MUHAMMAD v. THE UNITED STATES OF AMERICA

Filing 22

MEMORANDUM OPINION FILED. Signed by Judge Jerome B. Simandle on 7/31/17. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

IBN MUHAMMAD,

HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 15-6845 (JBS)

v.
UNITED STATES OF AMERICA,

[Crim. No. 12-789 (JBS)]

Respondent.
MEMORANDUM OPINION

SIMANDLE, District Judge:
Petitioner Ibn Muhammad pleaded guilty on December 3, 2013
to one count of bank fraud, in violation of 18 U.S.C. § 1344,
and one count of theft of mail, in violation of 18 U.S.C. §
1708. On July 15, 2013, this Court sentenced Muhammad to 135
months’ imprisonment, followed by five years of supervised
release. Muhammad now seeks to vacate, set aside and correct his
sentence pursuant to 28 U.S.C. § 2255, asserting that he
received ineffective assistance of counsel in connection with
his plea negotiations and sentencing hearing. For the reasons
explained below, the Court finds that Petitioner received
constitutionally adequate representation and will deny the
petition.
1.

On December 3, 2013, Petitioner Ibn Muhammad pleaded

guilty to an Information charging him with one count of bank
fraud, in violation of 18 U.S.C. § 1344, and one count of theft

of mail, in violation of 18 U.S.C. § 1708. On July 15, 2013,
this Court sentenced Muhammad to 135 months’ imprisonment.
Relying on the Presentence Investigation Report (“PSR”), the
Court calculated that Petitioner’s total Offense Level was 26
and his Criminal History Category was VI, resulting in an
advisory guideline range under the U.S. Sentencing Guidelines
Manual (“U.S.S.G.” or “Guidelines”) of 120-150 months.
2.

In calculating Petitioner’s Offense Level at the

sentencing hearing, the Court, in agreement with the PSR,
assigned a four-level enhancement for leadership under the
United States Sentencing Guidelines Manual (“U.S.S.G.” or
“Guidelines”) § 3B1.1(a), although the plea agreement did not
contemplate a leadership enhancement; the Court found that
United States Probation Office’s PSR adequately set forth that
Muhammad was a leader and organizer of a scheme involving at
least five participants. At the same time, the Court also
determined that Petitioner was entitled to a three-level
reduction for acceptance of responsibility, coming to a final
Total Offense Level of 26. 1

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The computation of Muhammad’s TOL of 26 was driven by Count One
(bank fraud) for which the base offense level of 7 (§
2B1.1(a)(1)) was increased 14 levels for a loss of more than
$400,000 but not greater than $1,000,000 (§ 2B1.1(b)(1)(H)).
This was enhanced for 50 or more victims (§ 2B1.1(b)(2)(B)) and
for his role in the offense as an organizer or leader of the
criminal activity involving five or more participants or
otherwise extensive (§ 3B1.1(a)). Further, the Court recognized
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3.

Petitioner appealed his sentence to the Third Circuit,

principally challenging the four-level leadership enhancement.
The Third Circuit upheld Petitioner’s sentence, finding in
relevant part that the leadership enhancement was constitutional
even though Muhammad was not charged with that role in an
indictment or information; that the District Court did not err
by applying the role enhancement despite the parties’
stipulations that included no role enhancement; and that the
Government did not breach the plea agreement because it urged
the Court not to apply the role enhancement. United States v.
Muhammad, 580 Fed. Appx. 131, 136 (3d Cir. 2014).
4.

