United States District Court, W.D. North Carolina, Charlotte Division
MICHAEL A. MARSHALL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
D. Whitney Chief United States District Judge.
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).
Employing his uncle as a straw borrower, Petitioner Michael
A. Marshall buys seven luxury automobiles, defaults on every
loan, and fraudulently obtains clean titles.
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.).
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).
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).
Petitioner is charged with conspiracy to commit offenses
against the United States, aiding and abetting bank fraud,
and money laundering conspiracy.
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).
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).
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).
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).
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).
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