THE COURT: Do you each still desire to enter your respective pleas
of guilty, Mr. Velikov?
DEFENDANT VELIKOV: Yes, ma'am.
...
THE COURT: The court finds your pleas of guilty are freely and
voluntarily entered, and the requisite factual basis [for] your plea[s] exist[ ].
The pleas of guilty to Counts Two, Four and Five of the indictment are
accepted by the court. . . .

16

...
THE COURT: I’ll say this: I will reserve more statements for
sentencing, but reading this, it's an extraordinarily serious crime, and I don't
know what you're facing, but I'm glad it's more than three months. . . .
...
I just want to let you know that – and I don't know what their
background is, but even if this is their first offense, even if this is their first
time, if they've never been caught. I find this a really extraordinarily serious
crime.
MR. BOUDREAUX: The Guidelines are extreme.
THE COURT: Well, they should be. I'm not saying I won't vary, but
I'm sure they're extraordinarily high with 862 – what are they, approximately?
MR. BOUDREAUX: 90 months, plus two years.
THE COURT: I don't know what I will do, but that doesn't shock me
for this crime by any means. I'm not saying what I will do. I will have to see
the whole presentence, but it doesn't surprise me that they're that high. . . .
(Crim. Doc. 46 at 6-12, 14-15, 20, 29-36, 38, 40-44 [emphasis and footnote added].)
Following the colloquy, the Probation Office prepared a Presentence Investigation
Report [PSR], to which Velikov objected. (Crim. Docs. 29, 36.) He argued that the
Probation Office had erroneously calculated the loss amount as exceeding $1,000,000, and
it had erroneously determined that there were 250 or more victims. (Crim. Doc. 29 at 1, 3.)
The Government filed a Sentencing Memorandum, addressing Velikov’s objections to the
PSR, and, thereafter, the Probation Office filed an Addendum to the PSR, which was
responsive to Velikov’s objections. (See generally Crim. Doc. 34, doc. 36-1.)

17

The court held sentencing hearings for Velikov and Pashova on October 22, 2012.
(See Crim. Docs. 47, 50.) Pashova’s hearing immediately preceded Velikov’s sentencing
hearing and Velikov’s counsel was present throughout Pashova’s sentencing hearing. (Crim.
Doc. 50 at 3, 5.) The court noted on the record that Velikov’s attorney had adopted the
arguments and objections made during Pashova’s sentencing hearing. (Id. at 5.) With regard
to the sentencing enhancements based on the loss amount and the number of victims, the
court held as follows:
[THE COURT:] The actual loss to Bank of America is $862,478.62.
The parties stipulated in the factual basis of the plea agreement that another
credit union suffered a loss of approximately $50,000. As pointed out again
in the probation office’s response[,] in Sentencing Guideline Section 2B1.1,
Comment Note 3(F)(i) sets a minimum loss amount of $500 per card or
counterfeit credit cards and access devices.
In the search of the two defendants’ hotel rooms, the authorities
recovered approximately 340 counterfeit access device cards, 129 of which
had suffered actual losses. Applying the $500 minimum loss to the remaining
211 remaining cards, which have not suffered an actual loss, results in an
additional $105,500 under Sentencing Guideline 2B1.1. Therefore, the total
of the actual losses, plus the loss under the $500 rule, exceeds a million
dollars.4
...
Any additional argument with regard to the intended loss objection that
you made in your objections?

4

The amount of the actual loss to Bank of America, $862,478.62, plus the amount of
the credit union’s loss, $50,000, plus $500 each for the 211 cards, $105,5000, equals
$1,017,978.62.
18

