Thomas v. United States of America
Filing
10
ORDER denying 5 --motion for entry of default; denying 1 --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER JUDGMENT against Thomas and to CLOSE this case. Signed by Judge Steven D. Merryday on 6/30/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.
CASE NO. 8:16-cr-88-T-23AEP
8:16-cv-3142-T-23AEP
BRIAN THOMAS
/
ORDER
Thomas moves under 28 U.S.C. § 2255 (Doc. 1) to vacate and challenges
the validity of his convictions for one count of both conspiracy to commit theft of
government funds and the theft of government funds, for which offenses he is
imprisoned for thirty months.
Rule 4, Rules Governing Section 2255 Cases, requires a preliminary review
of the motion to vacate. Section 2255 requires denial of the motion without a
response if the “motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief . . . .” Accord Wright v. United States, 624 F.2d 557,
558 (5th Cir. 1980)1 (finding the summary dismissal of a Section 2255 motion was
proper “[b]ecause in this case the record, uncontradicted by [defendant], shows that
he is not entitled to relief”); Hart v. United States, 565 F.2d 360, 361 (5th Cir. 1978)
(“Rule 4(b) [Rules Governing § 2255 Proceedings], allows the district court to
1
Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued
before October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc).
summarily dismiss the motion and notify the movant if ‘it plainly appears from the
face of the motion and any annexed exhibits and the prior proceedings in the case
that the movant is not entitled to relief . . . .’”). See United States v. Deal, 678 F.2d
1062, 1065 (11th Cir. 1982) (citing Wright and Hart). Thomas contends that his
sentencing range was calculated incorrectly because he did not receive a minor role
reduction and that trial counsel rendered ineffective assistance by not moving for a
minor role reduction. Thomas is not entitled to a minor role reduction.
FACTS2
Brian Thomas conspired with others to convert U.S. Treasury
checks to cash. These checks were either the product of Stolen
Identity Refund Fraud (SIRF) or simply stolen. The stolen
checks were either real refunds or were Social Security checks
(e.g., disability). In order to convert the checks, the identities of
real people were stolen, typically in the form of a person’s
name, including in the form of a falsified signature.
Brian Thomas opened a Wells Fargo bank account, over which
he alone had signature authority.
Brian Thomas opened a Chase bank account, over which he
alone had signature authority. This was a business account,
“2Xtreme Production & Management,” which is Brian
Thomas’ production company. (Brian Thomas is a truck driver
and, on the side, a DJ.).
On November 16, 2012, K.T. (doing business as T&T Photos)
opened a Bank of America account, over which he had sole
signature authority. Checks given to Brian Thomas were
deposited into K.T.’s account.
Beginning at least as early as December 2012, Indel Montfleury
was involved with SIRF and stealing checks from the U.S. Post
Office serving Forrest Hills (zip codes: 33612 and 33613).
2
Because Thomas contends that his minor role entitles him to a two-level reduction, this
order recounts Thomas’s full admission of facts from the plea agreement. (Doc. 10 at 17–21)
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Montfleury was in the middle of a group of people who either
(1) filed SIRF tax returns or (2) stole tax refunds (and other
checks from the stream of mail). Louis Gonzalez, then an
employee of the Post Office, had access to the Forest Hills Post
Office as part of his job and he took the checks from the Post
Office and gave them to Montfleury. Montfleury then gave
them to Brian Thomas to negotiate.
Brian Thomas met Montfleury through J.M., a SIRF-filer.
J.M. told Montfleury that “Uncle Brian” would be in a position
to negotiate the stolen checks.
Montfleury provided stolen checks to Thomas by placing
the unendorsed stolen U. S. Treasury checks in an envelope,
then driving to Thomas’ home in Dade City, Florida, and
placing the envelope in Thomas’ mailbox. Once Thomas
retrieved the stolen checks from his mailbox, he totaled the face
value of the stolen checks and provided Montfleury with the
dollar amount he would be able to give him. This information
was communicated between Montfleury and Thomas via text
messaging, recovered from Montfleury’s phone.
Thomas had access to three bank accounts to negotiate these
stolen checks. From February 2012 through July 2012, 37 U.S.
Treasury federal tax refund and Social Security checks totaling
$188,845.85 were deposited into Brian Thomas’s Wells Fargo
account. Thomas’ business is not a registered Money Service
Business (MSB). Thomas’ account was eventually frozen.
