Pro-se MOTION to Vacate, set aside or correct sentence under 28 U.S.C. 2255 (Civil… — USA v. Thomas et al (Dkt. 722)

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:20-cr-00296-JPB-CMS · Doc. 722 · 2023-09-13 · Docket on CourtListener

Full text

UNITED STATES 
VS 
AMANDA CHRISTIAN 
Case o : 1 :20-CR-00296-09-JPB 
FILED IN CLERK'S OFFICE 
U.S.D.C. Atlanta 
SEP 11 2023 
KEVIN P. WEIMER Cle.,, 
By· 
. 
II\ 
•~e~ 
Motion under 28 USC 2255 to vacate, set aside, or correct sentence by a person in 
federal custody. 
United States District Court 
District 11 
Amanda Christian 
55929-509 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 1 of 34

B3-62-L 
Federal Prison Camp 
PO Box A 
Alderson, VA 24910 
United States District Court for the Northern District of Georgia, Atlanta Division 
Sentenced: September 13, 2022 
41 months Pleaded Guilty to Conspiracy to commit wire fraud 
18 USC 1349 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 2 of 34

This is a pro se motion pursuant to Haines vs Kerner, 404 US 519, 92 S.Ct 594, to 
raise the following grounds of ineffective assistance of counsel. Pro se litigants 
pleading are held to less stringent a standard then one done by formal pleading 
drafted by a lawyer. 
Argument 
"A defendant has a constitutional right to effective assistance of counsel at 
sentencing." Jones v United States, 224 F.3d 1251, 1259 (11th Cir. 2000)( citation 
omitted). "['Counsel' bears the primary responsibility for advising the 
defendant .... ' the strategic implications of each choice ..... " Corley v United 
States, 406 F. App x 342, 343(11 th Cir. 2010) Quoting United States v. Teague, 953 
F. 2d 1525, 1533(1 lth Cir. 1992).] 
The defendant's counsel erred in his professionally handling of this case. He failed 
to file a motion of discovery to obtain evidence held against the defendant and to 
substantiate the government's claims as well as failed to go over said evidence 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 3 of 34

with the defendant before having her sign a plea agreement. His lack of doing so 
created a prejudice for the defendant that carried until the actual day of sentencing. 
"The likelihood of a a different result must be substantial, not just conceivable. ' 
Harrington v Richter, 562 U.S. 86,112,131 S. Ct. 770,178.L Ed. 2d 624 
(2011 )(Quoting Strickland) Counsel's errors here deprived thee defendant of the 
opportunity to a fair trial, a trial whose result is reliable. The result of which would 
have demonstrated and brought fourth all evidence and her sentencing would have 
been less harsh due to her loss calculation and offense level being less. 
Grounds 
1. 
Counsel was ineffective because he failed to file a motion of discovery to 
obtain evidence used to indict the defendant. 
2. 
Counsel was ineffective because he hurriedly advised the defendant to sign 
her plea agreement due to the fact that "the government would not speak with me 
until it was signed." 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 4 of 34

3. 
Counsel was ineffective due to not challenging loss calculation/intended 
loss amount. 
4. 
Counsel was ineffective due to not objecting to the submission of "intent 
and willful" element. 
5. 
Counsel was ineffective due to withdrawing role enhancement objection; for 
role enhancement as a recruiter prior to sentencing and not discussing the strategy 
with the defendant. 
6. 
Counsel was ineffective for failure to argue 3553(a) factors and sentencing 
disparities among defendants with similar records and with similar conduct. 
Motion Supplement 
Ground 1: 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 5 of 34

Counsel was ineffective because he failed to file a motion of discovery to obtain 
evidence used to indict the defendant. While the right to discovery is not a 
constitutional one, the lack of a defendant having access to such evidence hinders 
the sense of justice mandated by the due process of the fifth amendment. Federal 
rules of criminal procedure (Rule 16) allows for the defendant to see and make 
available the discovery/evidence used to indict the defendant. However, since he 
failed to obtain the government's evidence, he proved prejudicial against the 
defendant. Without seeing the evidence that the government held against her, the 
defendant did not give her plea fully, knowingly, and able to act intelligently with 
sufficient awareness of the relevant circumstances and likely consequences 
surrounding the plea. The could have changed the sentencing outcome and other 
factors i.e. loss calculation. The day of sentencing, the defendant was shown three 
exhibits provided by the prosecution. The timing was inadequate as the plea 
agreement was worked out several months prior (see Doc 565). Presenting this 
evidence on such an emotionally charged day would guarantee that the defendant 
would be unable to review the evidence and its merit. The defendant substantially 
disadvantaged in her defense. See, therefore, was denied "fundamental fairness: 
and waived substantial constitutional rights due to her counsel's lack of action and 
preparation as these documents were filed with the court on September 6, 2022. 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 6 of 34

