Harris v. USA
ORDER denying and dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Robert J. Conrad, Jr on 10/13/16. (Pro se litigant served by US Mail.)(ssh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA, )
THIS MATTER is before the Court on consideration of Petitioner’s pro se Motion to
Vacate, Set Aside or Correct Sentence which is filed pursuant to 28 U.S.C. § 2255. For the
reasons that follow, Petitioner’s § 2255 Motion to Vacate will be denied and dismissed.
On April 9, 2015, Petitioner pleaded guilty pursuant to a written plea agreement to one
count of conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1349 and 2326(2)(A) &
(B) (Count One); one count of wire fraud and aiding and abetting the same, in violation of 18
U.S.C. §§ 1349, 2326(2)(A) & (B) and 2 (Count Two); and one count of conspiracy to commit
money laundering, in violation of 18 U.S.C. § 1956(h) (Count Twelve). (3:14-cr-00082, Doc.
No. 17: Superseding Indictment; Doc. No. 35: Plea Agreement; Doc. No. 38: Acceptance and
Entry of Guilty Plea).
In Petitioner’s presentence report (PSR), the probation officer included the complete
Factual Basis that was filed contemporaneously with her plea agreement.
Beginning in or about July 2008 and continuing through September of
2014, the defendant, MARGARET HARRIS (HARRIS), participated in
sweepstakes telemarketing call centers located in Costa Rica for the purpose of
defrauding U.S. residents by convincing them to pay money in an effort to claim a
fictitious sweepstakes prize. At various points throughout the time of the offense,
HARRIS worked in these call centers as an “opener” or a “loader.” HARRIS
further represents that during the entire period she was in Costa Rica, she suffered
from extreme drug addiction, worked in the call centers when she was physically
and mentally able, and desperately needed money.
As used in this Factual Basis, the following terms indicate the following:
a. A "call center" is a business that engages in an illegal
b. An "opener" is an employee of a call center who makes the
initial telephone contact with a prospective victim.
c. An “opening” is the initial telephone pitch made to a victim to
convince him/her to send money in order to claim a sweepstakes
d. A "loader" refers to the call center employee who takes over the
victim contact after the victim has sent funds as a result of the
pitch given by the opener. The loader, who is usually a more
experienced telemarketer than the opener, attempts to convince the
victim to send additional funds for various fees required to receive
the represented prize.
e. A "reload" is a pitch to a victim who previously sent funds to
retrieve a sweepstakes prize.
f. A “runner” is an individual who retrieves victim funds at a
Western Union or Money Gram location and, for a fee, delivers
them to the owner of a call center.
The ongoing investigation has revealed that since 2008 HARRIS, and coconspirators have, in furtherance of the fraud, telephoned numerous U.S. residents
from Costa Rica. HARRIS defrauded many elderly U.S. victims. The deception
often began with a phone call from an opener in which a victim is informed that
he or she has won second prize in a lottery or sweepstakes in the amount of
$350,000 to $450,000. HARRIS and her coconspirators would inform their
victims during the initial call that, in order to receive their prize money, the
victims must pay a purported "refundable insurance fee."
HARRIS told victims to pay their fees via Western Union or Money Gram to
individuals in Costa Rica. HARRIS and her co-conspirators kept the victims’
funds and never provided any "winnings" to the victims. The victims’ funds were
used to continue the operation of the call centers and for HARRIS’ and her coconspirators personal benefit.
Once a victim made an initial payment for the purported insurance fees
HARRIS and her co-conspirators continued to call the victims as loaders often
falsely representing that a mistake had been made and that the victim had actually
won first prize in excess of three million dollars. HARRIS and her coconspirators told victims that they had to first pay thousands of additional dollars
for increased insurance fees and other costs to claim their larger prizes. This
practice is called "reloading" and HARRIS along with her coconspirators would
continue to reload the victim as long as the victim was willing and
able to continue to transfer funds. Many victims lost tens of thousands of dollars.
During their solicitations, HARRIS and her co-conspirators often falsely
represented themselves to be employees of U.S. government agencies such as, the
Federal Trade Commission, the Department of Commerce, the Internal Revenue
Service, and/or the Federal Bureau of Investigation. The defendant reserves the
right to object to this factual representation.
For prize verification, HARRIS and her co-conspirators gave victims
telephone numbers that, although bearing U.S. area codes, were actually answered
at the call centers in Costa Rica. This deceit was achieved through the use of
Voice over Internet Protocol (VoIP) technology, which allowed telephone calls to
be made over the Internet with chosen area codes not actually associated with
physical locations in the United States. VoIP service providers allow subscribers
to choose an area code that does not correspond to the subscriber's actual physical
location. HARRIS and her coconspirators chose and utilized area code (202) to
make their calls appear to be coming from the Washington, D.C. area as if the
calls were actually being generated by federal agencies.
