Hobbs III v. USA

Filing 10

Memorandum Opinion and Order....The motion to vacate denied. Certificate of appealability denied. (Ordered by Judge John McBryde on 7/2/2013) (wrb)

U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

FILED
IN THE UNITED STATES DISTRICT qouRT
NORTHERN DISTRICT OF TEXAS/
JUL - 2 20f3
FORT WORTH DIVISION
/ c~~RK, u.s. DISTRICT COTJRT

I

UNITED STATES OF AMERICA

l

§

Deputy

§

vs.

§
§

SANFORD TAYLOR HOBBS, III

NO. 4:13-CV-222-A
(NO. 4:11-CR-151-A-2)

§
§

MEMORANDUM OPINION
and
ORDER
Came on to be considered the motion of Sanford Taylor Hobbs,
III

("movant") pursuant to 28 u.s.c.

or correct sentence.

§

2255 to vacate, set aside,

Having reviewed the motion, movant's

memorandum, the record, the government's response, movant's
traverse, and applicable legal authorities, the court concludes
that none of the grounds has merit and the motion should be
denied.
I.

Background
Movant pleaded guilty to one count of conspiracy to defraud
the United States, in violation of 18 U.S.C.

§

371.

The United

States Sentencing Guidelines ("USSG") called for a term of
imprisonment of 97 to 121 months; however, the statutory maximum
sentence was 60 months.

Movant's attorney objected to the two-

level sophisticated means enhancement and the three-level

J

manager/supervisor enhancement that were included in the
guideline calculation.

The court sentenced movant to the 60-

month statutory maximum, while noting that, under a consideration
of the factors under 18 U.S.C.

§

3553(a), movant's conduct would

have justified a considerably longer sentence.

Movant was also

sentenced to a three-year term of supervised release, and ordered
to make full restitution in the amount of $4,157,492.69.

The

court entered judgment on April 6, 2012, and movant did not
appeal.

Movant timely filed his section 2255 motion on March 18,

2013.
From approximately 2005-2009, movant was an owner and
operator along with his wife, Crystal La Von Mason-Hobbs
("Crystal"), of a tax preparation business called CMH Enterprise
a.k.a. CMH Tax and Notary Service ("CMH").

In the scheme,

movant, Crystal, and their employees prepared and filed hundreds
of fraudulent tax returns, which resulted in a loss of more than
$4,200,000.00 to the United States Treasury.

Movant and his

conspirators also took advantage of return anticipation loans
("RAL") being offered by banks.

Once the RALs were approved, the

banks deducted tax preparation fees from the RAL funds and
deposited the fees into movant's account.

The loan funds were

given to the clients in debit card form, and movant, Crystal, or

2

their employees accompanied the clients to the ATMs and demanded
excess fees from the clients.

The fees were deposited into

movant's account, and movant and Crystal retained all of the
profits from the excess fees.
II.
Grounds of the Motion
Movant identified five grounds for relief in her motion:

(1)

the intended tax loss was improperly calculated, causing movant's
sentence to be procedurally unreasonable;

(2) the charges in the

indictment against him are barred by the statute of limitations;
(3) counsel was ineffective for failing to object to the court's
application of certain sections of USSG;

(4) the court made

additional errors in calculating movant's sentence; and (5)
information that was not charged in the indictment was used in
his sentencing.

Mot. at 5-9, 11.

into three claims:

(1)

These grounds essentially fall

errors in sentencing calculations;

(2)

statute of limitations; and (3) ineffective assistance of
counsel.
III.
Analysis
A.

Legal Standard for 28 U.S.C.

§

2255

After conviction and exhaustion, or waiver, of any right to
appeal, courts are entitled to presume that a defendant stands
3

fairly and finally convicted.
152, 164

United States v. Frady, 456 U.S.

(1982); United States v. Shaid, 937 F.2d 228, 231-32

(5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992).

A defendant

can challenge her conviction or sentence after it is presumed
final on issues of constitutional or jurisdictional magnitude
only, and may not raise an issue for the first time on collateral
review without showing both "cause" for her procedural default
and "actual prejudice" resulting from the errors.

Shaid, 937

F.2d at 232.
Section 2255 does not offer recourse to all who suffer trial
errors.

It is reserved for transgressions of constitutional

rights and other narrow injuries that could not have been raised
on direct appeal and would, if condoned, result in a complete
miscarriage of justice.

United States v. Capua, 656 F.2d 1033,

1037 (5th Cir. Unit A Sept. 1981).

In other words, a writ of

habeas corpus will not be allowed to do service for an appeal.
Davis v. United States, 417 U.S. 333, 345 (1974).

Further, if

issues "are raised and considered on direct appeal, a defendant
is thereafter precluded from urging the same issues in a later
collateral attack."
(5th Cir. 1979)
517-18

Moore v. United States, 598 F.2d 439, 441

(citing Buckelew v. United States, 575 F.2d 515,

(5th Cir. 1978)).

