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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ADRIAN LACEY, :

 Petitioner, : 

 CIVIL ACTION 15-00349-KD-M

v. :

 CRIMINAL ACTION 13-00112-KD-M

UNITED STATES OF AMERICA, :

 Respondent. :

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner’s Motion to Vacate, 

Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 

251). This action was referred to the undersigned Magistrate 

Judge for report and recommendation pursuant to 28 U.S.C. § 

636(b) and Rule 8(b) of the Rules Governing Section 2255 Cases. 

It is now ready for consideration. The record is adequate to 

dispose of this matter; no evidentiary hearing is required. It 

is recommended that Petitioner’s Motion to Vacate (Doc. 251) be 

denied, that this action be dismissed, and that judgment be 

entered in favor of Respondent, the United States of America, 

and against Petitioner Adrian Lacey. It is further recommended 

that any certificate of appealability filed by Petitioner be 

denied as he is not entitled to appeal in forma pauperis. 

On May 30, 2013, Lacey was indicted for the following: 

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conspiracy to defraud the United States in violation of 18 

U.S.C. § 371 (count one); committing wire fraud in violation of 

18 U.S.C. §§ 1343, 2 (counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 

22); and committing aggravated identity theft in violation of 18 

U.S.C. §§ 1028(a)(1), 2 (counts 3, 5, 7, 9, 11, 13, 15, 17, 19, 

21, 23) (Doc. 1). On November 20, 2013, a superseding 

indictment was entered, charging Petitioner with five more 

counts, each, of wire fraud (counts 24, 26, 28, 30, and 32) and 

aggravated identity theft (counts 25, 27, 29, 31, and 33) (Doc. 

135). On February 18, 2014, Lacey entered into an agreement in 

which he pled guilty to one count, each, of conspiracy to 

defraud, wire fraud, and aggravated identity theft (counts one 

through three) (Doc. 174). United States District Judge DuBose 

accepted the plea and found Petitioner guilty as charged (Doc. 

172). On August 14, 2014, Judge DuBose sentenced Petitioner to 

sixty months on count one, eighty-two months on count two, and 

twenty-four months on count three; the first two counts were to 

be served concurrently, while the third count was to be served 

consecutively to the first two counts and concurrent with a 

sentence already being served (see Doc. 232). In addition to 

the total sentence of one hundred, six months, Lacey was 

sentenced to three years of supervised release, as to each count 

to run concurrently, following his release from prison, and an 

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assessment of three hundred dollars (see Doc. 232). Judgment, 

which included the dismissal of counts four through thirtythree, was entered on November 26, 2014 (Doc. 232). Lacey did 

not file an appeal of either the conviction or sentence (see

Doc. 251, p. 3).

On July 6, 2015, Petitioner filed a Motion to Reduce his 

Sentence (Doc. 245). Judge DuBose denied the Motion eight days 

later (Doc. 248). 

On August 17, 2015, Lacey filed his Motion to Vacate, Set 

Aside, or Correct Sentence under 28 U.S.C. § 2255 in which he 

raises the following claims: (1) He was subjected to double 

jeopardy/counting; and (2) his attorney rendered ineffective 

assistance of counsel (see Doc. 246, 250-51). Respondent filed 

a response on October 21 (Doc. 257).

On October 26, Petitioner filed a Motion to Supplement, 

adding a particular ineffective assistance of counsel issue

(Doc. 258). The Government responded (Doc. 260).

On January 11, 2016, Lacey filed a Motion to Amend in which 

he presented a new argument concerning his second claim (Docs. 

261, 264). The Government filed a Response (Doc. 266) to which 

Petitioner has replied (Doc. 270).

Petitioner’s first claim in this action is that he was 

subjected to double jeopardy (or double counting) in the 

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sentence that he received (Doc. 251, pp. 6, 14-19; Docs. 264, 

270). More specifically, Lacey argues that he improperly 

received a six-point enhancement that, effectively, penalized 

him twice for the same behavior. 

