Order — Ricky Dixon, No. 1:20-CR-00296-JPB-CMS-6 (Dkt. 1153, N.D. Ga.)
Summary
In this order filed December 9, 2024 (Doc. 1153, N.D. Ga.), U.S. District Judge J. P. Boulee adopts Magistrate Judge Catherine M. Salinas's report and denies Ricky Dixon's 28 U.S.C. § 2255 motion to vacate (Criminal Action No. 1:20-CR-00296-JPB-CMS-6). Dixon pleaded guilty on August 1, 2022 to aggravated identity theft (Count 29) and conspiracy to commit money laundering (Count 62) for submitting a false loan application, false IRS Form 941s and false payroll spreadsheets to obtain Paycheck Protection Program funds, and was sentenced on January 25, 2023 to 100 months. The court overrules all three objections: the Indictment tracked the statutes, it was not constructively amended, and Dubin v. United States does not help because Dixon used S.R.'s name and social security number on the loan request. A certificate of appealability is denied.
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Case 1:20-cr-00296-JPB-CMS Document 1153 Filed 12/09/24 Page 1 of 11
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RICKY DIXON,
Movant, CRIMINAL ACTION NO.
1:20-CR-00296-JPB-CMS-6
v.
CIVIL ACTION NO.
1:24-CV-00099-JPB
UNITED STATES OF AMERICA,
Respondent.
ORDER
This matter is before the Court on United States Magistrate Judge Catherine
M. Salinas’s Final Report and Recommendation (“R. & R.”), [Doc. 1132], in
which the Magistrate Judge recommends that the pending 28 U.S.C. § 2255
Motion to Vacate (“Motion to Vacate”), [Doc. 800], be denied. Movant Ricky
Dixon (“Movant”) has filed his objections to the R. & R. [Doc. 1137]. This Court
finds as follows:
BACKGROUND
On August 1, 2022, Movant entered a plea of guilty to Counts 29 and 62 of
the Second Superseding Indictment (“Indictment”) charging him with aggravated
identity theft and conspiracy to commit money laundering. [Doc. 519]. On
January 25, 2023, the Court sentenced Movant to 100 months of imprisonment
Case 1:20-cr-00296-JPB-CMS Document 1153 Filed 12/09/24 Page 2 of 11
followed by a term of supervised release. [Doc. 624]. Movant’s convictions were
the result of his active participation in a scheme to submit false materials—such as
a false loan application, false IRS Form 941s and false payroll spreadsheets—to a
financial institution to fraudulently obtain funds from the Paycheck Protection
Program, which was enacted in response to the COVID-19 pandemic. See [Doc.
642, pp. 16–19]. Movant did not appeal his convictions or sentence, but on
January 4, 2024, he filed the instant Motion to Vacate raising three grounds for
relief. [Doc. 800].
After requiring the Government to respond to the Motion to Vacate, the
Magistrate Judge reviewed the parties’ arguments and recommended that the
motion be denied. See [Doc. 1132]. As to Movant’s three grounds for relief, the
Magistrate Judge found the following. First, the Magistrate Judge determined that
Movant’s primary argument—wherein he claimed that his trial counsel was
ineffective for failing to challenge the Indictment—is unavailing because Movant
failed to demonstrate that the Indictment itself was defective. Id. at 6–10. Second,
the Magistrate Judge rejected Movant’s contention that his trial counsel was
ineffective for failing to object to the Government’s alleged constructive
amendment of the Indictment because Movant did not establish that the Indictment
was actually amended. Id. at 10–12. Third, the Magistrate Judge determined that
2
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Movant’s argument that he is actually innocent of aggravated identity theft because
of an intervening change in the law fails because Movant waived his right to raise
the claim in his plea agreement. Id. 12–15. Finally, the Magistrate Judge
recommends that Movant’s request for an evidentiary hearing and a Certificate of
Appealability be denied. Id. at 15–17.
LEGAL STANDARD
A district judge has broad discretion to accept, reject or modify a magistrate
judge’s proposed findings and recommendations. United States v. Raddatz, 447
U.S. 667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any
portion of the Report and Recommendation that is the subject of a proper objection
de novo and any non-objected-to portion under a “clearly erroneous” standard.
Notably, a party objecting to a recommendation “must specifically identify those
findings objected to. Frivolous, conclusive, or general objections need not be
considered by the district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th
Cir. 1988) (citation omitted). It is reasonable to place this burden on the objecting
party because “[t]his rule facilitates the opportunity for district judges to spend
more time on matters actually contested and produces a result compatible with the
purposes of the Magistrates Act.” United States v. Schultz, 565 F.3d 1353, 1361
(11th Cir. 2009).
3
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DISCUSSION
In his objections, Movant challenges all of the Magistrate Judge’s
determinations.