In the Eleventh Circuit: United States V Frazier 387 .2d 1244(11 th Cir 2004) this 
court found that "bedrock principles established with a criminal must be given 
every meaningful opportunity to present a complete defense, in doing so must 
comply with the procedural and evidentiary rules designed to facilitate a search for 
the truth". This rule should apply also to defense counsel. In Maryland: 
Washington V State, 951 A 2d 885 (Md. App 2008) "the court noted that the 
absence of evidence can be a basis of acquittal rather than a finding of innocence. 
Since the defendant did not have access to this evidence, she was denied this 
opportunity. Counsel had a constitutional right to obtain all evidence and materials 
needed to establish a proficient defense, as well as to advise the defendant properly 
of her plea. Brady V Maryland, 373 US.83(1963). The Supreme Court held that 
"non-disclosed evidence" is considered material only if there is a reasonable 
probability that had the evidence been disclosed to the defense, the result of the 
proceedings would have been different." The defendant having all of the evidence 
against her or they would have allowed her to make an informed plea and possible 
led her to go to trial. 
Ground 2: 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 7 of 34

Counsel was ineffective because he hurriedly implored the defendant to sign her 
plea agreement due to the fact that the government would not speak with me until 
after the plea agreement was signed. "To act voluntarily and knowingly 1) The 
guilty plea must be done free from coercion", Fed.R.Crim. P. 11 ), which did not 
occur because of this sense of urgency that counsel upheld. Counsel continuously 
stated that "I have issues with your guilty plea." However, he never made known to 
the defendant the specifics of his concerns. He did not advise the defendant to 
withdraw her guilty plea (change of plea option) or other defense options. Counsel 
moved forward with the guilty plea, even after expressing his uncertainty of if the 
guilty plea was the correct decision or not. The defendant would like to request an 
evidentiary hearing to see if these concerns were ever addressed with the 
government. 
Fed. R. Crim. P. 11. As the Eleventh Circuit has stated, "a guilty plea involves the 
waiver of a number of the defendant's constitutional rights, and must, therefore, be 
made knowingly and voluntarily to satisfy the requirements of due process. United 
States v. Moriarty, 429 F. 3d 1012, 1019 (11th Cir 2005)(Citations omitted) A 
guilty plea is constitutionally voluntary when a defendant "receives real notice of 
the true nature of the charge against him." United States v Presendiew, 880 F.3d 
1228, 1238 (11th Cir 2018)(citation and quotation and responsibility to conduct an 
inquiry to whether the defendant makes a knowing and voluntary guilty plea." 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 8 of 34

United States v Lundi, 2022 U.S. App Lexis 25556, *3-4 (11th Cir 2022)(per 
curiam). This inquiry-known as a plea colloquy must "specifically (2023 U.S. Dist. 
Lexis 12) address three 'core principles; ensuring that a defendant 1) enters his 
guilty plea free from coercion, 2) understands the nature of the charges and 3) 
understands the consequences of his plea." 
While a district court's failure to address any of these core principles may warrant 
reversal, "any variances or deviations .... That do not affect a defendant's 
substantial rights constitute harmless error. "United States v Hernandez - Frave, 28 
F. 3d 945, 949-50 (11th Cir 2000.) Counsel's insistence to "hurry up and sign" the 
plea agreement violates the core principles of rule 11-1 therefore the defendant is 
entitled to immediate relief. 
Ground 3: 
Ineffective assistance of counsel due to counsel objecting to challenging loss 
calculation/intended loss amount. This case involves perennial harm. Counsel do 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 9 of 34

their defendant a disservice by not arguing the loss around which substantially 
affected her sentencing guideline range. He never contested the less amount during 
the pretrial phase or at sentencing, even after the defendant voiced her concerns 
because the money was returned once she was made aware that it was a scheme. In 
United States V Banks, o 19-3812 (3d Cir 2022), the US Court of Appeals for the 
Third Circuit in Philadelphia held that judges may not use intended loss. Instead, 
the may only rely on actual loss to calculate the range of criminal penalties 
applicable in fraud cases. Counsel should have argued that because the defendant 
asked her bank to send the money back to the lender as well as she alerted her co 
defendant (McDuffie) to do the same; her loss calculation and restriction amount 
should both be 55,000 as that was the amount that she received in her business 
account as payment for the referral. This fee was divided to and sent to Charles 
Knight ($25,000). The 11th circuit sustained in United States v Alford that the 
§2B 1.1 does not define law and neither side argues it is a term art in this context. 
The text of §2B 1.1 does not define "loss," and neither side argues it is a term of art 
in this context. The Court thus begins, as it must, by employing traditional tools of 
statutory construction to determine whether "loss" as used?? 2B 1.1 (b )(1) is 
genuinely ambiguous. See Kisor, 139 S. Ct. at 2414-15. It is worth noting at this 
point that neither the Supreme Court nor the Eleventh Circuit has considered this 
precise issue. Other circuits have turned to the "ordinary, contemporary, common 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 10 of 34

