IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILMA KPOHANU, CASE NO. 2:11-cv-903

CRIM. NO. 2:05-cr-250

Petitioner, JUDGE GREGORY L. FROST

MAGISTRATE JUDGE KEMP

v. 

UNITED STATES OF AMERICA, 

Respondent. 

OPINION AND ORDER

On April 23, 2012, the Matistrate Judge issued a Report and Recommendation pursuant to

Rule 4 of the Rules Governing Section 2255 Proceedings, recommending that the instant motion to

vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2255 be dismissed. Petitioner has filed

objections to the Magistrate Judge’s Report and Recommendation. For the reasons that follow,

petitioner’s objections are OVERRULED. The Report and Recommendation is ADOPTED and

AFFIRMED. This action is hereby DISMISSED. Petitioner’s request for an evidentiary hearing

is DENIED. 

Petitioner objects to the Magistrate Judge’s recommendation of dismissal. She first argues

that her ineffective assistance of counsel claims need not have been brought on direct appeal and

therefore were not procedurally defaulted. This objection does not raise a challenge to the Report

and Recommendation, because the Magistrate Judge explained that the claims for ineffective

assistance of counsel were not procedurally defaulted. Instead the Magistrate Judge determined that

the third and fourth claims, which did not raise the issue of ineffective assistance of counsel, were

procedurally defaulted. Petitioner states that her third and fourth claims were “the by product of”

counsel’s ineffective performance, apparently arguing that they should be deemed claims of

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ineffective assistance of counsel and thereby avoid being procedurally defaulted. However, this

argument would fail because, as the Report and Recommendation noted, procedural default aside, 

the third and fourth were meritless for the same reasons as the first two claims. Petitioner also

asserts that she has made a prima facie case that her ninety-seven month sentence was a direct result

of constitutional deprivations. However, she provides no facts or argument to support that assertion,

nor does she challenge the Report and Recommendation’s summary of the law regarding the Sixth

Amendment’s impact on the Federal Sentencing Guidelines. 

In her motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2255, petitioner

argued that her counsel was ineffective for failing to point out that her sentencing range was

improperly enhanced under the Sentencing Guidelines because the facts supporting those

enhancements were not submitted to a jury or admitted by petitioner. However, as discussed in the

Magistrate Judge’s Report and Recommendation, the law does not require facts supporting various

sentencing ranges under the Federal Sentencing Guidelines to be submitted to a jury or admitted by

petitioner. Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005),

when “a district court understands that the [Federal Sentencing] Guidelines are only advisory,

judicial fact-finding done by the preponderance of the evidence is permissible.” U.S. v. Sexton, 512

F.3d 326, 330 (6th Cir. 2008). Here the jury convicted petitioner of one count of health-care fraud

in violation of 18 U.S.C. § 1347 and two counts of making false health-care statements in violation

of 18 U.S.C. § 1035. There is no challenge to those convictions. Accordingly, because the

Guidelines are advisory, the crucial question is whether the penalties imposed exceeded the

maximum statutory penalties set by the statutes of conviction. U.S. v. Sexton, 512 F.3d at 330; see

also U.S. v. Cheney, 299 Fed. Appx. 479, 480-81, 2008 WL 4691798,*1-2 (6th Cir. 2008). They

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did not. Accordingly, petitioner’s sentence was not imposed contrary to the Sixth Amendment right

to a jury trial, and counsel was not ineffective for failing to argue that it was. There is no basis for

holding an evidentiary hearing. 

Pursuant to 28 U.S.C. § 636(b)(1) this Court has conducted a de novo review of the

Report and Recommendation. This Court has carefully considered the entire record. For the

foregoing reasons and for reasons detailed in the Magistrate Judge's Report and

Recommendation, petitioner's objections are OVERRULED. The Report and Recommendation

is ADOPTED and AFFIRMED. This action is hereby DISMISSED. Petitioner’s request for

an evidentiary hearing is DENIED. 

IT IS SO ORDERED.

/s/ 

GREGORY L. FROST

United States District Judge

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