In making his argument Petitioner relies on U.S.S.G.1 § 

2B1.62 that states as follows: “If the defendant was convicted 

of violating 18 U.S.C. § 1028A, the guideline sentence is the 

term of imprisonment required by statute.” U.S.S.G. § 2B1.6(a). 

Note two of that Guidelines section states as follows:

If a sentence under this guideline is 

imposed in conjunction with a sentence for 

an underlying offense, do not apply any 

specific offense characteristic for the 

transfer, possession, or use of a means of 

identification when determining the sentence 

for the underlying offense. A sentence 

under this guideline accounts for this 

factor for the underlying offense of 

conviction, including any such enhancement 

that would apply based on conduct for which 

the defendant is accountable under § 1B1.3

(Relevant Conduct). 

U.S.S.G. § 2B1.6 comment. (n.2). In explaining this language, 

the Eleventh Circuit Court of Appeals held that “when a 

defendant receives the two-year consecutive sentence on the 

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United States Sentencing Guidelines.

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“U.S.S.G. § 2B1.6 is the relevant guideline for convictions 

under 18 U.S.C. § 1028A.” United States v. Cruz, 713 F.3d 600, 605 

(11th Cir.), cert. denied, 133 S.Ct. 2788 (2013) and 134 S.Ct. 213 

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identity theft count, ‘h[is] sentence for any underlying offense 

is not eligible for a 2-level increase for transfer, possession, 

or use of false identification.’” United States v. Cruz, 713 

F.3d 600, 607 (11th Cir.), cert. denied, 133 S.Ct. 2788 (2013) 

and 134 S.Ct. 213 (2013) (quoting United States v. Jones, 551 

F.3d 19, 25 (1st Cir. 2008) (quoting U.S.S.G. § 2B1.6)). 

The Government has argued, however, that Lacey’s six-point 

upward adjustment was not because of his transfer, possession, 

or use of false identification, but because his crimes involved 

more than 250 victims (Doc. 257, p. 5). The Presentence 

Investigation Report (hereinafter PSR) clearly notes that 

Petitioner’s six-level enhancement was due to there being 250 or 

more victims (Doc. 216, ¶ 45). 

The Eleventh Circuit Court of Appeals has specifically held 

as follows:

Section 2B1.6 only prohibits enhancing the 

sentence imposed on an underlying offense—

here, mail fraud or false claims—based on a 

“specific offense characteristic for the 

transfer, possession, or use of a means of 

identification.” U.S.S.G. § 2B1.6, 

Application Note 2. It does not prohibit 

sentence enhancements for offense 

characteristics unrelated to “the transfer, 

possession, or use of a means of 

identification.” See United States v. Cruz,

713 F.3d 600, 607–08 (11th Cir. 2013) 

 (2013).

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(affirming application of Section 

2B1.1(b)(10)(A)(i) use-of-device-makingequipment enhancements, which did not 

concern use of a means of identification, to 

offenses governed by Section 2B1.1, since 

plain language of Application Note 2 did not 

bar application of all “relevant conduct” 

enhancements). For offenses governed by 

Section 2B1.1, like mail fraud and false 

claims, an enhancement is permitted under 

Section 2B1.1(b)(2) based on the number of 

victims, even where the indictment also 

charges aggravated identity theft.

United States v. Ford, 784 F.3d 1386, 1397 (11th Cir. 2015) 

(emphasis added) (citing United States v. Manatau, 647 F.3d 

1048, 1057 n.4 (10th Cir. 2011)). 

Nevertheless, Petitioner argues that a six-level sentence 

enhancement based on the number of victims is prohibited by the 

Sentencing Guidelines under U.S.S.G. § 2B1.6 because the 

definition of victim is, essentially, the same under U.S.S.G. § 

2B1.1(b)(2) and Application Note 4(E) as it is in 18 U.S.C. 1028

(Doc. 251, pp. 15-18; Doc. 261, pp. 2-6; Doc. 264, pp. 2-6; Doc. 

