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United States v. Fountain

United States District Court, E.D. Pennsylvania

December 5, 2016

UNITED STATES OF AMERICA
v.
PATRICIA FOUNTAIN, LARRY ISHMAEL

          JOEL H. SLOMSKY, J.

         ORDER

         AND NOW, this ___ day of ___, 2017, upon consideration of Defendants' Motions under 28 U.S.C. § 2255, the Government's Response, the other documents filed by the parties, and after review of the Report and Recommendation of United States Magistrate Judge Carol Sandra Moore Wells, is hereby ORDERED that:

         1. The Report and Recommendation is APPROVED AND ADOPTED; 2. The § 2255 Motions (Document Nos. 249, 251) are DISMISSED AND DENIED, without an evidentiary hearing; and 3. Defendants have neither shown denial of a federal constitutional right, nor established that reasonable jurists would disagree with this court's procedural disposition of their claims. Consequently, a certificate of appealability is DENIED.

         IT IS SO ORDERED.

          REPORT AND RECOMMENDATION

          CAROL SANDRA MOORE WELLS UNITED STATES MAGISTRATE JUDGE

         Presently before the court are Motions under 28 U.S.C. § 2255 filed by Patricia Fountain and Larry Ishmael. Fountain is serving a 228 month sentence at the Secure Female Facility-Hazelton; Ishmael is serving a 144 month sentence at the Federal Correctional Institution-Schuylkill; both raise identical claims of ineffective assistance of counsel and sentencing error. The Honorable Joel H. Slomsky referred this matter to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that all of Fountain and Ishmael's claims be dismissed or denied.

         I. BACKGROUND

         On direct appeal, the Third Circuit described the relevant factual background as follows.

Between 2007 and 2012, [Fountain], an IRS employee, helped orchestrate several schemes to fraudulently obtain cash refunds from the IRS. These schemes involved filing false tax returns that claimed refunds pursuant to the Telephone Excise Tax Refund (“TETR”), the First Time Home Buyer Credit (“FTHBC”), or the American Opportunity Tax Credit (“AOTC”). Fountain employed her knowledge of the IRS's fraud detection procedures to avoid suspicion, including that TETR claims below $1, 500 would not be flagged for review. Over time, Fountain and her significant other, [Ishmael], enlisted various people, including Appellant Calvin Johnson, Jr., to recruit claimants who would provide their personal information in exchange for a portion of a cash refund. During the same period, Johnson became involved in an additional conspiracy with some of his family members and other acquaintances that involved submitting fraudulent FTHBC and AOTC claims.
After a two-week trial, a jury convicted Fountain, Ishmael, and Johnson on multiple counts of conspiracy and filing false claims to the IRS in violation of 18 U.S.C. §§ 286 and 287. Fountain was also convicted on one count of Hobbs Act Extortion and two counts of making or presenting false tax returns, violations of 18 U.S.C. § 1951(a) and 26 U.S.C. § 7206, respectively. Additionally, Johnson was convicted of filing false claims to the IRS while on pretrial release in violation of 18 U.S.C. §§ 287 and 3147(1).
Fountain moved for a judgment of acquittal after trial on the Hobbs Act charge, which the District Court denied. Following evidentiary hearings on the dollar amounts involved in the Defendants' schemes, the District Court sentenced Fountain to 228 months' imprisonment and a three-year term of supervised release, and ordered her to pay restitution of $1, 740, 221.40. The District Court sentenced Ishmael to 144 months' imprisonment and a three-year term of supervised release, and ordered him to pay restitution of $1, 751, 809.40. Finally, the District Court sentenced Johnson to 216 months' imprisonment and a three-year term of supervised release, and ordered him to pay restitution of $1, 248, 392.40. Each of these sentences fell within the applicable Guidelines ranges after the District Judge imposed various enhancements.

United States v. Fountain, 792 F.3d 310, 314 (3d Cir. 2015). On appeal, Fountain claimed that the evidence was insufficient to sustain her Hobbs Act conviction. Id. Additionally, Fountain, Ishmael and Johnson challenged the Sophisticated Means enhancement to their sentencing guideline calculation, id. at 318-21, Fountain challenged her enhancement for Using a Minor, id. at 321, and Johnson challenged his Leadership Role enhancement and the District Court's loss calculation. Id. at 321-22. Finally, Fountain and Johnson challenged the substantive and procedural reasonableness of their sentences. Id.at 322-23. The Third Circuit denied all of their claims and affirmed the judgment of the District Court. Id. at 314-23.

         Fountain and Ishmael have filed identical § 2255 Motions, claiming: (1) trial counsel was ineffective for sending the trial judge a threatening email; (2) trial counsel was ineffective for failing to adequately cross-examine certain prosecution witnesses; (3) the District Court misapplied the Sentencing Guidelines because the defendant had no prior contact with the criminal justice system; and (4) the District Court's loss calculation was erroneous. Fountain's Mot. at 6-7, 9-10; Ishmael's Mot. at 6-7, 9-10. The Government counters that the ineffective assistance ...


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