Muhammad v. United States of America
Filing
3
ORDER 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 A JUDGMENT against Muhammad and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/1/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.
CASE NO. 8:15-cr-255-T-23TGW
8:17-cv-423-T-23TGW
BOBBY MUHAMMAD
/
ORDER
Muhammad’s motion under 28 U.S.C. § 2255 to vacate (Doc. 1) challenges
the validity of his convictions both of theft of government property and of aggravated
identify theft, for which he is imprisoned for a total of ninety-four months.
Muhammad’s motion lacks merit because in the plea agreement he waived the right
to assert the grounds in the motion to vacate.
FACTS1
From at least in or around December 2011, through and
including the present, the defendant, Bobby Muhammad,
entered into a conspiracy and scheme to defraud the Internal
Revenue Service (“IRS”), a bureau of the United States
Department of the Treasury. As part of the scheme,
Muhammad, aided and abetted by others, would obtain and
possess the means of identification of third parties without their
knowledge. Muhammad, aided and abetted by others, would
electronically file and cause the filing of fraudulent federal
income tax returns using the means of identification obtained
from the identity theft victims, including their names, dates of
birth, and social security numbers. Those tax returns would
direct that fraudulent refunds be wired from the IRS to various
reloadable debit cards obtained and used by Muhammad.
1
This summary of the facts derives from the plea agreement (Doc. 35 at 17–21).
For example, H&R Block issued a reloadable debit card ending
in “9614" in the name of Bobby Muhammad on January 29,
2013. The card was delivered to 3200 E. Comanche Drive,
Tampa, Florida, an address associated with Muhammad and
his family members, including his mother. Documents provided
by H&R Block Bank show that fraudulently obtained tax
refunds were loaded onto this card including the following:
• On January 30, 2013, a return in Muhammad’s own
name was filed claiming a refund that was directed to be
loaded onto this card, but it was rejected by the IRS. The
return claimed a refund in the amount of $4879. This
return had the same characteristics of other returns
associated with Williams and Muhammad, including
same IP address, same employment information, same
income amounts, and same refund amounts, among
other things. The email address used to electronically file
Muhammad’s return was “freebricks1515@gmail.com,”
which is an email address used by Muhammad.
• On March 28, 2013, a fraudulent tax return was filed
claiming a refund in the amount of $9377. The refund
resulted from the electronic filing of a joint return using
the names of L.F. (deceased) and E. S. (also deceased).
This refund was loaded onto the H&R Block card
ending “9614" on April 17, 2013. The Virginia office of
Vital Statistics confirmed that L.F. died on January 7,
2013. E.S. died in Puerto Rico on January 14, 2013.
This return was filed using the email address “Tiffany
Williams11323@yahoo.com” and listed the address
11324 Bridge Pine Drive, Riverview, FL (Williams and
Muhammad lived together at 11323 Bridge Pine Drive,
used this neighboring address on multiple false returns,
and Muhammad was arrested on this street in 2012.)
Counts Four and Eleven[2]
• On June 15, 2013, a fraudulent tax return was filed
using the names H.M. and A.M., resulting in a refund of
$7217, which was loaded onto this card in Bobby
Muhammad’s name on or about July 17, 2013.
H.M. died on April 24, 2012 and A.M. died April16,
2012. This return [w]as filed from an IP address that is
linked to numerous other fraudulent tax returns filed by
Muhammad pleaded guilty to Counts Four and Eleven. The other thirteen counts were
dismissed.
2
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Tiffani Williams, as indicated by the email address
associated with her online accounts.
• On March 28, 2013, a fraudulent tax return was filed
using the names S.R. and R.R., resulting in a refund of
$6935 being loaded onto the card on April 10, 2013.
S.R. died on January 30, 2013, and R.R. died on
February 1, 2013. This return was filed using an email
address “Tommie1234@yahoo.com,” which is an
address associated with returns filed by Tiffani Williams.
This return listed an address of 11337 Bridge Pine Drive,
Riverview, FL. Overt Act a.1, b.1; Counts Two, Nine
• On April 13, 2013, a fraudulent tax return was filed
using the names of M.R. and S. R., resulting in a refund
of $7019 being loaded onto the card on May 1, 2013.
M.R. died on February 24, 2013, and S.R. died on
January 1, 2013.
