Court Rejects Ineffective Assistance of Counsel in Tax Preparer Case (8/20/13)

In United States v. Mobley, 2013 U.S. Dist. LEXIS 115392 (SD AL 2013), here, the defendant, a return preparer brought a 2255 proceeding to overturn her conviction by plea.  The defendant had been charged with a 99-count Second Superseding Indictment with preparing false and fraudulent returns.  The defendant pled to 4 counts:  (1) conspiracy count, (2) aiding and assisting, (3) wire fraud, and (4) aggravated identity theft.

The defendant was sentenced to 51 months, at the low-end of the guidelines sentencing range.  That calculation was made using a 21 base offense level, driven by a stipulated estimated tax loss between $400,000 and $1,000,000.  With other adjustments, the guidelines range was 51 to 63 months.

In the 2255 proceeding, the defendant sought to avoid the conviction based on the usual claim in such proceedings -- ineffective assistance of counsel.  The claims came in several flavors, all based upon her factual assertion that her counsel was conflicted because, among the false returns defendant allegedly prepared, were returns for her counsel's father and stepmother.  One of the variations was a claim that, "unconflicted counsel could have negotiated a better plea agreement."  The reason, counsel was reluctant to take the case to trial if., by doing so, he would or might have to cross-examine his own relations.  The Court rejected the claim, finding that counsel had not been negatively influenced.  The court then held (focus particularly on footnote 5):

Furthermore, there is no indication that any "better plea agreement" could have been obtained, irrespective of who was representing Mobley. n5 Petitioner offers no specifics as to what sort of deal she thinks conflict-free counsel might have procured. There is no evidence or reason to believe that a more favorable deal could have been available to her under any circumstances. More fundamentally, Mobley steadfastly admits to this day, "I do not seek to vacate my conviction because I am guilty of the crimes to which I pled guilty." (Id. at 1.) Even in her objections to the Report and Recommendation, petitioner reiterates that "Mobley has not challenged her guilty plea." (Doc. 173, at 2.) In light of these admissions, her apparent suggestion that Attorney McCord betrayed her by not negotiating a plea deal that would have excused her from pleading guilty to those crimes (of which she is admittedly guilty and which plea she does not now challenge) borders on the absurd. Simply put, petitioner has not shown that there was any viable alternative strategy Attorney McCord could have utilized with respect to plea negotiations, but that she failed to follow because of the purported conflict. n6 For all of these reasons, Mobley's objection that she suffered an "adverse effect" from Attorney McCord's conflict because conflict-free counsel could have negotiated a better plea agreement is overruled.
   n5 In her objections, defendant suggests that she was induced to plead guilty "without obvious benefits." (Doc. 173, at 3.) This statement is demonstrably incorrect. The benefits to Mobley for executing this plea agreement were numerous and tangible, to-wit: (i) the Government agreed to dismiss 95 counts against her and to refrain from bringing any additional related charges against her; (ii) the Government agreed to cap the monetary loss for sentencing purposes at $1 million, while preserving Mobley's opportunity to object to that amount; (iii) the Government agreed to recommend a low-end sentence; and (iv) by executing the plea agreement and timely changing her plea, Mobley availed herself of a full three-level reduction for acceptance of responsibility, which had the effect of lowering the bottom end of her guideline range from 70 months to 51 months (a 27% reduction). To the extent that Mobley persists in arguing that her sentence "would have been the same if the [other 95] counts had not been dismissed" (doc. 164), she is wrong. The Court was not bound to adhere to the low-end recommendation, and would have been less likely to do so had Mobley pled guilty to 99 counts rather than just four. More importantly, recall that the Indictment included 12 counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). (See doc. 70, at Counts 88 - 99.) Eleven of those counts were dismissed pursuant to the plea agreement. Each of those counts carried the very real possibility of a two-year consecutive sentence pursuant to § 1028A(b)(2), although this Court would have had discretion under the statute to run them concurrently. Thus, the plea agreement removed the potential for Mobley to face an additional 22 years' worth of consecutive sentences on top of the low-end guideline sentence the Government had agreed to recommend. This is, indeed, an "obvious benefit" to the plea, even if Mobley does not appreciate it.
   n6 In another objection, Mobley maintains that the plausible alternative strategy to her guilty plea was going to trial. On that point, Mobley reasons that "[i]f unconflicted counsel had been able to challenge the Government's case as relates to the alleged victims (McCord's parents), it is plausible that other challenges could have been made to the Government's case in total" and "it could have cast doubt in the jury's mind as to whether other alleged victims were actually participants." (Doc. 173, at 3.) With this argument, petitioner endeavors to have her cake and eat it too. One the one hand, she has repeatedly averred that she is not challenging or seeking to overturn her guilty plea. On the other hand, she seeks to establish a Sixth Amendment violation because her conflicted counsel persuaded her to plead guilty instead of going to trial. A § 2255 petitioner does not get to have it both ways. Besides, petitioner's argument does not establish the "reasonable alternative strategy" under the Reynolds line of cases. For Mobley to proceed to trial and attack D.B. [father] and E.B.[step-mother] as not being "victims" would have been foolish because, as discussed infra, the Government never, ever suggested that they were victims. The Indictment identifies numerous individuals on whose behalf Mobley prepared false/fraudulent tax returns, some of whom were aware of and participated in the fraud and some of whom did not know she was preparing tax returns for them at all. By the clear wording of the Indictment, D.B. and E.B. fell within the first category, not the second. In other words, it would not have been a reasonable alternative strategy for Mobley to go to trial to try to persuade the jury that D.B. and E.B. were not really victims, and that the Government's entire case was therefore of dubious worth, for the simple and obvious reason that the Government never contended that D.B. and E.B. were victims. Whatever else can be said, such an irrational trial strategy was not a viable alternative to a guilty plea that resulted in dismissal of 95 of the 99 counts against Mobley, leaving only four charges to which she even now concedes guilt.

Plea bargaining to fewer counts often does not affect the guidelines sentence because the guidelines range is determined without reference to the number of counts of conviction.  The counts of conviction will set the maximum possible sentence (by a process of stacking), but in this case even stacking was not necessary to justify the sentence of 51 months, nine months short of 5 years.  For example, conspiracy is a five year count and had there been only a conspiracy count of conviction, the guidelines range would have been the same and the court could sentence to 51 months.