Petitioner now seeks to vacate, set aside and correct

his sentence, arguing that he received ineffective assistance of
counsel from his attorney, Assistant Federal Public Defender
Lisa Evans Lewis, in connection with his plea negotiations and
sentencing hearing. [Docket Items 1 & 6.] Petitioner’s Amended
Petition sets forth three 2 grounds for relief: (1) that his

Defendant’s acceptance of responsibility and subtracted three
points (§ 3E1.1(a) & (b)) for reasons found at the sentencing
hearing. (Tr. July 15, 2013 at 27:5-31:13.) Defendant’s Criminal
History Category of VI was uncontested, based on 19 criminal
history points arising from six prior felony convictions for
crimes including burglary, distribution of crack cocaine,
possession of cocaine, robbery, aggravated assault, and
distribution of marijuana.
2 The Amended Petition also raised an additional ground for
relief, that counsel was ineffective “for misleading defendant
to believe the court could only increase his sentence above the
guideline range for offense level 22 based upon factors NOT
3

counsel was ineffective “for failure to adversarially challenge
the government’s evidence toward leadership enhancement”
(Amended Petition at 5); (2) that his counsel was ineffective
“for failure to object to leadership role enhancement on grounds
of fairness and equity” (Am. Pet. at 6); and (3) that his
counsel was ineffective “for advising defendant to stipulate to
a four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B) where
the number of victims was actually less than 50.” (Am. Pet. at
10.)
5.

To prevail on a claim of ineffective assistance of

counsel, Petitioner must demonstrate that (1) counsel’s
performance was so deficient as to deprive him of the
representation guaranteed to him under the Sixth Amendment of
the U.S. Constitution, and (2) the deficient performance
prejudiced the defense by depriving the defendant of a fair
trial. Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013);
Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect
to counsel’s performance, her “strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable,” and are afforded high
deference from a reviewing court. Strickland, 466 U.S. at 689,
690. To show prejudice from counsel’s performance, Petitioner

found within the guidelines themselves.” (Am. Pet. at 8.)
Petitioner withdrew this claim in his Reply Brief. (Reply at 1.)
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must demonstrate that there is a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Rainey v. Varner, 603
F.3d 189, 197-98 (3d Cir. 2010) (quoting Strickland, 466 U.S. at
694).
6.

In this case, none of the “Grounds for Relief”

identified by Petitioner rise to the level of ineffective
assistance of counsel, individually or collectively.
7.

First, Muhammad asserts that his counsel provided

ineffective assistance at his sentencing hearing by not
challenging the government’s allegedly insufficient evidence for
the leadership enhancement. Petitioner received a four-level
enhancement to his Offense Level under U.S.S.G. § 3B1.1(a),
which applies where “the defendant was an organizer or leader of
a criminal activity that involved five or more participants or
was otherwise extensive.” Muhammad contends that the PSR did not
adequately establish that the “check cashers” qualified as
“participants,” or that he, as opposed to his co-defendant
Michael A. Ingalls, Jr., was a “leader,” and that his attorney
should have objected at the sentencing hearing to the imposition
of the four-level enhancement on the basis of the information in
the Report.
8.

Defense counsel’s conduct was neither deficient nor

prejudicial.

The Government, and Ms. Lewis, contend that she
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made the choice at the hearing not to object to the Court’s
sentence enhancement “because an argument against the
application of such an enhancement was not supported by the law
or the facts in the case” given the details Probation had
adduced in the PSR and Petitioner’s admissions at his plea
hearing, and Ms. Lewis would have been prevented from arguing
any such meritless position before the court under the New
Jersey Rules of Professional Conduct. (Declaration of Counsel
(“Decl.”) ¶¶ 10, 13(a).) Counsel’s strategic decisions are
entitled to a high level of deference, Strickland, 466 U.S. at
689, and the Court has no trouble finding that in this instance,
Ms. Lewis’s decision to concede the sufficiency of the evidence
in the PSR was not unreasonable “under prevailing professional
norms” where she was explicitly attempting to conform with the
bar’s rules of professional conduct. 3
9.