4

B.

Sentencing Calculation Claims
Movant contends that his sentence was improperly calculated

because the court erred in determining the loss to the
government, claiming that the basis for the calculation was too
"speculative."

Mot. at 5; memo. at 3.

Movant also contends that

there was plain error at sentencing because "there was nothing
placed in writing for reasons under§ 3553(a)," and because
certain enhancements should not have been applied to movant.
Mot. at 9.
Movant's claim is not cognizable in collateral proceedings,
and also lacks merit.

First, movant failed to raise the issue of

sentencing calculations on direct appeal, and is procedurally
barred from raising the issue on collateral review unless he can
show both cause and prejudice.

Shaid, 937 F.2d at 232.

"Section

2255 motions may raise only constitutional errors and other
injuries that could not have been raised on direct appeal that
will result in a miscarriage of justice if left unaddressed," and
misapplications of the sentencing guidelines are not cognizable
on collateral review.
462

United States v. Williamson, 183 F.3d 458,

(5th Cir. 1999); United States v. Segler, 37 F.3d 1131, 1134

(5th Cir. 1994).
Movant does not explain why he did not raise the issue of
sentencing calculations in a direct appeai, nor does he show that
5

there was an error that actually prejudiced him.

He claims that

the tax loss calculation was speculative, and the government
failed to support the calculation with reliable and specific
evidence.

The USSG commentary specifically states that "the

amount of the tax loss may be uncertain; the guidelines
contemplate that the court will simply make a reasonable estimate
based on the available facts."

USSG

§

2Tl.l, cmt. n.l; United

States v. Simmons, 420 F. App'x 414, 417-18

(5th Cir. 2011).

Tax

loss may be found by the preponderance of the evidence, and
movant provides nothing that can show that the tax loss was not
properly calculated.
681-82

See United States v. Phelps, 478 F.3d 680,

(5th Cir. 2007).

Movant's bald assertion that the tax

loss calculations included lawful activity or are too speculative
do not prove that there was actual prejudice.
Movant also seems to argue that because the loss amount was
not included in the indictment or the factual resume in his case,
there was a violation under either Apprendi v. New Jersey, 530
U.S. 466

(2002) or United States v. Booker, 543 U.S. 220

(2005).

However, there is no Apprendi violation because the tax loss
calculation did not result in a sentence in excess of the
statutory maximum.
(5th Cir. 2001).

See United States v. Loe, 262 F.3d 427, 437
There is also no Booker violation, as a "court

[does] not commit error under Booker by finding the facts
6

relevant to the determination of [a defendant's] advisory
guidelines range."
287
98

United States v. Harris, 213 F. App'x 286,

(5th Cir. 2007); United States v. Johnson, 445 F.3d 793, 797(5th Cir. 2006).

Thus, movant shows neither the cause nor the

actual prejudice that is required to sustain this claim, and such
claim should be dismissed.
C.

Statute of Limitations Claim
Movant contends that the statute of limitations for his

offense is five years, and that five of the six overt acts
contained in his indictment were outside of the statute of
limitations.

He also contends that the statute of limitations is

jurisdictional, and, therefore, the court did not have
jurisdiction over the above-described five charges.
government responds by arguing that

The

(1) the statute of

limitations is not jurisdictional, but is an affirmative defense
that movant waived;
direct appeal;

(2) movant failed to raise the issue on

(3) the conspiracy was uninterrupted and continued

into the limitations period; and (4) the statute of limitations
is six years, not five years as movant had claimed.
The statute of limitations is an affirmative defense, and,
therefore,

"the defendant must affirmatively assert a limitations

defense at trial to preserve it for appeal."
Arky, 938 F.2d 579, 582

(5th Cir. 1991)
7

United States v.

(holding that a criminal

defendant who had failed to raise and develop a statute of
limitations defense was precluded from doing so on appeal) .

In

addition, a statute of limitations defense is deemed waived when
a defendant enters a voluntary and unconditional plea of guilty,
as movant did in this case.

See United States v. Daughenbaugh,

549 F.3d 1010, 1012 (5th Cir. 2008); Acevedo-Ramos v. United
States, 961 F.2d 305, 308-09 (1st Cir. 1992).

Thus, movant

waived the statute of limitations defense by failing to raise it
at the trial level.
Movant also failed to raise the statute of limitations issue
on direct appeal, and a
appeal.

§

2255 motion is not a substitute for an

Shaid, 937 F.2d at 232.

For this issue to be cognizable

in collateral proceedings, movant must show cause for his
procedural default and actual prejudice resulting from the error,
and he can show neither.

As for cause, by failing to raise the

issue at trial, movant may argue that he would have been
precluded from raising it on appeal; however,

"futility cannot

constitute cause if it means simply that a claim was unacceptable
to that particular court at that particular time."
United States, 523 U.S. 614, 623

(1998)

Bousley v.