meaning" of the term "loss" and, in doing so, have identified a "range of meanings 
that a reasonable person would understand a word like 'loss' to have." See United 
States v. Riccardi, 989 F.3d 476,486 (6th Cir. 2021) (applying the Kisor 
framework and holding that "the commentary' s $500 minimum loss amount for 
gift cards does not fall within the zone of any ambiguity" in the term "loss " under 
?? 2Bl.l(b)(l); see also United States v. Kirilyuk, 29 F.4th 1128, 1137-38 (9th Cir. 
2022) (same). For example, 
one dictionary defines ["loss"] to mean, among other things, the "amount of 
something lost" or the "harm or suffering caused by losing 5 The Eleventh Circuit 
has not yet considered the Kisor decision in the context of Guidelines interpretive 
commentary. However, it has applied the Kisor framework for Auer deference in 
other contexts. See, e.g., United States v. US Stem Cell Clinic, LLC, 998 F.3d 
1302, 1308 (11th Cir. 2021) ( observing that courts faced with a challenge to an 
administrative rule may" [no longer] ... simply wave the ambiguity flag and defer 
to the agency's interpretation " ); see also Dobson v. Sec'y of Health & Hum. Serv 
., 2022 WL 424813 (11th Cir. 2022) (FDA interpretation of prescription coverage 
provision of Medicare Part-D statute); Rafferty v. Denny's , Inc., 13 F. 4th 1166 
(11th Cir. 2021) (Department of Labor interpretation of dual-jobs regulation). 
or being lost." American Heritage Dictionary of the English Language 1063 (3d ed. 
1992). Another says it can mean "the damage, trouble, disadvantage, [or] 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 11 of 34

deprivation ... caused by losing something" or "the person, thing, or amount lost." 
Webster's New World College Dictionary 799 (3d ed. 1996). A third defines it as 
"the being deprived of, or the failure to keep (a possession, appurtenance, right, 
quality, faculty, or the like)," the "[d]imunition of one's possessions or advantages," 
or the "detriment or disadvantage involved in being deprived of something[.]" 9 
Oxford English Dictionary 3 7 (2d ed. 1989). See Riccardi, 989 F.3d at 486. This 
Court' sown consultation of contemporary dictionaries yielded similar definitions. 
See, e.g., Loss, MERRIAM-WEBSTER.COM DICTIONARY (2022) (defining 
loss to include the "physical, emotional, or especially economic harm or damage 
sustained"); Loss, THE BRITANNICA DICTIONARY (2022) ( defining loss to 
include a "failure to keep or to continue to have something," and "the experience of 
having something taken from you or destroyed"). 
"These definitions show that 'loss' can mean different things in different contexts." 
See Riccardi, 989 F.3d at 486. It can encompass economic, emotional, and/or 
physical harms. See id. And "[e]ven in the economic realm," it "might cover only 
the precise value of, say, [an item] that is stolen ... [o]r it might include the costs 
associated with" replacing the stolen item. See id. Nevertheless, there is at least 
one element shared by all of the "ordinary, contemporary, common meaning[s]" for 
the word "loss" in all of its various contexts concrete materialization of hann. 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 12 of 34