MR. BOUDREAUX: Judge, as you noted, I was present for almost the
whole entirety of the last hearing and, obviously, don’t expect you to go back
through the same repetitive arguments. If you just would maybe note in the
record –
...
[THE COURT:] With regard to the second objection for enhancement
for victims, again, you were here for the argument with regard to that. As I
stated in the last hearing, after hearing argument from both counsel – and,
again, unless you want to make additional argument, I will accept that you've
adopted those arguments made in the last hearing.
Let me make my findings again, which I accept the probation officer’s
response to your objections and agree – not accept, I agree with it. They note
that Sentencing Guidelines 2B1.1, Comment Note 4(E) states “For purposes
of Subsection B(2) in a case involving means of identification that victim
means any victim as defined in Application Note 1 or any individual whose
means of identification was used unlawfully or without authority.”
When the agent searched the defendant’s hotel rooms, they found
approximately 340 counterfeit cards. Each of those cards represented an
individual whose means of identification was used unlawfully or without
authority, i.e., their unique electronic identification number, address or routing
code was used unlawfully or without authority to produce a counterfeit access
device.[ ] Therefore, the number of victims is appropriately calculated in the
presentence report.
I’m not going to go on whether or not they were victims, the other
argument that you make. That objection is also overruled.
Any other argument you want to make?
MR. BOUDREAUX: Not with respect to those two points.
THE COURT: All right. Any other objections?
MR. BOUDREAUX: No other objections.

19

THE COURT: In compliance with Justice Breyer's majority opinion in
U.S. versus Booker, this court, while not bound to apply the Guidelines, has
consulted them and taken them into account on the issue of the appropriate
range of sentence to be imposed.
In that regard, the court notes that, in his plea agreement, the defendant
waived any right he may have for a jury determination of the facts in
accordance with the Supreme Court's decision in U.S. versus Booker, and the
defendant admitted certain facts that bear upon the computation of his offense
level under the Guidelines.
The court having ruled on the objections and overruled the objections
that affect the Guidelines, the court adopts the factual statements contained in
the presentence report and makes specific findings that the Guidelines Offense
Level is 30. The Criminal History Category is I. The Advisory Guideline
Imprisonment Range applicable to Counts Two and Four is from 97 months
to 121 months. The Guideline term of imprisonment for Count Five is two
years to be imposed consecutively to any other term of imprisonment imposed
on the defendant, including the terms of custody imposed in Counts Two and
Four. The fine range is from $15,000 to $1 million. The Guideline term of
supervised release is two years to five years. However, the court notes that
pursuant to Section 5D1.1(c), the court ordinarily should not impose a term of
supervised release in a case of which supervised release is not required by
statute and the defendant is a deportable alien who likely will be deported after
imprisonment. Restitution is an issue in this case.
(Crim. Doc. 50 at 4-8 [footnote added].)
Thereafter, the court imposed a custodial sentence of 97 months on Counts Two and
Four separately, with each count to be served concurrently with the other, and 24 months on
Count Five, with the sentence to be served consecutively to the term of custody imposed in
Counts Two and Four. (Id. at 15-16.) After expressly considering the factors set forth in 18
U.S.C. § 3553(a), the court found, “[T]he sentence imposed is a reasonable one in light of
the Guidelines and the factors found at 18 [U.S.C. §] 3553(a). The court concludes that the

20

sentence imposed would have been the same regardless of how the Guideline issues raised
by the defendant had been resolved.” (Id. at 16-18.) In addition to the custodial sentence,
the court “ordered [Velikov] to pay restitution of $862,478.62 with interest waived to the
Bank of America,” with payments of $25 per quarter to be paid during his custodial sentence
and the balance to be paid in full “no later than the end of the defendant’s term of
supervision,” which is five years. (Id. at 18-19, 20-21.) The court noted, [E]ven though I'm
going to order supervision, you probably will be deported and likely you will probably never
have to pay any of the restitution on this enormous fraud . . . .” (Id. at 20.)
At the close of the hearing, the court stated:
THE COURT: Although the plea agreement contained a waiver right
to appeal, and that waiver is likely valid, I always tell a defendant you have the
right to appeal the sentence imposed within 14 days if you believe that the
sentence is in violation of the law; but, again, such waivers of right to appeal
are generally enforceable.
(Id. at 23-24.) Velikov did not file a direct appeal.
On October 18, 2013, Velikov filed this Motion to Vacate. (Doc. 1; Crim. Doc. 49.)
The Motion to Vacate does not allege any grounds for relief, (doc. 1 at 4-10); however, in
his accompanying Memorandum of Law, Velikov alleges ineffective assistance of counsel
on the following grounds:
1. Counsel was ineffective for agreeing to the appeal/habeas waiver
provision in the plea agreement.
2. Counsel was ineffective by “mis-representing . . . that the petitioner
was competent to read, speak, or understand the English language.”

