Bah v. United States of America

Filing 9

REPORT AND RECOMMENDATIONS denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Mohammed Bah. Objections to R&R due by 9/10/2015. Signed by Magistrate Judge G. R. Smith on 8/27/15. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATE SBORO DIVISION
MOHAMMED BAH,
Movant,
V.

UNITED STATES OF AMERICA,

Case No. CV615-002
(underlying CR6 13-010)

Respondent.

REPORT AND RECOMMENDATION
Mohammed Bah, proceeding pro Se, moves under 28 U.S.C. § 2255
for a reduction in his sentence. He claims that his attorney's
ineffectiveness resulted in an illegally enhanced sentence. Doc. 34•1 The
government opposes. Doe. 42. Because the Court properly applied the
contested sentencing enhancement, Bah's counsel performed
competently and his motion should be denied.
I. BACKGROUND
On March 11, 2013, Bah went to a Swainsboro, Georgia Wal-Mart
and tried to purchase electronics with fake gift cards imprinted with

1

All citations are to the criminal docket and page numbers are those assigned by the
Court's docketing software.

stolen credit card numbers. Doe. 38 at 39; Pre-sentence Investigation
Report ("PSI") ¶

4•2

He acted suspiciously and ultimately was arrested.

Doe. 38 at 39. In his car in the Wal-Mart parking lot, police found two
computers containing 53 stolen card numbers, a stack of blank cards,
and a machine to imprint the numbers on the blanks. PSI 16. At the
time of his arrest, he had used eighteen of the 53 numbers to make
$15,521.25 in purchases. Id.
Bah pled guilty to possession of fifteen or more unauthorized credit
card access devices pursuant to a plea agreement with the government.
Does. 28, 32. The PSI set a base offense level of 6 under the Sentencing
Guidelines. PSI ¶ 18. The amount of intended loss -- calculated at
$383,318.19 based on the total credit limit for the 53 card numbers in
Bah's possession at the time of his arrest -- increased that by twelve
more levels.

Id. at IT 6-9, 19. With other modifications, the PSI

calculated his total offense level to be 22. Id. at 155.
Bah did not object in writing to the facts or Guidelines calculations
in the PSI. See PSI Addendum ("The defendant has no objections to the
2

The Court culls the background facts from the PSI because it provides the most
comprehensive view of what transpired and because Bah never objected to the PSI's
factual content (or its application of the Sentencing Guidelines), either at his
sentencing hearing, see doc. 41, or in the PSI's Addendum.
2

[PSI]."); doe. 41 (transcript of sentencing hearing). The sentencing
judge nevertheless asked whether Bah had any "disagreement or
objection" to the PSI; Bah replied "No, sir." Doe. 41 at 6. The district
judge adopted the PSI as written and sentenced Bah to 55 months'
imprisonment. Id. at 6, 14. Consistent with the appeal waiver in his
plea agreement, Bah did not appeal.' Bah timely filed the present motion
on January 12, 2015. Doe. 34.
II. ANALYSIS
Bah complains that his counsel provided ineffective assistance by
failing to file timely written objections to the PSI, failing "to cite case law
in defense," and failing "to preserve or perfect" the loss calculation issue
for appeal. Doe. 34 at 4. To address that argument, however, the Court
first must look at his second claim -- that the district court plainly erred
in calculating the intended loss enhancement because Bah only used
eighteen of the 53 card numbers found on his computer, id. at 5; doe. 43
at 2-4, for if it fails, then so too does claim one.

The plea agreement also contained a collateral attack waiver barring, among other
things, § 2255 motions. See doc. 32 at 4-5. The government declines to rely on the
waiver since the plea colloquy arguably focused solely on Bah's direct appeal waiver.
See doc. 6 at 2 n. 2.
3

A. Intended Loss Enhancement
The Sentencing Guidelines recommend enhancing sentences in
fraud cases based on the amount of loss, which they define as "the
greater of actual loss or intended loss." U.S.S.G. § 2B1.1(b)(1) & cmt.
3(A). "'Intended loss' (I) means the pecuniary harm that was intended
to result from the offense; and (II) includes intended pecuniary harm
that would have been impossible or unlikely to occur. . . ."

Id. at cmt.

3(A) (ii). In cases like this, involving stolen credit cards, the credit limit
of the stolen cards may be used to calculate the intended loss absent
clear evidence that a defendant intended to steal only a lesser amount.