270, pp. 1-5). The Court rejects this argument under Ford’s 

holding that “[f]or offenses governed by Section 2B1.1, like 

mail fraud and false claims, an enhancement is permitted under 

Section 2B1.1(b)(2) based on the number of victims, even where 

the indictment also charges aggravated identity theft.” Ford, 

784 F.3d at 1397. Lacey’s argument otherwise is without merit.

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Plaintiff next claims that his attorney rendered 

ineffective assistance in that he (a) failed to object to the 

six-level enhancement of his sentence (Doc. 251, pp. 5, 14, 18); 

and (b) failed to file a direct appeal on his behalf (Doc. 258).

In Strickland v. Washington, 466 U.S. 668 (1984), the 

United States Supreme Court defined the showing a habeas 

petitioner must make to prevail on an ineffective assistance 

claim:

First, the defendant must show that 

counsel's performance was deficient. This 

requires showing that counsel made errors so 

serious that counsel was not functioning as 

the "counsel" guaranteed the defendant by 

the sixth amendment. Second, the defendant 

must show that the deficient performance 

prejudiced the defense. This requires 

showing that counsel's errors were so 

serious as to deprive the defendant of a 

fair trial, a trial whose result is 

reliable. Unless a defendant makes both 

showings, it cannot be said that the 

conviction . . . resulted from a breakdown 

in the adversary process that renders the 

result unreliable. 

Id. at 687.

Lacey first argues that his attorney was ineffective in 

failing to object to the six-level enhancement of his sentence. 

The Court has examined the particulars of this claim and found 

them without merit. Petitioner’s claim that his attorney was 

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deficient in not raising the claim gains no momentum under the 

ineffective assistance of counsel umbrella. This claim, too, 

lacks merit.

Lacey next claims that his attorney was ineffective in not 

filing an appeal on his behalf. The evidence shows that, on 

November 14, 2014, Petitioner signed and filed a Notice of No 

Appeal (Doc. 230). That Notice indicates that Lacey had been 

instructed by the Court and his attorney that he had a right to 

appeal, but that he declined to do so (Doc. 230). Petitioner’s 

attorney, Sid Harrell, also signed the form, indicating his 

belief that Lacey’s decision was knowing and voluntary. In 

light of this pleading, Petitioner’s claim that his attorney 

rendered ineffective assistance in not filing an appeal is 

without merit.

Lacey has raised two different claims in bringing this 

action. Both are without merit. Therefore, it is recommended 

that the Motion to Vacate (Doc. 251) be denied, that this action 

be dismissed, and that judgment be entered in favor of 

Respondent, the United States of America, and against Petitioner 

Adrian L. Lacey.

Furthermore, pursuant to Rule 11(a) of the Rules Governing 

§ 2255 Cases, the undersigned recommends that a certificate of 

appealability (hereinafter COA) be denied. 28 U.S.C. foll. § 

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2255, Rule 11(a) (“The district court must issue or deny a 

certificate of appealability when it enters a final order 

adverse to the applicant”). The habeas corpus statute makes 

clear that an applicant is entitled to appeal a district court’s 

denial of his habeas corpus petition only where a circuit 

justice or judge issues a COA. 28 U.S.C. § 2253(c)(1). A COA 

may issue only where “the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 

2253(c)(2). When the merits of a claim are reached, a COA 

should issue only when the petitioner demonstrates "that 

reasonable jurists would find the district court's assessment of 

the constitutional claims debatable or wrong." Slack v.

McDaniel, 529 U.S. 473, 484 (2000). As the Court has found that 

Lacey failed to assert sufficient facts to support a claim of 

constitutional error, “[t]he petitioner must demonstrate that 

reasonable jurists would find the district court's assessment of 

the constitutional claims debatable or wrong.” Slack, 529 U.S. 

at 484. It is suggested that Lacey can not make that showing.

CONCLUSION

It is recommended that Petitioner’s petition for writ of 

habeas corpus, filed pursuant to 28 U.S.C. § 2255, be denied and 

that this action be dismissed. It is further recommended that

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any certificate of appealability filed by Petitioner be denied 

as he is not entitled to appeal in forma pauperis. Finally, it 

is recommended that judgment be entered in favor Respondent, the 

United States of America, and against Petitioner, Adrian Lacey.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who 

objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See

28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4. 

In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the Magistrate 

Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this 28th day of March, 2016.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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