I. Movant’s First Objection to the R. & R.
As noted above, in his first objection, Movant contends that his trial counsel
was ineffective for failing to object to the allegedly defective Indictment. Count
29 of the Indictment charged that Movant, in violation of 18 U.S.C. § 1028A(a)(1),
did knowingly possess and use, without lawful authority, a means of
identification of another person, that is, a social security number and
date of birth belonging to “S.R.,” during and in relation to a felony
offense, that is, Conspiracy to Commit Wire Fraud, in violation of
Title 18, United States Code, Section 1349, as alleged in Count
Twenty-Seven of this First Superseding Indictment. 1
[Doc. 290, p. 53].
Count 62 of the Indictment charged that Movant and others, in violation
of 18 U.S.C. § 1956(h),
did knowingly combine, conspire, and agree with each other, with
Darrell Thomas, and with others known and unknown to the Grand
Jury to commit offenses against the United States in violation of Title
18, United States Code, Section 1956, to wit, to knowingly conduct
and attempt to conduct financial transactions affecting interstate
1
The Court notes that, although the quote above refers to the “First Superseding
Indictment,” this appears to be an error. As such, the Court construes any reference to the
“First Superseding Indictment” contained in the Indictment, [Doc. 290], to mean the
“Second Superseding Indictment.” Nevertheless, the Court notes that this non-
substantive error does not compromise the validity of the Indictment.
4
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commerce and foreign commerce, which transactions involved the
proceeds of specified unlawful activity, that is, wire fraud, in violation
of Title 18, United States Code, Section 1343, knowing that the
transactions were designed in whole and in part to conceal and
disguise the nature, location, source, ownership, and control of the
proceeds of specified unlawful activity, and while conducting and
attempting to conduct such financial transactions, knowing that the
property involved in the financial transactions represented the
proceeds of some form of unlawful activity, in violation of Title 18,
United States Code, Section 1956(a)(1)(B)(i).
Id. at 72–73.
Movant’s first issue with the language of the Indictment is that, according to
him, Count 29 of the Indictment failed to further allege that he knew that the
means of identification belonged to another individual, which Movant contends is
a requirement under the law. [Doc. 1137, pp. 2–5]. However, as the Magistrate
Judge determined, the authority which Movant cites, the unpublished case United
States v. Becerra-Rodriguez, No. 21-10930, 2021 WL 5145248 (11th Cir. Nov. 5,
2021), stands only for the proposition that the prosecution’s burden of proof to
establish guilt at trial requires the Government to establish such knowledge. See
Flores-Figueroa v. United States, 556 U.S. 646, 657 (2009). The standard for
evaluating the sufficiency of an indictment is not so demanding. The Magistrate
Judge explained that because the Indictment tracks the statutory language and
approximately states the time and place of the alleged offense, the Indictment is
sufficient. See United States v. Moore, 954 F.3d 1322, 1332 (11th Cir. 2020)
5
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(citing United States v. Brown, 752 F.3d 1344, 1353 (11th Cir. 2014)). Count 29
of the Indictment satisfies that standard.
Movant also objects that the Magistrate Judge relied on an Eighth Circuit
Court of Appeals opinion for the proposition that an indictment which charged
aggravated identity theft was sufficient where, although the indictment did not
plead knowledge as discussed by the United States Supreme Court in Flores-
Figueroa, it tracked the language of 18 U.S.C. § 1028A(a)(1). [Doc. 1132, p. 5–6];
United States v. Prelogar, 996 F.3d 526, 532 (8th Cir. 2021). However, binding
precedent from the Eleventh Circuit Court of Appeals requires only that the
indictment track the language of the statute. See Moore, 954 F.3d at 1332. Since
there appears to be no Eleventh Circuit case directly on point, the Magistrate
Judge’s reliance on persuasive authority does not render her conclusion incorrect.
Moreover, at Movant’s change of plea hearing the Government properly
recited the elements that it must prove to establish Movant’s guilt as to Count 29,
including that Movant “knew that the means of identification belonged to an actual
person.” [Doc. 642, pp. 13–14]. Accordingly, this Court agrees with the
Magistrate Judge that Movant’s counsel had no reasonable basis to challenge
Count 29 of the Indictment.
6
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Movant also contends that Count 62 of the Indictment failed to allege the
element that his participation in the conspiracy was voluntary. [Doc. 1137, pp. 7–
8]. However, as with Count 29, Count 62 tracks the language of the statute, and, as
the Magistrate Judge determined, the word “knowingly” used in Count 62 is the
well-understood equivalent to “voluntarily” under Eleventh Circuit precedent. See
United States v. Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002). In objecting,
Movant mostly repeats the arguments made in his Motion to Vacate, and his
contentions that the Magistrate Judge erred are conclusory. Having reviewed the
matter, this Court agrees with the Magistrate Judge, and first objection to the R. &
R. is unavailing.
Accordingly, Movant’s first objection to the R. & R. is OVERRULED.