There is no reasonable construction of the "plain and ordinary meaning" of loss 
that includes harm that did not actually materialize. See 
Fulford, 662 F.3d at 1177. The term is unambiguous in that respect. 6 
Consequently, the Court "has no business deferring to any other reading" of the 
term, no matter how much the Government insists that doing so "would make more 
sense." See Kiser, 139 S. Ct. at 2415. 
Based on the foregoing, it is clear that the Guidelines commentary defining "loss" 
to include "intended loss" is not due Auer deference. Section 2B 1.1 is driven by 
"the amount of loss caused by the defendant's offense," see United States v. 
Souffrant, 517 Fed App'x 803, 821 (11th Cir. 2013), which plainly means, as 
explained above, the economic, emotional and/or physical harm that actually 
occurred. "Loss" cannot mean harm that never materialized. Yet the Guidelines 
commentary broadens the term "loss" to include harm of precisely that nature by 
inserting "intended loss" into its definition. 
7 See U .S.S.G. ?? 2B 1.1 at cmt. n.3(A)(ii). In doing so, the commentary does not 
"illuminate the meaning of 'loss,' but modifies it." See Kirilyuk, 29 F.4th at 1138. 
And the modification is so far afield from any contextual zones of ambiguity 
inherent in the ordinary meaning of the word "loss" 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 13 of 34

that the commentary is rendered plainly inconsistent with the text of §2B 1.1 (b )( 1 ). 
The Government has identified nothing in the structure, history or purpose of this 
guideline that supports such an expansive view of the term "loss. " "Deference in 
[this] circumstance would permit the [Sentencing Commission], under the guise of 
interpreting a [Guideline], to create de facto a new [Guideline]." See Kisor, 139 S. 
Ct. at 2415. " Auer does not, and indeed could not, go that far." See id . 
The Court recognizes that it, other district courts in this circuit, and the Eleventh 
Circuit Court of Appeals have routinely applied "intended loss" in past Guidelines 
calculations. See, e.g., United States v. Baldwin, 774 F.3d 711 , 727-28 (11th Cir. 
2014); United States v. Barrington, 648 F.3d 1178, 1197-98 (11th Cir. 2011 ); 
United States v. Fisher, o. 3: l 9cr076, 2021 WL 1886000, at* 1-2 ( .D. Fla. May 
11 , 2021); Bah v. United States, 2015 WL 5092569, at *2 (S.D. Ga. Aug. 27, 
2015). In each case, the respective court fairly "reflexive[ly]" deferred to the 
Sentencing Commission's interpretation of loss under §2B 1.1 (b )( 1 ), which, again, 
includes harm that did not actually materialize. But none of the cases nor any 
others cited by the Government or found by the Court engaged in the Kisor process 
of exhausting the traditional tools of construction to conclude that §2B 1.1 was 
genuinely ambiguous before turning to the Commentary. See Kisor, 139 S. Ct. at 
2415. Moreover, none of the cases cited by the Government (or any other) 
determined that the Sentencing Commission's definition of "intended loss" could 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 14 of 34

reasonably be read into any zone of ambiguity inherent in the term "loss." See id . 
at 2415-16. Because these issues do not appear to have been squarely addressed or 
even raised in this circuit ( or in the Supreme Court, for that matter), this Court is 
free to consider them on the merits. See United States v. Jackson, 36 F.4th 1294, 
1305 (11th Cir. 2022) ( quoting Webster v. Fall, 266 U.S. 507, 511 (1925)) 
("Questions which merely lurk in [a] record, neither brought to the attention of the 
court nor ruled upon, are not to be considered as having been so decided as to 
constitute precedents."). 
In light of Kisor's clarifications on deference to administrative agencies and the 
Court's own careful consideration of the Guidelines and accompanying 
commentary, the undersigned concludes that "intended loss" does not "fall within 
the bounds of reasonable interpretation" for the term "loss" in §2Bl.l(b)(l). 
Applying this to the defendant's case the actual loss amount is $830,417.00. 
Counsel, therefore, should have objected to the intended loss amount set forth by 
the government. (PSR, p.31 )( see note) Had the counsel advised defendant to go to 
trial, a; point would have been made that the defendant received $20,000 from 
what she believed at the time that she was seemingly a referral source. The lenders 
received all of the funds back with the exception of .... The $830,417 defendant 
should have received credit for this and been sentenced within the guideline range 
for this amount, instead of the intended loss amount of $2.3 million. At it's highest, 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 15 of 34

the defendant's loss amount should have been $830,417, and 55,000 at its lowest, 
which is the amount that the defendant actively received. Therefore, had this 
objection been rai ed, the guideline calculation as well as the specific offense 
characteristic enhancement calculations would have varied downward, thus, 
creating a different outcome at the time of sentencing for the 
defendant. Furthermore, in United States V Brandon Dupree, case number 19-
13 776, this court ruled that "under the plain text of §4131 .2, conspiracy to commit 
a drug offense is not a controlled substance offense". USSG §4B l .2(b ). Indeed, the 
text doesn't not mention any inchoate offenses, so the provision is unambiguous 
and there is no occasion to resort to the commentary. See Kisor, 139.S.Ct at 241 5. 
Thus, under §4131 .2 plain text, a conspiracy offense does not qualify as a 
"controlled substance offense." Moreover, when the commission was not 
interpreting §4131.2 's text, it was adding to the text. Application 1 is, therefore, 
also unenforceable for that reason. See Stinson, 508 US at 45. Accordingly the 
court erred when it sentenced Mr. Dupree as a career offender. 
In holding to the contrary, the panel relied on Smith, in which this court 
concluded without reasoning that Application l "does not run afoul of the 
constitution, nor is it in consistent with, or a plainly erroneous reading of sections 
4131.1 or 4131.2" 54F.3d at 693. 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 16 of 34