See United States v. Nosrati-Shamloo, 255 F.3d 1290, 1291 (11th Cir.
2001) ("[O]nce a defendant has gained access to a certain credit line.. . a
district court does not err in determining the amount of the intended loss
as the total line of credit to which Defendant could have access, especially
when Defendant presents no evidence that he did not intend to utilize all
of the credit available on the cards."); see also United States v. Oates, 122
F.3d 222, 226 n. 5 (5th Cir. 1997) (fraudulent endorsement of a financial
instrument demonstrates intent to gain access to the funds it represents

4

and it is the "access to funds [that] is dispositive" in determining the
amount of intended loss).
The only evidence presented at sentencing here showed that Bah
intended to use all the stolen card numbers to their respective limits.
When he was arrested at Wal-Mart, Bah's car -- which was in the WalMart parking lot -- contained two computers with 53 card numbers,
blank credit cards, and a machine that could imprint numbers on those
cards. PSI ¶ 5, 7. Those items, and their proximity to Bah as he actually
used the stolen card information to make illegal purchases, show ready
access to all 53 cards and thus an intent to use them to the extent of
their credit limits. See Nosrati-Shamloo, 255 F.3d at 1292 (defendant
stole mail and applied for credit cards using the stolen information; court
properly calculated intended loss as the total available credit on the
stolen cards, even though government introduced no evidence showing
that defendant maxed out any given card). By contrast, no evidence
exists (because Bah introduced no evidence to the contrary) suggesting
that Bah intended to use less than the full amount on each card. See id.
at 1291.

5

Bah argues that he can only be held responsible for the eighteen
cards he actually used and the $15,521.25 in charges he actually made.
See doe. 7 at 4 ("The government provided a list of 53 individuals that
were victims but . . . only 18 victims actually suffered losses."). But that
ignores § 2131.1(b)(1)'s clear message that "loss" in this context means
"the greater of actual loss or intended loss." Id. at cmt. 3(A) (emphasis
added); see also Nosrati-Shamloo, 255 F.3d at 1291 ("If the intended loss
due to the offense is greater than the loss actually caused, the court may
use the amount of the intended loss for sentencing purposes."); United
States v. Pemberton, 479 F. App'x 264, 269-70 (11th Cir. 2012) (district
court did "not err in determining the amount of the intended loss as the
total line of credit to which [the diefendant could have access").
Calculating the enhancement based on intended loss instead of the loss
Bah actually caused thus did not violate § 2131.1(b)(1).
Bah also asserts that there was "no evidence that defendant
intended to cause the amount of loss provided in the [PSI]." Doc. 35 at 3.
That's just not true, if for no other reason than Bah possessed the stolen
card numbers and presented no evidence suggesting he intended to use
them for less than their full credit limits. See Nosrati-Shamloo, 255 F.3d

M
.

at 1292; Pemberton, 479 F. App'x at 269-70 (intended loss properly
calculated as credit limits of two fraudulently obtained cards simply
because defendant had access to the cards). Bah not only possessed the
card numbers, but his car, parked right outside the store where he used
the fake gift cards, also had in it blank cards and a machine to imprint
the numbers on the blanks. PSI ¶ 5. Again, mere possession of the
stolen numbers -- much less in such close proximity to Bah's commission
of a crime using some of the numbers and with the physical ability to
create more fake cards using the others -- is evidence that he intended to
max out the cards. See United States v. Edmondson, 349 F. App'x 511,
516-17 (11th Cir. 2009) (calculating intended loss using total line of
credit acceptable "when the actual charges made against the cards were
less, the evidence was circumstantial and unclear about whether
defendant knew the actual credit limits on the cards, and when no
evidence shows that Defendants intent was something other than to
make use of the full line of credit"); United States v. Stetson, 202 F.
App'x 449, 451 (11th Cir. 2006) (same).' Absent contrary evidence
Bah also obliquely suggests that, because he made factual objections to the PSI and
its enhancement recommendation, the government failed to satisfy its burden to put
forward "sufficient and reliable evidence to prove the necessary facts." See doe. 2 at
5 ("When the government seeks to apply enhancements.. . over a defendant's factual
7

(which Bah has never presented), and given that Bah made no objection
to the PSI until this § 2255 motion, his twelve level intended loss
enhancement was proper.'

objections, it has the burden of introducing . . . evidence to prove the necessary facts.
But as the sentencing hearing transcript, not to mention the PSI Addendum,
reflects, Bah never objected to any aspect of the PSI. Regardless, as noted above the
government put forth sufficient evidence to show that Bah intended to max out the
53 stolen cards in his possession.
.").

The cases Bah cites are not to the contrary. In United States v. Lopez, the
defendant, unlike Bah, objected to the PSI's loss calculation and asserted that he
should only be held responsible for the stolen cards in his possession at the time of
arrest rather than card numbers found on a co-defendants computer. 549 F. App'x
909, 912-13 (11th Cir. 2013). Because the government offered no evidence tying
Lopez to the co-defendant's cards, the court sustained the objection and vacated the
intended loss enhancement. Id. Here, by contrast, not only did Bah fail to object,
but, unlike Lopez, he possessed all 53 cards at the time of his arrest. PSI Ii 5-8.