The second bank account was opened on November 16, 2012,
at Bank of America in the name of K.T., doing business as
T & T Photos. From January 2013 through July 2013, 14 U.S.
Treasury federal tax refund checks, totaling $71,425.88 were
deposited in this account through various ATM machines in
Pasco County, Florida, one of which was made payable to
Brian L. Thomas at his home address for a tax refund in the
amount of $10,524.73, dated March 1, 2013, while 11 of the
14 checks were made payable to individuals with zip codes of
33612 or 33613, which were serviced by the Forest Hills Post
Office in Tampa, Florida. These checks (zip codes: 33612 and
33613) were identified as ones given to Brian Thomas by lndel
Montfleury.
The third bank account was opened on August 15, 2013, at JP
Morgan Chase Bank in the name of Brian Lamont Thomas,
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dba 2Xtreme Production & Management Service. Thomas
was the sole signatory on this account.
The individuals whose identities were stolen ranged in age
with the oldest living victim being born in 1911. Nine of the
people whose identities were stolen lived in New York, North
Carolina, Tennessee, Ohio, Michigan, Georgia, and even
Alaska. Four of the people live in the greater Tampa-area.
One of the victims, M.C., an elderly woman living in Pinellas
County, Florida, explained to law enforcement how, when she
received her Social Security checks in the mail, she would keep
them on her dresser in her home until she needed money to pay
a bill. It was when she was ready to pay a bill that she noticed
she was missing one of her checks. She immediately contacted
the Social Security Administration and reported that her check
was missing. A U. S. Treasury check for Social Security
benefits in the amount of $1,097.00 made payable to her, dated
May 23, 2012, was deposited in Thomas’ Wells Fargo bank
account on May 29, 2012. She did not give her Social Security
benefits checks to anyone nor authorize anyone to cash them
on her behalf.
R.W. was an employee of Hillsborough County, Florida.
Her federal tax refund check in the amount of $2,478.00 was
deposited into Thomas’ Bank of America account on July 15,
2013. At that time, R.W. was living in a residence within the
33612 zip code, that is, one that is serviced by the Forest Hills
Post Office. R.W. does not know Thomas or his conspirators
and did not authorize them to cash her check and in fact
reported the tax refund check missing when it did not arrive in
her mail. She did not give her tax refund check to anyone nor
authorize anyone to cash it on her behalf.
In addition, conspirator S.D.M. had access to the mail for zip
code 33710, which is, among others, the same zip code as
identified on the address of the M.C. on certain U.S. Treasury
checks. S.D.M. has been stealing mail from Pinellas County
addresses and negotiating them through Brian Thomas and
others.
Brian Thomas’s legitimate occupation(s) involve serving
as a truck driver. As such, he travels across state lines. The
investigation identified a convenience store that is also an MSB
in Denham Springs, Louisiana, a neighboring city of Baton
Rouge, that deposited a Social Security benefits check in the
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amount of $1,097.00 made payable to M.C. (St. Petersburg, FL
33710-1640), dated June 27, 2012. This check was reported
stolen to the SSA. Between April 2012, and September 2012,
this convenience store deposited $447,200.62 in U.S. Treasury
checks from the Tampa Bay area. It does not appear that the
checks so deposited were legitimate. Analysis of Thomas’
cellular telephone records from November 2011 through June
2013 revealed Thomas was in regular and frequent contact with
a mobile phone number in Jackson, Louisiana, a neighboring
city of Baton Rouge.
Brian Thomas is connected to at least 51 either stolen or
SIRF-related checks that were negotiated either directly or
indirectly by Brian Thomas. The victims had their identities
stolen either (1) when the legitimate checks were stolen from a
Post Office, a false signature for the victims affixed to the back
of the checks, and then deposited; or (2) when their identities
were used to file fraudulent tax returns, false signatures affixed
to the back of the checks, and then deposited. Total loss to the
United States attributable to Brian Thomas is at least
$260,271.73.