But out-of-circuit cases show that this court decided Smith incorrectly and that 
the Eleventh Circuit's current rule thus creates a circuit split on this issue. 
Specifically, the en bane Third Circuit, the en bane Sixth Circuit, and the D.C. 
Circuit have held that Application Not 1 is unenforceable because it adds to 4131.2 
text. United States V Nasir, 982 F.3d l 44(3d Cir. 2020)( en bane); United States V 
Havis, 927 F.3d 382,386 (6th Cir. 2019)(en bane); United States V Winstead, 890 
F.3d 1082.1092(DC Cir. 2018). The Third Circuit's en bane decision in Nasir is 
particularly instinctive. 
In Nasir, the Third Circuit explained that Application Note 1 expanded the 
definition of "controlled substance offense," and in that light of the Supreme 
Court's recent decision in Kiser, the court had to reconsider whether to give 
Application Note 1 binding effect after considering all the traditional tools of 
statutory construction. 
The grant of rehearing en bane suggest that this court may likely follow the lead 
of the cases noted above and revisit its body of law interpreting this and similar 
guideline commentary in light of Kisor. 
We're that to occur, then the sentencing in the defendant's case would be subject 
to remand because the defendant was sentenced based on guideline loss amount 
which was unreasonably determined under guideline commentary based on so 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 17 of 34

called "intended loss" not actual loss. Christian's loss amount was determined 
based on an incorrect concept of "intended loss" grafted onto, again, an ambiguous 
guideline which only spoke of loss. 
That rehearing en bane in Dupree may also affect the defendant's guideline issue 
is clear from the Sixth decision in United States V Ricardo, 989 F.3d 476 (6th Cir 
2021. Only the guidelines (not the commentary) must go through notice-and -
comment rule making 28 U.S.C. &994(x). So if the commission could freely 
amend the guidelines by amending the commentary, it could avoid these notice-
and-comment obligations. The healthy judicial review that Kisor contemplates thus 
will restrict the commission's ability to do so. 
United States V Ricardi, 989 F 3d 476, 481-482, 484-85(6th Cir. 2021). 
In conclusion of the ground, counsel should have argued that the guideline 
definition means loss means what it says loss, and it was error to apply the 
commentary which enhanced the guideline level based on intended loss, and 
therefor her case must be remanded for resentencing based on actual loss. 
Losses caused by conduct that falls outside the temporal scope of the acts of 
conviction, and "every dollar must be supported record evidence." (Sharma, 703 F 
.3d at 323' see also 18 U.S.C 3664(e).The burden of demonstrating the amount of 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 18 of 34

loss sustained by a victim as a result of the offense shall be on the attorney for the 
government. The mandatory restitution to the victims of certain crimes statues 
"limits restitution to the actual loss directly and proximately caused by the 
defendant's offense of conviction.(Sharma, 703 F .3d at 323.) The only record 
evidence the Government would have had would have been the defendant's actual 
bank account statement which would have shown the wire for the $55,00. The 
Goven1ment would have not met the burden of factual proof to demonstrate an 
actual loss amount of $835,000 on behalf of the defendant. 
Ground 4: 
Counsel was ineffective due to not objecting to the submission of "intent and 
willful" element. The defendant lacked the knowledge and intent to participate in a 
fraudulent scheme. According to Black's Law dictionary "actus no facet reom, 
nisei mens sit rea" means act does not make a man guilty unless he be so intention. 
"The defendant made known to counsel that based on the phone call that was held 
on or around January/February 2020 with codependents she believed that she was 
working as a referral source, referring small business owners to them via email. 
She was instructed to retrieve basis infonnation from them and send them to Mrs 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 19 of 34

