Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tucker v. United States

United States District Court, M.D. Alabama, Northern Division

September 26, 2018

DEVON LYNTRELL TUCKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE

         Before the court is Devon Lyntrell Tucker's pro se motion for relief under 28 U.S.C. § 2255. Doc. # 1.[1]

         I. INTRODUCTION

         On March 5, 2015, Tucker pleaded guilty under a plea agreement to one count of conspiring to defraud the United States with respect to claims, in violation of 18 U.S.C. § 286, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). Tucker's convictions stemmed from his participation in a scheme to obtain tax refunds by filing fraudulent tax returns using stolen identities. As part of the scheme, Tucker, who worked as a jailer for the Troy, Alabama Police Department, stole the personal identification information of nearly 100 inmates and provided this information to a co-conspirator, “a female in Florida, ” who used it to file fraudulent tax returns through her tax preparation business. Doc. # 4-1 at 5. Arrangements were made between Tucker and the female for Tucker to get a portion of each tax refund generated through the scheme. Id. The IRS identified 19 false tax returns filed in the scheme, claiming over $100, 000 in refunds, with approximately $13, 000 in refunds actually being paid out by the IRS. Id. at 6.

         Following a sentencing hearing on August 3, 2015, the district court sentenced Tucker to 32 months in prison, consisting of 8 months on the conspiracy count and 24 months on the identity theft count, the terms to run consecutively. Doc. # 1-2 at 2. The district court entered its judgment on August 6, 2015. Id. at 1. Tucker did not appeal.

         On August 29, 2106, Tucker filed this § 2255 motion claiming he should receive a mitigating role reduction to his sentence based on Amendment 794 to § 3B1.2 of the United States Sentencing Guidelines. See Docs. # 1 & 2. For the reasons that follow, the Court concludes that Tucker's § 2255 motion be denied without an evidentiary hearing and that this case be dismissed with prejudice.[2]

         II. DISCUSSION

         A. General Legal Standard

         Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments under 28 U.S.C. § 2255 are limited. A prisoner may have relief under § 2255 if the court imposed a sentence that (1) violated the constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir. 2000); United States v. Walker, 198 F.3d 811, 813 n.5 (11th Cir. 1999). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent.”

         B. Amendment 794 to U.S.S.G. § 3B1.2

         Tucker maintains that he should receive a retroactive mitigating role reduction to his sentence based on the November 1, 2015 amendment (Amendment 794) to U.S.S.G. § 3B1.2. Doc. # 1 at 4; Doc. # 2 at 2-6.

         Section 3B1.2 of the Sentencing Guidelines provides that a defendant's offense level should be decreased

(a) If the defendant was a minimal participant in any criminal activity, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.