PLEA AGREEMENT
Thomas’s conviction is based on a negotiated plea, in which he “expressly
waives the right to appeal defendant’s sentence on any ground, including the ground
that the Court erred in determining the applicable guidelines range,” except for three
inapplicable exceptions. (Doc. 25 at 14 in 16-cr-88) Because the plea agreement
omits waiving the right to collaterally challenge his sentence, the motion to vacate is
not barred by the appeal waiver, as Thompson v. United States, 353 Fed. App’x 234,
235–36 (11th Cir. 2009), explains:
When a valid sentence-appeal waiver containing express
language waiving the right to attack a sentence collaterally is
entered into knowingly and voluntarily, it will be enforceable
and serve to prevent a movant from collaterally attacking a
sentence on the basis of ineffective assistance of counsel.
Williams, 396 F.3d [1340,] 1342 [(11th Cir.), cert. denied,
546 U.S. 902 (2005).
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As the government concedes in its brief, the district court erred
in reading Williams to apply to sentence-appeal waivers, as
here, that do not specifically contemplate collateral attacks.
Thomas scored an Offense Level 17 (after a three level reduction for
acceptance of responsibility). Thomas’s lack of a criminal history placed him in
Criminal History Category I. Based on these factors (Criminal Offense Level 17 and
Criminal History Category I), Thomas’s advisory sentencing range was 24–30
months. Thomas’s sentence of thirty months is the high end of the guidelines.
MINOR ROLE
Section 3B1.2, United States Sentencing Guidelines, authorizes a two-level
reduction when calculating a defendant’s offense level if “the defendant was a minor
participant.” Application Note 5 describes a minor participant as “someone who is
less culpable than most other participants, but whose role could not be described as
minimal.”
First, Thomas asserts entitlement to the retroactive application of Amendment
794 to the Sentencing Guidelines, which amendment clarifies entitlement to the
minor role reduction, and alleges that counsel was ineffective for not moving for a
minor role reduction. Because he was sentenced nearly a year after Amendment 794,
Thomas’s sentence was calculated with the benefit of the clarifying amendment.
Second, although he pleaded guilty to conspiracy, Thomas was indicted
without a co-defendant and he was held accountable based solely on acts directly
attributable to him. As a consequence, a mitigating role reduction is inapplicable.
United States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006) (“When the
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relevant conduct attributed to a defendant is identical to his actual conduct, he
cannot prove that he is entitled to a minor-role adjustment simply by pointing to
some broader scheme for which he was not held accountable.”) (per curiam).
See United States v. Doniz-Galan, 646 Fed. App’x 867, 870 (11th Cir. 2016) (quoting
Alvarez-Coria). Moreover, as detailed above and as discussed below, Thomas was
not “less culpable than most participants.”
Finally, Thomas cannot show that counsel rendered ineffective assistance.
Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of
counsel claim and requires proof of both deficient performance and resulting
prejudice. A claim of ineffective assistance fails absent proof of either requirement.
Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant
makes an insufficient showing on one.”). Thomas cannot prove prejudice, even if
counsel’s not moving for a minor role reduction was somehow deficient. Thomas
admitted in his plea agreement (1) that “he alone had signatory authority” for two
of the three bank accounts that were used to defraud the government of more than
$250,000, (2) that the conspiracy involved at least fifty-one fraudulent transactions,
and (3) that he was responsible for determining both the total value of the stolen
checks and the fee to pay the co-conspirator who stole the checks. After carefully
considering the factors under 18 U.S.C. § 3553(a), which a court must consider in
fashioning a fair sentence, the district court determined that a sentence at the high
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end of the advisory sentencing range was a fair and just sentence. Counsel’s motion
for a minor role reduction, if counsel had so moved, would have failed.
Accordingly, the motion under Section 2255 to vacate the sentence (Doc. 1) is
DENIED. The motion for a default judgment (Doc. 5) is DENIED. The clerk must
enter a judgment against Thomas, close this case, and enter a copy of this order in the
criminal action.
DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Thomas is not entitled to a certificate of appealability (“COA”). A prisoner
moving under Section 2255 has no absolute entitlement to appeal a district court’s
denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must
first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” To merit a
certificate of appealability, Thomas must show that reasonable jurists would find
debatable both (1) the merits of the underlying claims and (2) the procedural issues
he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478
(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show
that reasonable jurists would debate either the merits of the claims or the procedural
issues, Thomas is entitled to neither a certificate of appealability nor an appeal in
forma pauperis.
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Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Thomas must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on June 30, 2017.
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