Slaton. This information included; name, addresses (business and personal), phone 
number (business and personal) and business, email address, and social security 
card, driver's license, and bank account, as well as a bank letter or voided check, 
and bank statement. They slated that these loans were government backed and that 
they had tax attorneys and accountants on board to prepare the applications. These 
were the only documents the defendant provided. The defendant did not know 
these individuals personally she had net them via Facebook in July of 2019. To act 
with "intent to defend means to act "knowingly and with the specific intent to use 
false or fraudulent pretenses, representations or promises to cause loss or injury. 
Proving intent to deceive alone, without the intent to cause loss or injury is not 
sufficient to prove intent to defraud. 827 F.3d;; United States v Takhalov. 
The defendant believed at the time that she was assisting small business owners to 
obtain legitimate back loans backed by the government. her fault lies in not 
questioning the manner and means in which her defendants were applying for and 
obtaining said loans. She did not see the application for Transportation 
management's loan which was processed prior to the Ian for Advertising and Then 
Some. It was at this time that she questioned the co-defendants about information 
that was incorrect on the loan application. This is when she realized something was 
not quite right. In Pereira v United States, the United States Supreme Court held 
that the requirement for active participation is satisfied when a person actively 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 20 of 34

participates in a criminal venture with full knowledge of the circumstances 
constituting the charged offense. Pereira v United States, 34 7 U.S. 1, 12, 74 S.Ct 
358,98L.Ed.435. "The Government must establish that the defendant agreed to 
jointly undertake the activities with the third person, and that the particular crime 
was within the scope of that agreement. See United States v Evbuomwan, 992 F 
.2d 70,74(5th Cir .1993) As the sentencing commentary to the sentencing 
guidelines explain: {The }scope of the" jointly undertaken criminal activity" is not 
necessarily the same as the scope of the entire conspiracy, and hence relevant 
conduct is necessarily the same for every participant. In order to determine the 
defendant's accountability for the conduct of others ... the court must first determine 
the scope of the criminal activity the defendant agreed to jointly undertake (i.e. the 
scope of the specific conduct and objectives embraced by the defendant's 
agreement.) In doing so, the court may consider any explicit agreement fairly 
inferred from the conduct of the defendant and others. Accordingly, the 
accountability of the defendant for the acts of others is limited by the scope of his 
or her agreement to jointly undertake the particular criminal activity. Acts of others 
that were not within the scope of the defendant's agreement, even if those acts were 
known or reasonably foreseeable to the defendant, are not relevant conduct. 
(U.S.S.G 1B1.3cmt. 3.(B). The defendant had no knowledge of the fraudulent 
941 's bank statements that her co-conspirators created, had made for supplied to 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 21 of 34

this scheme. Her counsel should have further should have pointed or acknowledge 
this fact. "Intent is normally a question of fact to be resolved at trial." See 
Morissette v United States, 342 U.S. 246 274,72 S. Ct. 240 96 L. Ed. 22 (1952). 
"Where intent of the accused is an ingredient of the crime charged its existence is a 
question. The defendant was advised to plead guilty without seeing the 
discovery's/material evidence and without a trial that could have ended in an 
acquittal if the this only evidence held against her were the three exhibits shown to 
her on the day of the sentencing hearing. She was denied the opportunity for trial. 
Again Morrisette held that "the existence of such intent was not to be presumed as 
a matter of law, but was to (pg 289) be found by the jury upon the isolated act of 
taking." 
The United States v Vernon 593 Fed Appx 883 
"To commit a conspiracy offense under 18 U.S.C.S. &1349 a defendant must 
knowingly and willfully join an unlawful scheme to defraud. The government may 
prove the defendant's knowledge of the scheme through circumstantial evidence." 
Counsel here lacked the material evidence to guide the defendant to a guilty plea or 
to advise her of a trial. Had counsel challenged the sufficiency of the government's 
evidence. 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 22 of 34

Ground 5: 
Counsel was ineffective due to withdrawing role enhancement objection; for role 
enhancement as a recruiter prior to sentencing and not discussing this strategy. 
With defendant, which yet again affected her guideline range. 
"The proponent of the downward adjustment always bears the burden of proving 
a migrating role in the offense by a preponderance of the evidence. This principle 
has been recognized by every circuit. It falls to the district court, then, to evaluate 
the evidence presented and deterrent whether this burden has been satisfied." 
Counsel failed to file a motion for an evidentiary hearing so that the defendant 
could measure for herself the government's material evidence regarding her role in 
this scheme. While she did refer Rick McDuffie as far as sending his information 
over to her co-defendant Mrs. Slaton, him coming to her office because he did not 
have a scanner in his office, did not in fact designate her as a recruiter. The 
defendant did not hold any sort of sphere of influence over McDuffie and never 
know or spoke to the owners of Transportation Management. However, she did 
forward their information for Charles McKnight to Mrs. Slaton. Mr. McKnight 
could have sent thi email himself. As he introduced the defendant to Mrs. Slaton. 
Also, as soon as the defendant was made known about the scheme by her bank, she 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 23 of 34