Moreover, Ms. Lewis’s decision to concede this point

at the sentencing hearing was not prejudicial because the Court
would have still found the enhancement applicable even if she
had argued the point. At the sentencing hearing, the undersigned

3

The Government also contends that Ms. Lewis’s concession of the
four-level enhancement may have been a strategic choice to
bolster her position on the contested three-level reduction for
acceptance of responsibility. (Gov. Br. at 10-11.) Such a
strategic choice is entitled to a high level of deference,
especially in light of her success in obtaining the reduction.
Strickland, 466 U.S. at 689.
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noted that Probation “more than adequately” set forth in the PSR
reasoning for why Muhammad “was indeed a leader, organizer, and
that there were at least five participants in the scheme,” even
after the Government argued that it had to “stand by its plea
agreement” which did not contemplate the leadership enhancement.
(Sentencing Hearing Transcript (Government’s Ex. E) at 5:8-6:9.)
Given the strength of the evidence summarized by Probation –
describing how Muhammad and Ingalls would recruit check cashers,
alter and forge checks, and instruct the check cashers what to
do in the bank and what to say to bank personnel or law
enforcement – and Petitioner’s admissions in the plea agreement
and at the plea colloquy, Petitioner cannot say that “the result
of the proceeding would have been different,” Strickland, 466
U.S. at 489, if his counsel had acted differently at the
sentencing hearing.
10.

Factually, this was not a close call. The Court of

Appeals identified Muhammad’s challenge to the § 3B1.1(a)
enhancement for leadership role as “frivolous.” United States v.
Muhammad, 580 Fed. Appx. 131, 136 (3d Cir. Sept. 24, 2014). The
Court of Appeals held that defense counsel did not fail to raise
any non-frivolous claim on appeal. Id. There was no dispute that
Ingalls and Muhammad were the organizers of a large conspiracy
to steal checks from the incoming mail of businesses and
residences, especially from curbside mailboxes on weekends. (PSR
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¶ 10.) Muhammad and Ingalls and others they supervised would
steal these checks and recruit check cashers. The illicit check
cashers were typically drug-addicted persons with valid driver’s
licenses. Muhammad and Ingalls would alter the check’s payee to
substitute the illicit check casher’s name (id.) and they would
travel with the casher to various banks where the casher would
present the check for cashing. (Id.) On successfully cashing the
altered check, the casher would keep a portion and remit the
rest to Muhammad or Ingalls. (Id.) There were over 20 check
cashers involved in this scheme (id. at ¶ 12), and the PSR
presented summaries of interviews with six of them, namely R.B.,
F.L., J.G., N.Y., D.W., and B.V. (id. at ¶¶ 13-16), most of whom
identified Muhammad as a person performing the recruitment,
check alteration, and fraudulent cashing functions.
11.

This was an extensive network directed by Muhammad and

Ingalls, extending for 15 months from September 2010 to January
2012, utilizing over 20 illicit check cashers, presenting about
100 false and fraudulent, altered or forged checks drawn on
accounts of over 20 financial institutions of over $600,000.
(Id. ¶ 50.) After paying the check cashers, Muhammad and Ingalls
split the proceeds 50/50. (Id. ¶ 50.) In accordance with
U.S.S.G. § 3B1.1(a), n. 4, both Muhammad and Ingalls qualify as
the leaders and organizers of this extensive conspiracy. (Id. ¶
51.) Petitioner has proposed no evidence that his attorney
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should have raised to refute these documented facts regarding
the number of Muhammad’s subordinates in the mail theft and
check fraud schemes.
12.

Next, Petitioner argues that his counsel was

ineffective at his sentencing hearing because she did not
challenge the leadership enhancement “on grounds of fairness and
equity.” Petitioner identifies five arguments his counsel should
have raised at the hearing that would have “disqualify[ied] the
enhancement based on fairness”:
(1) The application of § 3B1.1 was contrary to the agreed
upon offense level under the plea agreement; (2) all of
the evidence utilized to apply said enhancement was
known to the government in 2011, see PSR, pp. 6-9, and
the government’s failure to address the issue in the
plea agreement – finalized in December 2012 – amounted
to an express waiver of its application; (3) the
defendant agreed to save the government the expense of
convening a grand jury, which would have likely charged
multiple counts of bank fraud rather than just one –
bringing
into
question
whether
check
cashers
participated in group conduct-, yet he was effectively
punished for his acquiescence to making matters easier;
(4) the government’s failure to establish a loss amount
of $750,000 should be offset by striking the enhancement
under § 3B1.1; and (5) by not making independent findings
in favor of the defendant (the PSR’s use of exaggerated
language against the defendant amounted to a bias) the
equitable balance was not properly restored.
(Pet. Reply at 20.)
13.