HARRIS and her co-conspirators instructed victims to send their funds to
Costa Rica via Western Union wire transfers. All Western Union wire transfers
are electronically routed to and processed in and through Charlotte, North
Carolina prior to being sent to their ultimate destination in Costa Rica.
HARRIS knew that every factual assertion in their pitch to the victims
was false including the representation that the telemarketers were calling from a
federal governmental agency in the United States or that she represented herself to
be an employee of the United States government. The defendant reserves the right
to object to this factual representation.
HARRIS represents that she suffered from a drug addiction while she was
working as a telemarketer during the years charged in the Indictment which
directly impacted her ability to work steadily at the call center(s) and her ability to
convince victims to send money.
The government represents that, HARRIS and her co-conspirators, from
Costa Rica, defrauded in excess of fifty (50) victims located in the United States
of at least $3,756,762.36 of their funds during the term of the conspiracy and
many of the victims were over the age of 55 and vulnerable. The defendant
reserves the right to object to all representations in this paragraph.
The government represents that on or about the dates set forth in the
Indictment, HARRIS and her co-conspirators caused the victims identified in
counts 2 through 11 and 13 through 21 to send Western Union transfers in the
identified amounts from within the United States to San Jose, Costa Rica to pay
for alleged fees required to claim their purported sweepstakes prizes in
furtherance of the Wire Fraud and Money Laundering conspiracies. The
defendant admits to the criminal activity charged in counts 1, 2 and 12
and reserves the right to contest her participation in the additional counts.
(Id., Doc. No. 36: Factual Basis; Doc. No. 45: PSR) (bold in original).
The probation officer calculated a total offense level of 32, and with a criminal
history category of I, Petitioner’s Guidelines range was 121 to 151 months in prison.
During sentencing, the Court sustained Petitioner’s objection to the loss amount which
reduced her offense level to 30 yielding an adjusted range of 97-121-months’
imprisonment. The Court also granted the Government’s motion for a downward
departure pursuant to § 5K1.1 of the U.S. Sentencing Guidelines Manual (USSG), and
Petitioner was sentenced to a below-Guidelines range of 84 months in prison and she did
not appeal. (Id., Doc. No. 66: Judgment; Doc. No. 67: Statement of Reasons at 4).
STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing
courts are directed to promptly examine motions to vacate, along with “any attached exhibits and
the record of prior proceedings” in order to determine whether a petitioner is entitled to any
relief. The Court has considered the record in this matter and applicable authority and concludes
that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970).
In this collateral proceeding, Petitioner contends that she is entitled to sentencing relief
based on Amendment 794 to USSG § 3B1.1 because she played a minor role in the offense of
conviction. (3:16-cv-00628, Doc. No. 1: Motion to Vacate at 4-5). Section 3B1.1 provides for the
application of a sentencing enhancement if the court finds that the defendant played an
aggravating role in the offense of conviction. Neither the presentence report nor this Court found
such an enhancement applicable. It appears that Petitioner is actually asserting that she should
have received a minor role reduction under the provisions of Amendment 794 of § USSG 3B1.2.
Amendment 794 amended the commentary to § 3B1.2 to address what the Commission
considered was an inconsistent application of the mitigating role reduction for low level
offenders. In particular, the amendment added a non-exhaustive list for the court to consider
when determining whether to apply the guideline and to what extent. See USSG § 3B1.2 cmt.
The Commission made the amendment effective for defendants sentenced on or after
November 1, 2015. Petitioner was sentenced on October 27, 2015. Consequently, Amendment
794 would not have been applicable to the calculation of her advisory Guideline range.
Nevertheless, the Court observes that Petitioner did in fact receive a two-level reduction under
USSG § 3B1.2(b) after the Court found that she played a minor role in the offense conduct for
which she was found guilty. (3:14-cr-00082, Doc. No. 35: PSR ¶ 35; Doc. No. 67: Statement of
For the reasons stated herein, the Court finds that Petitioner’s § 2255 Motion to Vacate is
without merit and it will be dismissed.
IT IS, THEREFORE, ORDERED that Petitioner’s Motion to Vacate is DENIED and
DISMISSED WITH PREJUDICE. (Doc. No. 1).
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Cases, the Court declines to issue a certificate of appealability as Petitioner has not
made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); MillerEl v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding that when
relief is denied on procedural grounds, a petitioner must establish both that the correctness of the
dispositive procedural ruling is debatable, and that the petition states a debatably valid claim of
the denial of a constitutional right).
The Clerk is directed to close this civil case.
Signed: October 13, 2016
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