informed Mr McDuffie to not move forward with his loan. Defendant upholds that 
she was not essential to the conspiracy." Newly amended U.S. Sentencing 
Guidelines Manual 3Bl.2 now states that a defendant who does not have a 
proprietary interest in the criminal activity and task should be considered for the 
minor role reduction, and the fact that a defendant performs an essential or 
indispensable role in the criminal activity is not determinative. Again, the 
defendant was paid a referral fee for referring Transportation Management, but she 
lacked the scope, structure, planning and organizing of the scheme. She was only 
told to gather and email business information to Mrs. Slaton, which she did do, and 
Mr McDuffie came to her office only to use her scanner. This was something he 
could have done on his own in his office if he had a scanner. Due to this objection 
withdrawal prior to sentencing, the defendant maintained a 3 point recruiting role 
enhancement. However, under U.S. Sentencing Guideline Manual 3131.2 
subsection(a), this provision, "the defendant's lack of knowledge or understanding 
of the scope and structure of the enterprise and of the activities of others is 
indicative of a role as a minimal participant. The defendant was not aware that her 
co-defendants would be creating falsified or fraudulent documents to obtain these 
loans. She was never told, given, emailed, seen any 941 's, or bank statements that 
was submitted to lenders. Therefore, the defendant's offense level would have 
decreased by 3 levels because she would have fallen between a minimal (a) and 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 24 of 34

minor participant in this scheme. Thus again changing her guideline calculation at 
sentencing. 
In United States v Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016) the 
inth Circuit, 
remanded for re-sentencing a case where the record was unclear as to .... whether 
[the] district court, in denying defendant a minor role reduction, considered all of 
the factors set forth in amended guideline goven1ing the minor role reduction; 
counsel again was ineffective for not asking the court to consider these factors as 
well as not anything to object to this enhancement. 
Ground 6: 
Counsel was ineffective for failure to argue 3553(a) factors "the need to avoid 
unwarranted sentencing disparities among defendant with similar conduct." (18 
U.S.C.S. 3553 -6). 
While counsel did file a sentencing memorandum on behalf of the defendant he 
failed to object to the government's sentencing recommendation on or before the 
day of sentencing which also speaks to ground 1 and 3 of this motion. Had counsel 
and the defendant reviewed discovery as well as had counsel argued for sentencing 
under the actual loss amount on behalf of the defendant, the loss amount once 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 25 of 34

successfully argued for sentencing under the actual loss amount on behalf of the 
defendant, the loss amount once successfully argued would have been $830,417, 
which would have also been the equivalent of the defendant's restitution, thus 
resulting in a lower sentencing guideline range. 
Upon reviewing various cases from both the 11th District and others, there have 
been substantial variances in sentencing with defendant's with similar conduct and 
similar records. In United States Vs Crowther, the defendant was sentenced to 27 
months of imprisonment, followed by 36 months of supervised release and 
restitution in the amount of $2,068,700. The court granted Crowther a generous 
downward variance to just 37 months from his 63-78 month guideline range. Doc 
179 at 130, 154-60. (11th Cir. 2021 ). In United States v Gilroy, the defendant was 
sentenced to 19 months imprisonment and 3 years of supervised release, $100.00 
assessment, and $919,565.03 in restitution. The sentence was over 40% below the 
bottom of her guideline range of 33-41 months and the sentence imposed was 
based on actual and not intended loss. (United States v Gilroy, 10th District.) 
Furthermore, in United States v Charmaine Redding, the defendant, was sentenced 
to 27 months imprisonments, 3 years of supervised released and $1,159,138.31 in 
restitution as well as a $100 assessment. (United States v Charmaine Redding, 11th 
District, 2021.) This sentence was also based on actual loss. Counsel never made a 
point to object to the loss calculation which had a substantial bearing on the 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 26 of 34

defendant's guideline range in her (PSR), thus affecting her sentence ( eventual 
sentencing), thus furthering prejudice in the defendant's case. In United States v 
McCoy, 981 FJd.271, 286 ( 4th 2020) it was affirmed that the consideration of the 
gross disparity between defendant's sentences and the sentences Congress now 
believes to be an appropriate penalty for the defendant's conduct." A prisoner's 
sentence may present an extraordinary and compelling basis for relief if the 
prisoner would receive a dramatically lower sentence than the one that they are 
serving" "were they sentenced today." (United States v Elzey 09-CR-0288, 2022 
U.S. District Lexis Nexis 19515-2022 WL 316 717 at 2DMd. February 2, 2022) 
Quoting United States v Decater F. Supp 3d.320.384(D.Md.2020) aff'd sub nom. 
McCoy 981 F.3d 271). 
The defendant asks for relief on the grounds that defendants in like situations, 
received lower sentences. This circuit and other circuits hold that sentencing 
disparities is grounds for relief. 
Conclusion 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 27 of 34