Petitioner’s arguments fail to recognize two key

facts: first, that the Court imposed the leadership enhancement
sua sponte, based on the PSR, even over the Government’s
objection, and second, that the Court was free to disregard the
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stipulations in the parties’ plea agreement. In other words, the
Government did not act contrary to the plea agreement, such that
“fairness and equity” required a finding against the
Government’s position. And, as described before, even if
Petitioner’s counsel had raised these arguments at the hearing,
there is no evidence that “the result of the proceeding would
have been different” because the Court concluded on its own that
the enhancement was warranted. Strickland, 466 U.S. at 489.
14.

Finally, Petitioner argues that his counsel was

ineffective for advising him to stipulate to more than 50
victims. According to Petitioner, her advice caused him to
stipulate to victims who should not count towards the total
under the Sentencing Guidelines because they did not suffer
“actual losses” from the theft of their mail. (Am. Pet. at 9.)
This is incorrect. Application Note 4(C)(i) makes clear that
“victim” under U.S.S.G. § 2B1.1 refers both to “any
[individuals, corporations, companies, associations, firms,
partnerships, societies, and joint stock companies] who
sustained any part of the actual loss determined” under the
offense or “any [individuals, corporations, companies,
associations, firms, partnerships, societies, and joint stock
companies] who was the intended recipient, or addressee, of the
undelivered United States mail.” Application Notes 1 and
4(C)(i). Accordingly, the Government would not have had to prove
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that any businesses or individuals whose mail was stolen as part
of the scheme suffered any “actual losses” in order to count as
“victims” of the scheme. Because the PSR presented reliable
evidence that the scheme victimized more than 50 individuals and
companies who were “intended recipients or addressees” of
undelivered mail, and several dozen additional banks which were
victims of the check fraud scheme as detailed in the PSR and to
which Muhammad owes restitution (see PSR ¶ 54), Petitioner’s
counsel was not ineffective in counseling him to stipulate to
that number of victims. The stipulation was totally consonant
with the facts.
15.

Additionally, Petitioner argues in his reply brief

that, in finding more than 50 victims, the PSR incorrectly
applied the “Special Rule” in Application Note 4(C)(ii)(I) of
U.S.S.G. § 2B1.1, and that his counsel should not have advised
him to stipulate to 50 victims on that basis. This “Special
Rule” applies to cases with undelivered United States Mail
involving “A United States Postal Service relay box, collection
box, delivery vehicle, satchel, or car,” and provides that each
case “shall be considered to have involved at least 10 victims.”
According to Petitioner,

“the mail stolen from Willis Honda

came from a personal collection box,” not one owned by the
United States Postal Service, and thus “is not a ‘United States
Postal Service collection box’ within the meaning of Application
11

Note 4(C)(ii)(I).” This is of no moment. Even if Willis Honda’s
mail was not counted, the long list of victims is shortened by
one entity, which is immaterial to the total calculation. In no
way was defense counsel deficient in failing to raise such a
trivial point or in counseling acceptance of the more-than-50victim stipulation.
16.

Petitioner’s sentence is correct and he has failed to

identify any other bases on which habeas relief could be
granted. For these reasons, the Petition is denied. An
accompanying Order will be entered.
17.

The Court will deny a certificate of appealability,

finding that this petition does not present a question that is
reasonably subject to debate under the Constitution or the laws
of the United States.

July 31, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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