II. Movant’s Second Objection to the R. & R.
In his second objection, Movant argues that his trial counsel was ineffective
for failing to object to what Movant claims was the Government’s constructive
amendment of Count 29 of the Indictment. [Doc. 1137, pp. 9–10]. The Magistrate
Judge determined that Movant failed to show a constructive amendment of the
Indictment because the elements of Count 29 recited at the change of plea hearing
did not “broaden the possible bases for conviction beyond what is contained in the
indictment.” United States v. Philpot, 773 F. App’x 583, 589 (11th Cir. 2019)
7
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(quoting United States v. Behety, 32 F.3d 503, 508 (11th Cir. 1994)). In this
objection, Movant appears to assert more narrowly that he is entitled to a
certificate of appealability regarding this claim. See [Doc. 1137, pp. 9–10].
However, Movant has not shown how the Indictment was constructively amended,
and this Court agrees with the Magistrate Judge that Movant’s second objection
has no debatable merit. See [Doc. 1132, pp. 16–17]. As a result, Movant has not
shown that he is entitled to a Certificate of Appealability.
Accordingly, Movant’s second objection to the R. & R. is OVERRULED.
III. Movant’s Third Objection to the R. & R.
In his third objection, Movant contends that he is not guilty of Count 29, the
charge of aggravated identity theft, under the Supreme Court’s interpretation of 18
U.S.C. § 1028A(a)(1) as set forth in Dubin v. United States. 599 U.S. 110 (2023);
[Doc. 1137, pp. 10–12]. Dubin was a Medicare fraud case in which the defendant
overbilled Medicare for services rendered to a patient. 599 U.S. at 114–15. The
Government also charged the defendant with aggravated identity theft because he
used the patient’s identification to submit the inflated bill. Id. In rejecting the
defendant’s argument regarding § 1028A, the Supreme Court clarified the scope of
the statute, explaining that “[a] defendant ‘uses’ another person’s means of
identification ‘in relation to’ a predicate offense when this use is at the crux of
8
Case 1:20-cr-00296-JPB-CMS Document 1153 Filed 12/09/24 Page 9 of 11
what makes the conduct criminal.” Id. at 131. In other words, just because the
defendant used a patient’s name in submitting an inflated bill did not mean that he
committed identity theft under the statute. Movant contends that, under Dubin, he
is innocent of aggravated identity theft. See [Doc. 1137, pp. 10–12]. As such, he
argues that the appeal waiver in the plea agreement and his procedural default of
this claim should not apply under the miscarriage of justice exception. See id.
However, even if Movant is right that the waiver and procedural default
should not apply—which this Court does not concede—this Court disagrees with
Movant’s argument that Dubin renders him actually innocent of aggravated
identity theft. At the change of plea hearing, the Government explained how
Movant, without authorization, used the means of identification of an individual
with the initials S.R. on an SBA 7A Paycheck Protection Program loan request,
falsely identifying S.R. as the owner of the company applying for the loan. [Doc.
642, pp. 17–18]. In other words, Movant used the identity of another, without that
person’s consent, to fraudulently obtain money from the Government. According
to the Supreme Court, “identity theft is committed when a defendant uses the
means of identification itself to defraud or deceive.” Dubin, 599 U.S. at 123. At
the change of plea hearing, Movant admitted that he used S.R.’s name and social
security number in a fraudulent and deceitful manner which was clearly at the crux
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of his efforts to wrongfully obtain Paycheck Protection Program funds. See [Doc.
652, pp. 21–22]. This Court thus concludes that Dubin does not change the nature
of Movant’s crimes, and his third objection fails even if he can overcome the
waiver he signed and the default of his claim.
Accordingly, Movant’s third objection to the R. & R. is OVERRULED.
CONCLUSION
For the reasons stated herein, this Court agrees with the Magistrate Judge
that Movant has failed to demonstrate that he is entitled to relief under § 2255.
Accordingly, the R. & R., [Doc. 1132], is ADOPTED as the order of the Court,
and the pending § 2255 Motion to Vacate, [Doc. 800], is DENIED. This Court
further agrees with the Magistrate Judge that Petitioner failed to make “a
substantial showing of the denial of a constitutional right” and, as such, that a
Certificate of Appealability is DENIED pursuant to 28 U.S.C. § 2253(c)(2).
Finally, this Court agrees with the Magistrate Judge that Petitioner failed to allege
facts which, if proven, would entitle him to relief and, accordingly, his request for
an evidentiary hearing, [Doc. 800-1], is DENIED.
The Clerk is DIRECTED to close Case Number 1:24-CV-0099-JPB.
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SO ORDERED this 9th day of December, 2024.
________________________________
J. P. BOULEE
United States District Judge
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