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Marshall v. United States

United States District Court, W.D. North Carolina, Charlotte Division

January 16, 2018



          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and on the Government's Motion to Dismiss, (Doc. No. 3).

         I. BACKGROUND

         1. Employing his uncle as a straw borrower, Petitioner Michael A. Marshall buys seven luxury automobiles, defaults on every loan, and fraudulently obtains clean titles.

         In 2012, Petitioner's uncle, Frederick Neal, approached Petitioner about working for him. See (Crim. Case No. 3:13cr261-FDW-1, Doc. No. 76 at ¶ 17: PSR). Neal had lost his job as a result of his addiction to crack cocaine. Because Neal's credit rating was high, Petitioner suggested a joint venture through which Petitioner would use Neal as a straw borrower on loans enabling Petitioner to buy luxury vehicles that he would use personally and that he would rent. In exchange, Neal was to receive 30% of the profits from the car rentals. (Id.).

         Neal and Petitioner bought seven luxury vehicles from Planet Suzuki, a dealership in Charlotte, North Carolina. (Id. at ¶¶ 10-16). The automobiles included two Land Rovers, a 2011 Porsche Panamera, two Mercedes, a Maserati Gran Turismo, and a 2006 Bentley Continental. (Id.). Although Petitioner negotiated the transactions, the credit applications and all other documents related to the transactions were signed in Neal's name, and the titles and registration were issued in Neal's name. See (Id. at ¶ 6). When asked for Neal's employment information, they falsely claimed that Neal was employed as a consultant by GM Financial Group and earned over $8, 000 a month. (Id. at ¶ 7).

         In the months following these purchases, the pair fraudulently “wiped” the title of most of the vehicles by going to the North Carolina Department of Motor Vehicles and requesting duplicate titles, claiming that the originals had been lost. They also provided false lien releases. Based on these false lien releases, the DMV issued new “clean” titles that reflected no liens. (Id. at ¶ 8). With the “clean” titles, Petitioner sold or traded most of the cars through his business, Luxotic Rentals, Inc. (Id. at ¶ 9). He eventually defaulted on all of the loans that he obtained using Neal's identity. Lenders lost over $425, 000 as a result of the scheme. (Id. at ¶ 19).

         2. Petitioner is charged with conspiracy to commit offenses against the United States, aiding and abetting bank fraud, and money laundering conspiracy.

         A grand jury indicted Petitioner and Neal, charging them with conspiracy to commit offenses against the United States, including making false statements to financial institutions, wire fraud, and bank fraud, in violation of 18 U.S.C. § 371 (Count One); bank fraud and aiding and abetting the same, in violation of 18 U.S.C. §§ 1344, 2 (Count Two); and money laundering conspiracy, in violation of 18 U.S.C. § 1956(h) (Count Three). (Id., Doc. No. 1: Indictment). Neal pleaded guilty to bank fraud and money laundering and testified at Petitioner's trial. (Id., Doc. No. 95 at 168, 170).

         Petitioner filed a motion to dismiss or for a bill of particulars, arguing that the Indictment was insufficient because it did not allege conspiracy to commit wire fraud with sufficient specificity and that it violated the rule against multiplicity by charging him with conspiracy in Count One and Count Three. (Id., Doc. No. 18). This Court denied the motion, holding that Count One did not charge Petitioner with wire fraud and was not deficient and that Counts One and Three were not multiplicitous. (Id., Doc. No. 21).

         Petitioner filed a second motion to dismiss the Indictment, this time asserting that the bank fraud count should be dismissed because it did not allege that he had acted knowingly. (Id., Doc. No. 23). Petitioner subsequently elected to proceed pro se, and he filed an amended motion to dismiss, arguing that the Indictment did not provide adequate notice of the charges against him, would not allow him to plead double jeopardy if tried again for the same charges, and failed to show federal jurisdiction. (Id., Doc. No. 38). This Court denied the motion, holding that the “Indictment tracks the statutory language and sets for[th] the essential elements in each count.” (Id., Doc. No. 44 at 2). Petitioner proceeded to trial, and a jury convicted him of all charges. (Id., Doc. No. 57: Jury Verdict).

         A probation officer prepared a presentence report, recommending that this Court sentence Petitioner at offense level 25, and criminal history category IV. (Id., Doc. No. 73 at ¶¶ 48, 73). The probation officer based Petitioner's criminal history score on his prior 2001 and 2009 convictions. (Id. at ¶¶ 56, 70). In 2001, Petitioner was convicted of conspiracy to use social security numbers to commit unauthorized access device fraud; use of unauthorized access devices and aiding and abetting the same; and fraudulent use of social security numbers and aiding and abetting the same. (Id. at ¶ 56). He received a 15-month sentence, and his term of supervised release expired on June 27, 2004. (Id.). In 2009, Petitioner was convicted of making a false statement on a loan and credit application; making a false representation of a social security number; bank fraud; and aggravated identity theft. (Id. at ¶ 70). He originally received a 30-month sentence (including 16 months of imprisonment on the fraud counts), but his conviction for aggravated identity theft was later overturned. (Id.). Although Petitioner was released from confinement, he was later sentenced to an additional 30 months of imprisonment for violating the terms of his supervised release. (Id.). The probation officer found that each of Petitioner's prior convictions earned him three criminal history points pursuant to United States Sentencing Guidelines § 4A1.1(a), and he earned an additional two points pursuant to § 4A1.1(d) because he committed the instant offense while serving his term of supervised release. (Id. at ¶¶ 56, 70, 72). The applicable guidelines range was 84 to 105 months of imprisonment. (Id. at ¶ 111).

         Petitioner objected to the PSR, arguing, inter alia, that his sentence for the 2001 offense was less than a year and a month and, therefore, he should only have received two points for this prior offense. (Id., Doc. No. 76 at p. 29: PSR addnm.). This Court granted Petitioner's objection to the two-level increase for having been convicted of violating Section 1956(h), but overruled his remaining objections and determined that the total offense level was 24. (Id., Doc. No. 84: Statement of Reasons). This Court sentenced Petitioner within the guidelines range to 96 months of imprisonment. (Id., Doc. No. 83: Judgment).

         Petitioner appealed, arguing that the evidence was insufficient to support his convictions; the Court erred when it instructed the jury as to the elements of bank fraud; and that the Court erred in calculating the amount of loss. United States v. Marshall, 663 F. App'x 275 (4th Cir. 2016), cert. denied, 137 S.Ct. 1118 (2017). The Fourth Circuit affirmed, rejecting “as wholly without merit [Petitioner's] challenges to the sufficiency of the evidence underlying his convictions on all three counts.” Id. at 276. Petitioner timely filed the pending Section 2255 motion in September 2017, arguing that he received ineffective assistance of counsel on appeal. Specifically, Petitioner contends that he received ineffective assistance of counsel on appeal because his attorney did not challenge this Court's denial of the pretrial motion to dismiss or argue that this Court incorrectly calculated his criminal history score (Civ. Doc. No. 1). The Government filed the pending motion to dismiss on ...

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