United States v. Diallo, a case with an arrest scenario remarkably similar to Bah's
(just substitute Wegman's for Wal-Mart), reversed an intended loss calculation based
on the total credit limit of all cards in the defendant's possession, but only because
the district court, in the face of defendant's objection, made no factual findings as to
whether he intended to use the total credit limit of the stolen cards. 710 F.3d 147,
152-53 (3d Cir. 2013). Diallo did not, however, hold that the facts alleged would not
support the intended loss enhancement. Instead, it held only that when faced with a
defendant's objection and evidence to the contrary, the government had to come
forward with some proof of defendant's intent beyond mere possession of stolen card
numbers. Nosrati-Shamloo implies the same. See 255 F.3d at 1291 (intended loss
enhancements based on total credit limit not erroneous where "defendant presents
no evidence that he did not intend to utilize all of the credit available on the cards").
Even if the argument had legs, Bah procedurally defaulted it by not raising it on
direct appeal. See Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)
(movants under § 2255 "generally must advance an available challenge to a criminal
conviction or sentence on direct appeal or else [are] barred from presenting the claim
in a § 2255 proceeding"); Stone v. Powell, 428 U.S. 465, 478 n.10 (1976) (28 U.S.C. §
2255 will not be allowed to do service for an appeal). Nevertheless, the Court
addresses the merits of the argument because it plays into the success or failure of
Bah's ineffective assistance claim.
E]

B. Ineffective Assistance of Counsel (IAC)
Bah also claims that his attorney provided ineffective assistance by
not objecting to the intended loss enhancement. To prevail on that claim
he must establish two things: (1) "counsel's performance was deficient,"
meaning it "fell below an objective standard of reasonableness," and (2)
"the deficient performance prejudiced the defense."

Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). To satisfy the deficientperformance prong, Bah must show that his attorney made errors so
serious that he was not functioning as the counsel guaranteed by the
Sixth Amendment. Id. at 687.
Failing to make meritless arguments, like the one Bah makes about
his intended loss enhancement, cannot be deficient performance. Again,

Strickland requires that counsel make an error (and a serious one at
that).'

Id. at 687. As discussed above, however, the intended loss

calculation argument Bah makes had no chance of success. Counsel's
"failure" to make that losing argument could not have been error and
thus was not deficient performance.
6

"Error," both in everyday parlance, and in the context of an JAC claim, means "an
act that through ignorance, deficiency, or accident departs from or fails to achieve
what should be done." Merriam-Webster Online Dictionary, http://www.merriamwebster.com/dictionary/error (last visited August 21, 2015).
F
IC

Moreover, as the government correctly notes (doe. 42 at 8), Bah
offers no evidence that his attorney should have marshalled
demonstrating that he intended to steal less than the full credit limits
from the 53 stolen cards in his possession. The burden to put forward
such proof was Bah's, not the government's.

See Edmondson, 349 F.

App'x at 517 ("Under Nosrati-Shamloo, it was Edmondson's burden to
present some other type of evidence 'that tended to show that [s]he did
not intend to use all of the credit available on the cards. . . . Because she
failed to present any such evidence, the district court did not clearly err
in its intended loss calculation."). In the absence of that evidence Bah's
counsel could not deficiently perform by refusing to make a baseless
intended loss calculation argument. 7

' Needless to say, Bah also suffered no prejudice from counsel's failure. Meritless
arguments by definition have no chance of success. Hence, no reasonable probability
exists that, but for counsel's failure to make an intended loss calculation argument,
"the result of the proceeding would be different." Strickland, 466 U.S. at 694; see
also United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (defense counsel
"was not ineffective in failing to recognize this issue, as a lawyer's failure to preserve
a meritless issue plainly cannot prejudice a client").

10

III. CONCLUSION
Bah's § 2255 motion (doc. 34) should be DENIED. 8 Applying the
Certificate of Appealability ("COA") standards set forth in Brown v.
United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the
Court discerns no COA-worthy issues at this stage of the litigation, so no
COA should issue. 28 U.S.C. § 2253(c)(1). And as there are no nonfrivolous issues to raise on appeal, an appeal would not be taken in good
faith. Thus, in forma pauperis status on appeal should likewise be
DENIED. 28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED thisp7ay of August,
2015.
UKITEID STATES
JUDGE
SOUTHERN DISTRICT OF GEORGIA

8

Furthermore, Bah is not entitled to an evidentiary hearing since the record shows
that under no circumstances is he entitled to relief. See Rosin v. United States, 786
F.3d 873, 877 (11th Cir. 2015) ("[D]istrict court[s are] not required to grant a
petitioner an evidentiary hearing if the § 2255 motion "and the files and records of
the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. §
2255(b).").
11