It is with the aforementioned grounds that I ask this court to grant me relief and an 
evidentiary hearing at which time these factors will be able to be argued fully. 
Respectfully submitted, 
Amanda Christian 
Case Citations: 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 28 of 34

United States v Sharma, 703 F .3d 318,323 (5th Cir. 2012) 
United States v Fisher, 640 F.3d 645,648 (5th Cir. 2011) 
United States V Frazie, 387 .2d 1244(11 th Cir. 2004) 
Maryland: Washington v State,951 A 2d 885( Md. App. 2008) 
Brady V Maryland, 373 U.S. 83,87,83 S. Ct. 1194, l0L.E 2d 215( 1963) 
United States v Banks, No 19-3812 (3d Cir. 2022) 
Pereira v United States,347, U.S. 1,12,74, S. Ct. 358, 98L. Ed 435 
Morissette v United States, 342 U.S. 246,274, 72 S. Ct. 240 96L Ed. 22(1952) 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 29 of 34

United v Takhalov, 827 F .3d 1307 
United States v Vernon, 593 F. 883 
United States v Quintero-Leuyva, 823 F. 3d 519 ( 9th Cir. 2016) 
United States v Souffrant, 517 FedApp'x 803,821 (11th Cir. 2013) 
United States V Ricarrdi. 989 F 3d 476,486 (6th Cir. 2021) 
United States v Fulford , 662 F. 3d at 11 77 
United States v Jackson, 3d F 4th 1294, 1305 (11th Cir. 2022) 
Webster v Fall, 266 U.S. 507,511,45 S. Ct. 148, 69 L. Ed. 411 (1925) 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 30 of 34

United States v Baldwin, 774, F .3d 711 ,727,-28 (11th Cir. 2011 ) 
United States v Barrington, 648 F. 3d 1178, 1197-98( 11th Cir. 2011) 
United States v Fisher No.3: 19cr076, 2021 U.S. Dist. Lexis 89548, 2021 WL 
1886000 at 1-2( N.D.Fla May 11 , 2021) 
Bah v United States, 2015 U.S. Dist. Lexois 113899, 2015 WL 5092569 *at ( S.D. 
Ga. Aug. 27, 2015) 
United States v De Varon, 175 F .3d 930 ( 11th Cir. 1999) 
Kisor v Wilkie, 139 S. Ct. 240, 2415 (2019) 
United States v Stinson, 508 U.S. 36, 45 ( 1993) 
United States v kirilyuk, 29 F. 4th 1128, 1137-38 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 31 of 34

United States v Eubuowan, 992 F .2d 70,74 ( 5th Cir. 1993) 
Rules 
Rule 11, Fed. R. Crim. P 
Rule 16, Fed. R. Crim. P 
Statutes 
28 U.S.C 994(x) 
U.S.S.G 2Bl.1 
18 U.S.C. 3663(a) 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 32 of 34

U.S.S.G lBl.3 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 33 of 34

I ii 
ftmonda. Oi~sf;aY) 
55q2.9 - 5o9 
f3/~ -~t -L 
Fe,Jer a.l Pr;<jo r'l Ca.rYlp 
Po Sox ·A 
Ald e.r-s<:in 
I wv z4q /0 
Retail 
EXPECTED DELIVERY DAY 09/11/23 
USPS TRACKING®# 
II 
1111 
11 II I 
9505 5108 0189 3251 1822 25 
U.S. POSTAGE 
PM 
PAID 
COLUMB/ 
SEP 08, 2~3sc 29229 
30303 
o Lb a.so Oz $9.85 
R2303S 102537-04 
Case 1:20-cr-00296-JPB-CMS     Document 722     Filed 09/13/23     Page 34 of 34

File and source

File

gov.uscourts.gand.292218.722.0.pdf

Size

2,390,775 bytes

SHA-256

41d2108891f5d42fb25be51fd9f046cf45dff3e510e3013ba7764e5898d9d1d3

Our copy

gov.uscourts.gand.292218.722.0.pdf

Original

PACER (login required)