21

3. Counsel was ineffective for “[f]ailing to object at sentencing to the
total amount of ‘Loss’ to the victims, as it was impossible to be $862,478.62.”
4. Counsel was ineffective for “[f]ailing . . . to object to the number of
victims alleged.”
5. Counsel was ineffective “[a]t sentencing for failing to object to the
Court's finding of the intended loss and potential loss were identical (i.e., over
one million).”
6. Counsel was ineffective “[a]t sentencing for failing to object to the
court's only applying one means of determining petitioner's amount of
restitution.”
7. Counsel was ineffective “[a]t sentencing for failing to object to the
amount of restitution without the court's consideration of the petitioner's ability
to pay the restitution.”
8. Counsel was ineffective “[a]t sentencing for failing to object to the
court's imposition of restitution in addition to the one hundred twenty-one
(121) months of imprisonment.”
9. Counsel was ineffective “[a]t sentencing for failing to object to the
court's imposition of two punishments for the same conduct – double
jeopardy.”
(See doc. 2 at 2-3.)
II. DISCUSSION
A. SECTION 2255 STANDARD
This court has held that the habeas petitioner “has the burden of showing he is entitled
to relief from his sentence pursuant to 28 U.S.C. § 2255. Relief under 28 U.S.C. § 2255 is
reserved for transgressions of constitutional rights and for that narrow compass of other
injury that could not have been raised on direct appeal and would, if condoned, result in a

22

complete miscarriage of justice.” Bryant v. United States, No. 5:07-CR-0205-SLB-PWG,
2014 WL 519619, at *7 (N.D. Ala. Feb. 10, 2014)(quoting Richards v. United States, 837
F.2d 965, 966 (11th Cir. 1988) and citing LeCroy v. United States, 739 F.3d 1297, 1321 (11th
Cir. 2014) and Greene v. United States, 880 F.2d 1299, 1301 (11th Cir. 1989))(internal
quotations and citations omitted). Relief under § 2255 is limited to relief from a custodial
sentence and may not be used to challenge an order of restitution. See United States v.
Harris, 546 Fed. Appx 898, 901 (11th Cir. 2013)(citing Mamone v. United States, 559 F.3d
1209, 1211 (11th Cir. 2009)).
When a habeas petitioner has been convicted based on a plea of guilty and he makes
“statements under oath at a plea colloquy, ‘he bears a heavy burden to show his statements
were false.’”

Winthrop-Redin v. United States, 767 F.3d 1210, 1217 (11th Cir.

2014)(quoting United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988)(per curiam)). His
“solemn declarations in open court carry a strong presumption of verity.” Id. (quoting
Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Also his guilty plea waives all but certain,
well-defined claims:
After a criminal defendant has pleaded guilty, he may not raise claims relating
to the alleged deprivation of constitutional rights occurring prior to the entry
of the guilty plea, but may only raise [1] jurisdictional issues, United States v.
Patti, 337 F.3d 1317, 1320 (11th Cir. 2003), cert. denied, 540 U.S. 1149, 124
S. Ct. 1146, 157 L. Ed.2d 1042 (2004), [2] attack the voluntary and knowing
character of the guilty plea, Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct.
1602, 36 L. Ed. 2d 235 (1973); Wilson v. United States, 962 F.2d 996, 997
(11th Cir.1992), or [3] challenge the constitutional effectiveness of the
assistance he received from his attorney in deciding to plead guilty, United
States v. Fairchild, 803 F.2d 1121, 1123 (11th Cir.1986). In other words, a
23

voluntary and intelligent plea of guilty made by an accused person who has
been advised by competent counsel may not be collaterally attacked. Mary v.
Johnson, 467 U.S. 504, 508 (1984). A guilty plea must therefore stand unless
induced by misrepresentation made to the accused person by the court,
prosecutor, or his own counsel. Mary, 467 U.S. at 509, quoting, Brady v.
United States, 397 U.S. 742, 748 (1970). If a guilty plea is induced through
threats, misrepresentations, or improper promises, the defendant cannot be said
to have been fully apprised of the consequences of the guilty plea and may
then challenge the guilty plea under the Due Process Clause. Mary, 467 U.S.
at 509. See also Santo Bello v. New York, 404 U.S. 257, 92 S. CT. 495, 30 L.
Ed. 2d 427 (1971).
Caceres v. United States, No. 13-22901-CIV, 2014 WL 5761112, at *8 (S.D. Fla. Nov. 5,
2014). “The subsequent presentation of conclusory allegations unsupported by specifics is
subject to summary dismissal, as are contentions that in the face of the record are wholly
incredible.” Blackledge, 431 U.S. at 74.
Velikov’s grounds for relief are based on allegations of ineffective assistance of
counsel. “[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas
based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985).
Pursuant to Strickland, “An ineffective assistance claim has two components: A petitioner
must show that counsel’s performance was deficient, and [he must show] that the deficiency
prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003)(citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
24