(quoting Engle v. Isaac,

456 U.S. 107, 130 (1982)).
Regardless of a showing of cause, movant fails to show that
he was prejudiced, which requires that if the error were
8

condoned, the result would be a "complete miscarriage of
justice.n

Shaid, 937 F.2d at 232, n.7.

Movant cannot even show

that an error occurred, much less an error resulting in a
miscarriage of justice.

Movant argues that the conspiracy

stopped after tax season each year when he engaged in lawful
business practices, that each year would have been a separate
conspiracy for limitations purposes, and, therefore, only the
fraudulent tax returns filed in 2007 and later fell within the
applicable limitations period.

Movant is mistaken, however, as

"[t]he limitations period runs from the last overt act of the
conspiracy alleged in the indictment and proved at trial."
United States v. Mann, 161 F.3d 840, 856 (5th Cir. 1998).

Even

if a conspiracy began outside of the limitations period, the
indictment is timely if an overt act was committed within the
limitations period.
(5th Cir. 1998).

United States v. Ely, 140 F.3d 1089, 1090

The indictment, filed October 12, 2011, states

that overt acts occurred on in January 2008 and January 2009,
showing that the indictment was timely.
In addition, simply because movant conducted other business
between tax seasons, does not mean the conspiracy ceased, as
"[m]ere cessation of activity in furtherance of the conspiracy is
not sufficient to show withdrawal," and movant "is presumed to
continue his involvement in the conspiracy unless he makes a
9

substantial affirmative showing of withdrawal, abandonment, or
defeat of the conspiratorial purpose."
709 F.3d 413, 427-28

(5th Cir. 2013).

United States v. Heard,
Movant has not shown that

he ever withdrew from or abandoned his role in the conspiracy,
as, each year, he continued engaging in the conspiracy.

Finally,

while movant contends that the statute of limitations is five
years, the correct statute of limitations is actually six years.
See id. at 427

("The statute of limitations for conspiracy to

u.s.c.

defraud the United States in violation of 18

§

371, the

offense for which [movant] was charged, is six years 'where the
object of the conspiracy is to attempt in any manner to evade or
defeat any tax or the payment thereof.'")
6531(8)).

(quoting 26 U.S.C.

§

Thus, movant's claim that the statute of limitations

had run on five of his six counts is meritless, and should be
dismissed.
D.

Ineffective Assistance of Counsel Claims
To prevail on an ineffective assistance of counsel claim,

movant must show (1) that counsel's performance fell below an
objective standard of reasonableness and (2) that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 687

(1984).

Both prongs

of the Strickland test must be met to demonstrate ineffective
10

assistance.

Id. at 697.

Further,

"[a] court need not address

both components of an ineffective assistance of counsel claim if
the movant makes an insufficient showing on one."
v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000).

United States

"The likelihood

of a different result must be substantial, not just conceivable,"
Harrington v. Richter, 131 S. Ct. 770, 792

(2011), and a movant

must prove that counsel's errors "so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result."

Cullen v.

Pinholster, 131

s.

U.S. at 686)).

Judicial scrutiny of this type of claim must be

Ct. 1388, 1403

(2011)

(quoting Strickland, 466

highly deferential and the defendant must overcome a strong
presumption that his counsel's conduct falls within the wide
range of reasonable professional assistance.

Strickland, 466

U.S. at 689.
Movant contends that his attorney was ineffective for (1)
failing to raise the statute of limitations defense and to argue
that the tax loss should have been limited because of the statute
of limitations; and (2) failing to object to the sentencing
enhancements for using a sophisticated means and being a manager
or supervisor of a criminal activity.

First, as has been

discussed above, supra III.C, movant's conduct fell within the
applicable statute of limitations, and raising such a defense
11

would have been meritless.

It is well-settled that "[c]ounsel is

not deficient for, and prejudice does not issue from, failure to
raise a legally meritless claim."
581, 585 (5th Cir. 1990).

Smith v. Puckett, 907 F.2d

Second, contrary to movant's

assertions, his attorney objected to the enhancements, both in
response to movant's presentence report and at movant's
sentencing hearing,

and the court overruled the objections.

Sentencing Tr. at 4-5.

Movant provides nothing that can show his

attorney failed to make a proper objection, or that his
attorney's arguments were deficient, and, accordingly, he fails
to show that his attorney's actions were not objectively
reasonable.
IV.
Order
Therefore,
The court ORDERS that the motion of Sanford Taylor Hobbs,
III to vacate, set aside, or correct sentence pursuant to 28
U.S.C.

§

2255 be, and is hereby, denied.

Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule ll(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
§

2253(c) (2), for the reasons discussed herein, the court further

ORDERS that a certificate of appealability be, and is hereby,
12

denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED July 2, 2013.

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