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United States v. Makangula

United States District Court, S.D. Texas, Houston Division

May 31, 2017

United States of America
v.
Simon Shadrack Makangula Civil Action No. H-16-1045

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller United States District Judge

         Defendant Simon Shadrack Makangula, represented by counsel, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Docket Entry No. 30). The Court ordered the Government to file a response or, if appropriate, a dispositive motion. The Court further ordered Defendant to file a response to any dispositive motion within thirty days after date of filing. (Docket Entry No. 32, p. 2.) This latter order was repeated by the Court in a subsequent order (Docket Entry No. 39, p. 2).

         The Government filed a motion for summary judgment on August 10, 2016 (Docket Entry No. 43), and served a copy on counsel for Defendant that same date. Defendant filed a response to the motion on September 22, 2016 (Docket Entry No. 44). The response to the motion was untimely, and Defendant did not seek authorization to file the late response. Defendant was warned that his failure to respond timely to a dispositive motion would “result in dismissal of the section 2255 motion for failure to prosecute or the Court's disposition of the Government's motion without a response from Defendant.” (Docket Entry No. 32, p. 2.) Because Defendant did not timely respond to the Government's motion or seek leave to file his untimely response, the response is not properly before the Court and will not be considered.

         Having reviewed Defendant's section 2255 motion, the Government's motion for summary judgment, the record, and the applicable law, the Court GRANTS the motion for summary judgment and DENIES the section 2255 motion for relief, as follows.

         Background and Claims

         Defendant pleaded guilty to one count of aiding and assisting the filing of a false or fraudulent tax return in violation of 26 U.S.C. § 7206(2). The plea was entered pursuant to a written plea agreement. The plea agreement described the factual basis for Defendant's criminal offense as follows:

15. Defendant is pleading guilty because he is guilty of the charges contained in the Criminal Information. If this case were to proceed to trial, the United States could prove each element of the offense beyond a reasonable doubt. The following facts, among others, would be offered to establish defendant's guilt:
At all times relevant to this case, defendant agrees he was in the business of preparing U.S. Individual Income Tax Returns for clients, operating under the name MSHALE Investment in Houston, Texas. Defendant willfully placed numerous false items on his clients' income tax returns in order to lower his clients' income tax liabilities.
With regard to the specific 2009 U.S. Individual Income Tax Return of LM that defendant prepared and which underlies the Criminal Information, defendant willfully claimed on the return the following false items that defendant knew the taxpayer was not entitled to claim: two false dependents; a false Refundable Education Credit in the amount of $2, 000; a false Earned Income Credit of $4, 732.00; and a false Schedule C loss of $14, 324.00 from a sole proprietorship that defendant knew the taxpayer did not have. These false items that the defendant placed on the return resulted in a falsely claimed income tax refund of $9, 010.00, resulting in a tax loss to the United States of approximately $9, 731.00.

(Docket Entry No. 12, pp. 11-12.)

         At the sentencing hearing held January 23, 2015, the Court sentenced Defendant to 18 months' imprisonment, to be followed by one year of supervised release, and restitution in the amount of $51, 645.00. (Docket Entry No. 25, pp. 10-11.)

         In the instant section 2255 proceeding, Defendant claims that counsel was ineffective in failing to advise him properly as to the immigration consequences of his guilty plea, as required by Padilla v. Kentucky, 559 U.S. 356, 360 (2010). The Government argues that the claim is without merit.

         Legal Standards

          Section 2255

         Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to section 2255: (1) the imposition of a sentence in violation of the Constitution or the laws of the United States; (2) a lack of jurisdiction of the district court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Section 2255 is an extraordinary measure, and cannot be used for errors that are not constitutional or jurisdictional if those errors could have been raised on direct appeal. United States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error is not of constitutional or jurisdictional magnitude, the movant must show the error could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994).

         Ineffective ...


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