Unless a defendant makes both showings, it cannot be said that the conviction
or . . . sentence resulted from a breakdown in the adversary process that
renders the result unreliable.
Strickland, 466 U.S. at 687.
“A convicted defendant making a claim of ineffective assistance must identify the acts
or omissions of counsel that are alleged not to have been the result of reasonable professional
judgment. The court must then determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent
assistance.” Id. at 690. “An attorney’s responsibility is to investigate and to evaluate his
client’s options in the course of the subject legal proceedings and then to advise the client
as to the merits of each.” Stano, 921 F.2d at 1151. However –
. . . [C]ounsel owes a lesser duty to a client who pleads guilty than to one who
decides to go to trial, and in the former case counsel need only provide his
client with an understanding of the law in relation to the facts, so that the
accused may make an informed and conscious choice between accepting the
prosecution’s offer and going to trial. To impart such an understanding to the
accused, counsel must, after making an independent examination of the facts,
circumstances, pleadings and laws involved, offer his informed opinion as to
the best course to be followed in protecting the interests of his client. The
interest underlying [a defendant’s] claim is his interest in having, before he
judges the desirability of the plea bargain, a general knowledge of the possible
legal consequences of facing trial.
Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984)(internal citations omitted).
In the context of a collateral challenge to a guilty plea, “The second, or ‘prejudice,’
requirement [of Strickland] focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process. In other words, “Where a claim of

25

ineffective assistance involves a plea agreement, to show prejudice, the defendant must show
a reasonable possibility that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial. In so doing, a defendant must demonstrate that a
decision to reject the plea bargain would have been rational under the circumstances.”
Gutierrez v. United States, 560 Fed. Appx 924, 927 (11th Cir. 2014)(quoting Padilla v.
Kentucky, 559 U.S. 356, 371 (2010) and Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
B. APPEAL WAIVER
Velikov alleges that the appeal/post-conviction relief waiver in his plea agreement is
not valid based on his lack of understanding. The court pretermits any discussion of whether
the appeal waiver is valid because each ground for relief raised by Velikov is based on
ineffective assistance of counsel, (see doc. 2 at 2-3), and such grounds are outside the terms
of the waiver, (see Crim. Doc. 24 at 13-14).
C. VELIKOV’S ABILITY TO UNDERSTAND ENGLISH
Velikov contends that his counsel was ineffective because he “[c]ontinuous[ly]
misrepresent[ed] . . . that [Velikov] was competent to read, speak, or understand the English
language.” (Doc. 2 at 2.) He also contends, “The court failed to measure my comparative
ability to speak English.” (Doc. 9 at 2.)
“A criminal defendant who relies principally upon a language other than
English has a statutory right to a court-appointed interpreter when his
comprehension of the proceedings or ability to communicate with counsel is
impaired.” United States v. Lim, 794 F.2d 469, 470 (9th Cir. 1986)(citing 28
U.S.C. § 1827(d)(1)). “‘[A] defendant is only statutorily entitled to the
appointment of an interpreter if the district court determines that the defendant
26