In total, approximately $30,548.22 of tax refunds were loaded
onto this card in the defendant’s name resulting from the filing
of fourteen fraudulent refunds. Eleven of the false refunds,
including the four listed above, were filed in the names of
deceased individuals. This card was primarily used to withdraw
funds from ATMs, including:
• ATM transactions at Sun Trust in Brandon, FL, on
April 10, 2013, for three consecutive withdrawals of
$800 each or $2400 total.
• ATM transactions on April 11, 2013, at the same Sun
Trust for three consecutive withdrawals of $800 each for
a total of $2400.
• ATM transactions at a Sun Trust ATM at the Orlando
Prime Outlets on April 17, 2013, for four consecutive
withdrawals of $800 for three and $400 for the fourth,
for a total of $2800.
• ATM withdrawals at Summerfield Cross terminal
station in Riverview, FL, on April 18, 2013, for three
consecutive withdrawals of $800 for a total of $2400.
Each time funds were loaded onto the card, Muhammad or
those working with him would make ATM withdrawals at the
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same ATM locations in a manner consistent with individuals
trying to rapidly extract the proceeds of the fraud.
Agents reviewed the transaction history for the H&R Block
reloadable debit card ending in “9614" issued in the name of
Bobby Muhammad. Among other things, agents observed a
charge from “Archives.com,” which is an affiliated company of
“Ancestry.com.” These websites provide information on
deceased individuals, including personally identifiable
information or that Muhammad and his coconspirators used to
file fraudulent federal income tax returns. Records produced by
“Ancestry.com” show that the charge on the H&R Block Card
in Muhammad’s name was associated with the establishment of
an account on or about June 6, 2013, in the name of Bobby
Muhammad using email address “freebricks1515@gmail.com,”
which is an email address known to be used by Muhammad
and associated with numerous false federal income tax returns
that were filed in this conspiracy.
Investigators determined that Muhammad and his conspirators
filed fraudulent federal income tax returns using the stolen
identities of over 400 individuals to make claims for refunds
totaling approximately $3,089,219.
GROUNDS
Muhammad alleges three grounds of ineffective assistance of counsel, specifically,
that counsel failed to object to paragraphs twenty-one (intended loss) and twenty-two (actual
loss) and that counsel failed to object to the district court’s not ruling on Muhammad’s
objection to paragraph twenty-one (intended loss). Muhammad’s conviction is based on a
negotiated plea. Muhammad recognizes that, under the terms of the plea agreement, he
“waived his right to appeal his sentence on any ground, including the ground that the Court
erred in determining the applicable guidelines range pursuant to the United States
Sentencing Guidelines.” (Doc. 2 at 17) (Plea Agreement, Doc. 35 at 15)
The guidelines produced an offense level of 23 and a criminal history category V,
which establishes a sentencing range of 84–105 months. The district court varied downward
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one category because “the defendant has not been previously in custody for more than
184 days.” The district court imposed a low-end sentence of seventy months.3 Because
the resulting sentence is neither an upward departure nor above the statutorily
authorized maximum sentence, Muhammad’s waiver of the right to challenge the
guidelines sentence is controlling and the appeal waiver precludes Muhammad’s
ineffective assistance of counsel claims, as Williams v. United States, 396 F.3d 1340,
1342 (11th Cir. 2005), explains:
[A] valid sentence-appeal waiver, entered into voluntarily and
knowingly, pursuant to a plea agreement, precludes the
defendant from attempting to attack, in a collateral proceeding,
the sentence through a claim of ineffective assistance of counsel
during sentencing. [A] contrary result would permit a defendant
to circumvent the terms of the sentence-appeal waiver simply
by recasting a challenge to his sentence as a claim of ineffective
assistance, thus rendering the waiver meaningless.
See also United States v. Wilson, 445 Fed. App’x 203, 208–09 (11th Cir. 2011)
(enforcing the appeal waiver in a plea agreement and applying Wilson to dismiss the
appeal of a claim of ineffective assistance of counsel at sentencing).
Accordingly, the motion under Section 2255 to vacate the sentence (Doc. 1) is
DENIED. The clerk must enter a judgment against Muhammad and close this case.
DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Muhammad is not entitled to a certificate of appealability (“COA”). A
prisoner moving under Section 2255 has no absolute entitlement to appeal a district
Muhammad serves a total of ninety-four months because of the mandatory consecutive
sentence of twenty-four months for Count Eleven.
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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, Muhammad 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, Muhammad is entitled to neither a certificate of
appealability nor an appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Muhammad must obtain permission from the circuit
court to appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 1, 2017.
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