[or a witness]: (1) speaks only or primarily a language other than the English
language; and (2) this fact inhibits [his] comprehension of the proceedings or
communication with counsel’ or the presiding judicial officer.” United States
v. Edouard, 485 F.3d 1324, 1337 (11th Cir. 2007)(quoting United States v.
Johnson, 248 F.3d 655, 661 (7th Cir.2001)). “‘Any indication to the presiding
judicial officer that a criminal defendant speaks only or primarily a language
other than the English language should trigger the application of Sections (d)
and (f)(1) [defendant’s waiver of the right to an interpreter] of the Court
Interpreters Act .’” Id. (quoting United States v. Tapia, 631 F.2d 1207, 1209
(5th Cir. 1980)). Thus, “the trial court [has] a mandatory duty to inquire as
to the need for an interpreter when a defendant has difficulty with English.”
Id. (quoting Valladares v. United States, 871 F.2d 1564, 1565-66 (11th Cir.
1989)). “Trial courts may be put on notice of the defendant's ‘difficulty with
English’ where the defendant is ‘arraigned through an interpreter,’. . . where
the defendant ‘testifies in his own behalf through the use of an interpreter,’ .
. . where there are several places in the trial transcript where the court reporter
noted that the defendant's testimony was unintelligible, . . . or when it is
otherwise ‘clear that the defendant's communication with the court or counsel
is inhibited by language[.]’” Id. at 1338 (quotations omitted). “As a
constitutional matter, in determining whether an interpreter is needed, the trial
court must balance the defendant's rights to due process, confrontation of
witnesses, effective assistance of counsel, and to be present at his trial ‘against
the public's interest in the economical administration of criminal law.’” Id.
(quoting Valladares, 871 F.2d at 1566). Whether an interpreter is required,
pursuant to the Court Interpreters Act and as a constitutional matter, “is
committed to the sound discretion of the trial judge . . . .” Id. at 1337.
Khanani v. United States, No. 6:02-CR-171-ORL28KRS, 2009 WL 3055307, at *5 (M.D.
Fla. Sept. 24, 2009)(emphasis added).
Despite an adequate opportunity to do so, Velikov waited until this post-judgment
proceeding to raise for the first time that he did not understand the criminal proceedings
because of a language barrier. The time to raise a language barrier would be at such time as
the court could protect a defendant’s rights. “The accused must do his part to allow the
constitutional and other protections to function effectively.” Dewitt v. McDonough, No.
27

8:03-CV-856-T-30MAP, 2006 WL 2850101, at *24 (M.D. Fla. Oct. 3, 2006)(citing
Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989)).
Nevertheless, the court finds Velikov’s recent assertion of a language barrier is not
credible as this statement is rebutted by his statement to the Magistrate Judge that he did not
need the assistance of an interpreter,5 as well as his interaction with this court and counsel
and the court’s observance of Velikov throughout the proceedings. Also, counsel has
testified that he had no difficulty communicating with Velikov and that Velikov understood
the proceedings. The court finds that Velikov did not demonstrate he had difficulty with
English such that the court had a duty to inquire further into whether Velikov required an
interpreter. Because the court finds Velikov’s assertion of a language barrier is not credible,
the court finds that counsel’s performance in asserting that Velikov could understand English
was not deficient.
Therefore, the Motion to Vacate will be denied as to this Ground.
D. CALCULATION OF SENTENCING GUIDELINE RANGE
1. Loss Amount
a. Bank of America

5

The court notes that Velikov repeatedly asserts that his counsel waived the interpreter
during his arraignment. However, the transcript of that proceeding demonstrates that
Velikov, not his counsel, indicated he could proceed without an interpreter. (Crim. Doc. 51
at 2.)
28

Velikov contends that counsel was ineffective for failing to object to the actual
amount of Bank of America’s loss. He contends that the Bank of America’s loss of
$862,478.62 “is a factual, legal and financial impossibility” because ATMs only dispense
cash in $20 bills.6 (Doc. 9 at 4; see also doc. 2 at 13-14.) Whether or not this is a
meritorious objection, Velikov has waived any challenge to the amount of Bank of America’s
loss because he stipulated that the “actual loss to Bank of America” was “at least
$862,478.62” in his Plea Agreement and during the plea colloquy. (Crim. Doc. 24 at 9 [“The
fraud in the other nine districts resulted in an actual loss to Bank of America of at least
$862,478.62.”]; see also Crim. Doc. 46 at 41-42.)
“When a defendant pleads guilty, the [Government] is free to seek judicial sentence
enhancements so long as the defendant . . . stipulates to the relevant facts . . . .” Blakely v.
Washington, 542 U.S. 296, 310 (2004). Because Velikov stipulated to the amount of Bank
of America’s actual loss, the court finds counsel’s failure to object to this amount at
sentencing was not deficient performance.
The Motion to Vacate will be denied on this ground.

6

The court notes that the record does not limit Bank of America’s loss to amounts
withdrawn from ATMs. Rather, the record shows that banking customers’ personal
identifications were skimmed from ATMs, but the uses of such identifications were not
limited to cash withdrawals from an ATM.
29

b. Intended Loss – $500 per Card
Velikov argues that his counsel was ineffective because he failed to object to the
court’s determination of the amount of loss for sentencing purposes by calculating $500 per
fraudulent card found in Velikov and Pashova’s hotel rooms after their arrests, without
regard to the individual victims’ credit limit. (Doc. 9 at 5.) The court finds Velikov cannot
establish prejudice arising from counsel’s failure to object as the loss amount was properly
calculated.7
The Application Note 3(F)(i) provides, “In a case involving any counterfeit access
device or unauthorized access device, loss includes [1] any unauthorized charges made with
the counterfeit access device or unauthorized access device and [2] shall be not less than
$500 per access device.” Sentencing Guidelines § 2B1.1, Application Notes 3(F)(i) (Nov.
1, 2011). The court applied the Guideline’s Advisory Note to establish the loss amount for
sentencing purposes:
The actual loss to Bank of America is $862,478.62. The parties
stipulated in the factual basis of the plea agreement that another credit union
suffered a loss of approximately $50,000. As pointed out again in the
probation office's response[,] in Sentencing Guideline Section 2B1.1,
Comment Note 3(F)(i) sets a minimum loss amount of $500 per card or
counterfeit credit cards and access devices.
In the search of the two defendants' hotel rooms, the authorities
recovered approximately 340 counterfeit access device cards, 129 of which
had suffered actual losses. Applying the $500 minimum loss to the remaining
211 remaining cards, which have not suffered an actual loss, results in an

7

Counsel did object to the calculation of loss for purposes of sentencing.
30

additional $105,500 under Sentencing Guideline 2B1.1. Therefore, the total
of the actual losses, plus the loss under the $500 rule, exceeds a million
dollars.
(Crim. Doc. 50 at 4.) This method of calculating the loss amount for purposes of sentencing
is proper. See United States v. Torres-Bonilla, 556 Fed. Appx 875, 882 (11th Cir.
2014)(using actual loss amount for access devices for which loss could be determined and
adding “the minimum loss amount of $500 per card” for each access device for which no
actual loss information is available).
Based on the foregoing, the court finds Velikov cannot establish that he was
prejudiced by any alleged error in counsel’s failure to object to the calculation of intended
loss.8
The Motion to Vacate on this ground will be denied.
2. Number of Victims
Velikov alleges that counsel was ineffective by failing to object to the number of
victims used for sentencing purposes. (Doc. 2 at 2.) He argues:
A total of three hundred forth (340) cards seized of which two hundred
ninety-four (294) were Bank of America. The government's own Exhibit "A"
shows only one hundred thirty (130) "victims" ($74,316.50) of which
eighty-eight (88) are shown which are financially impossible to achieve the
stated "loss" via an ATM ($57,226.50). This leaves forty-two (42) possible
victims, less five (5) from Exhibit "D" showing a "0.00" balance at the time of

8

Velikov also objects to counsel’s “fail[ure] to object to the Court’s finding of the
intended loss and potential loss were identical.” (Doc. 2 at 3.) The record contains no such
finding by the court. Therefore, Velikov’s counsel was not ineffective for failing to object
to a finding that was not made.
31

the fraud, leaving (37 victims + Bank of America + one credit union )
thirty-nine (39) victims for a total loss of $17,090.00.
(Id. at 17.) The court rejects Velikov’s calculation of the number of victims.
Moreover, the court finds that Velikov cannot establish any prejudice arising from
counsel’s failure to object to the number of victims because Velikov stipulated that his
“offenses ‘involved 250 or more victims,’ as that phrase is used in U.S.S.G. § 2B1. 1 (b)(2).”
(Crim. Doc. 24 at 10.) This stipulation is binding on Velikov. “When a defendant pleads
guilty, the [Government] is free to seek judicial sentence enhancements so long as the
defendant . . . stipulates to the relevant facts . . . .” Blakely v. Washington, 542 U.S. 296, 310
(2004)
Assuming Velikov is not bound by this stipulation in the Plea Agreement, the court
finds that Velikov has not alleged facts to support his assertion that counsel did not object
to the number of victims for purposes of sentencing. Prior to sentencing, his counsel
objected to the enhancement based on the number of victims, arguing:
The government has shown only two victims in this case – Bank of America
and the credit union . . . . [T]he Application Notes make it clear that Mr.
Velikov can only be liable for the actual losses suffered. Moreover,
Application Note 3(E) states that the calculation of loss must be reduced by
“the money returned”. The government has not provided any evidence that
these alleged victims even knew that their funds were missing.
Further, these account holders were reimbursed by Bank of America
and the credit union, which are why there two institutions have claimed the full
amount of the loss and are entitled to the restitution. Based on the plain
reading of the Application Notes, account holders do not suffer any “loss”
when the accounts are reimbursed. The only victims in this case were the
banks that sustained the actual loss. Therefore . . . no additional enhancements
32

should apply because the government has proven less than 10 victims, thereby
excluding Mr. Velikov from the Specific Offense Characteristic of +6
contained in U.S.S.G. Section 2B1.1(2).
(Crim. Doc. 29 at 3-4.) The court overruled Velikov’s objections, stating:
. . . Sentencing Guidelines 2B1.1, Comment Note 4(E) states that “For
purposes of Subsection B(2) in a case involving means of identification that
victim means any victim as defined in Application Note 1 or any individual
whose means of identification was used unlawfully or without authority.”
When the agent searched the defendant’s hotel rooms, they found
approximately 340 counterfeit cards. Each of those cards represented an
individual whose means of identification was used unlawfully or without
authority, i.e., their unique electronic identification number, address or routing
code was used unlawfully or without authority to produce a counterfeit access
device.9 Therefore, the number of victims is appropriately calculated in the
presentence report.
(Crim. Doc. 50 at 6-7 [footnote added].)
The court finds that, contrary to Velikov’s assertion, his counsel actually objected to
the number of victims for purposes of sentence enhancement. Therefore, the court finds that
Velikov has not show counsel’s performance was deficient.
The Motion to Vacate on this ground will be denied.
E. RESTITUTION ORDER
Velikov argues that his counsel was ineffective for failing to object to the restitution
order. (Doc. 2 at 2.) However, “28 U.S.C. § 2255 does not offer relief from the

9

During the sentencing hearing for Pashova, the court stated: “[I]n my view, they
[individuals’ means of identification] were used. They were used by virtue of the fact that
they used these identifications to encode the cards. They weren't actually maybe all used to
get money, but they were used.” (Crim. Doc. 47 at 10.)
33

non-custodial features of a criminal sentence.” United States v. Harris, 546 Fed. Appx 898,
901 (11th Cir. 2013)(citing Mamone v. United States, 559 F.3d 1209, 1211 (11th Cir. 2009)).
“That [Velikov] couched his arguments in terms of a claim for ineffective assistance of
counsel does not affect the preclusion of this claim from a § 2255 proceeding because even
if his counsel was ineffective in this regard, he would not be entitled to relief under § 2255.”
See Heard v. United States, No. 8:12-CR-52-T-30EAJ, 2014 WL 4674314, at *7 (M.D. Fla.
Sept. 18, 2014).
Therefore, Velikov’s Motion to Vacate will be denied as to all grounds seeking relief
from the restitution aspect of his criminal sentence.
CONCLUSION
Based on the foregoing, the Motion to Vacate filed by petitioner Antonio Velikov,
(Doc. 1; Crim. Doc. 49), is due to be denied. An Order denying the Motion to Vacate will
be entered contemporaneously with this Memorandum Opinion.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing § 2255 Proceedings, provides, “The district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” The applicant for § 2255 relief “cannot take an appeal unless a circuit justice or
a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).”
Fed. R. App. P. 22(b)(1). And, the “certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

34

§ 2253(c)(2)(emphasis added).

To make a substantial showing of the denial of a

constitutional right, the applicant must show “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed further.”
Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)(citations and internal quotations omitted).
Velikov has not demonstrated that he was denied any constitutional right or that the
issues he raises are reasonably debatable and/or deserve encouragement to proceed further.
Therefore, issuance of a certificate of appealability is not warranted in this case.
DONE this 16th day of February, 2016.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

35