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United States of America v. Sno H. Rush

December 26, 2012


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


On October 12, 2010, Defendant Sno H. Rush ("Rush"), a former employee of the United States Marshals Service ("USMS"), pleaded guilty before this Court to one count of conversion in violation of 18 U.S.C. § 641, in connection with her personal use of $104,000 in USMS funds. On May 9, 2011, this Court sentenced her to twenty-one months of imprisonment to be followed by thirty-six months of supervised release and to $104,100 in criminal monetary penalties in the form of restitution and a special assessment. Presently before the Court is Rush's [28/34]*fn1

Motion for Modification of the Imposed Sentence/Motion to Vacate under 28 U.S.C. § 2255 ("Motion to Vacate"), by which Rush collaterally attacks her sentence based on various claims of ineffective assistance of counsel. Upon a searching review of the parties' submissions, the relevant authorities, and the record as a whole, the Court finds that Rush is not entitled to the requested relief. Accordingly, the Court shall DENY Rush's [28/34] Motion to Vacate.


From October 1998 to November 2008, Rush was employed by the USMS as an administrative officer in the Superior Court for the District of Columbia. In that capacity, Rush's responsibilities included handling payroll-related matters, authorizing payment to employees and outside entities, and drafting and signing United States Treasury checks for expenditures. Between April 2006 and February 2009, Rush converted to her personal use a total of $104,000 in USMS funds. She did so through three basic devices.

First, the USMS assigns each of its official vehicles a Fleet credit card ("Fleet card") to be used for fuel purchases. Fleet cards are not assigned to individual employees, and when a vehicle is sold, the Fleet card assigned to that vehicle must be returned for deactivation. In April 2006, Rush took possession of a Fleet card assigned to a USMS vehicle that was to be sold. Rather than destroying or deactivating the card, Rush took the card home and, between April 2006 and November 2008, used the card to cover personal expenses for gas and other automotive purchases. When the Fleet card expired in November 2008, Rush renewed the card and received a new card. She then used that card from December 2008 to February 2009. Overall, Rush incurred $15,000 in charges, which the USMS paid directly to the credit card company.

Second, using a family member's Social Security Number, Rush created a fictitious employee in the USMS payroll system and converted the salary for that fictitious employee to her own use. Between November 2007 and October 2008, Rush completed false time and attendance records for the fictitious employee and issued United States Treasury checks to the fictitious employee in the total amount of $31,000. The checks were deposited into a bank account that Rush controlled, and she used those funds for personal expenses.

Third, Rush was responsible for receiving certain invoices and authorizing payment on behalf of the USMS. From June 2007 to November 2008, Rush issued United States Treasury checks in the total amount of $58,000 and, disguising the credit card payments by creating false invoices to a company in a name similar to Rush's credit card company, used the checks to pay down the balance on her personal credit card account.

The Government commenced this criminal action against Rush on September 9, 2010. On October 12, 2010, Rush pleaded guilty to one count of conversion in violation of 18 U.S.C. § 641 for knowingly converting to her personal use money, valued at more than $1,000, of an agency of the United States. In the plea agreement, the parties stipulated, inter alia, that the applicable Sentencing Guideline was U.S.S.G. § 2B1.1, which applies to theft. See Plea Agreement, ECF No. [6], ¶ 9. The plea agreement additionally contains provisions setting forth the potential for certain downward departures from the advisory sentence calculated under the Sentencing Guidelines for acceptance of responsibility and/or substantial assistance to the Government, if warranted. See id. ¶¶ 9, 12-14.

On May 9, 2011, this Court sentenced Rush to serve twenty-one months of imprisonment to be followed by thirty-six months of supervised release governed by several special conditions, and to pay restitution in the amount of $104,000 and a special assessment in the amount of $100. Judgment in a Criminal Case (May 9, 2011), ECF No. [20]. At sentencing, the Court found by a preponderance of the evidence that, following her guilty plea, Rush engaged in a separate mail and wire fraud scheme against two car insurance companies and was therefore not entitled to a two-level reduction for acceptance of responsibility under the Sentencing Guidelines. See Tr. of Sent. Hr'g at 5-11. On June 8, 2011, Rush appealed this Court's Judgment to the United States Court of Appeals for the District of Columbia Circuit. See Notice of Appeal, ECF No. [23]. On August 4, 2011, the appeal was dismissed upon Rush's own motion. See Order (Aug. 4, 2011), United States v. Rush, No. 11-3053 (D.C. Cir. 2011), ECF No. [27]. At the time Rush filed the instant petition, she was in the custody of the Federal Bureau of Prisons ("BOP"), at the Federal Prison Camp in Alderson, West Virginia. Rush presently remains in BOP custody, in a community-based correctional program in Washington, D.C. See FEDERAL BUREAU OF PRISONS

INMATE LOCATOR, (last visited December 26, 2012).*fn3

On December 8, 2011, Rush, proceeding without legal representation, filed a three-page letter seeking "a modification of the imposed sentence to a reduction or split sentence." See Letter to the Court ("Motion for Modification"), ECF No. [28]. On January 20, 2012, the Government filed its response to Rush's Motion for Modification, noting that Rush "does not specify a legal basis to justify a reduction in her sentence." See Gov't's Resp. to Def.'s Letter to the Court, ECF No. [30]. By Order dated January 23, 2012, the Court advised Rush that among the legal vehicles available to a federal defendant seeking a modification of her sentence is a petition for habeas relief under Section 2255 of Title 28 of the United States Code. See Order (Jan. 23, 2012), ECF No. [31]. However, emphasizing that construing Rush's Motion for Modification as a petition under Section 2255 would trigger significant procedural consequences, the Court ordered Rush to "file a document with the Court specifying any and all legal bases for her request for a 'modification of the imposed sentence to a reduction or split sentence,' including, but not limited to, indicating whether she intends to bring her request under Section 2255." Id.

Rush elected to proceed under Section 2255. On February 13, 2012, still proceeding without legal representation, Rush filed a motion to vacate pursuant to Section 2255. See Mot. under 28 U.S.C. ยง 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Section 2225 Petition"), ECF No. [34]. In view of the Court's prior instructions to specify "any and all legal bases" for the requested relief, the Court understood Rush's Section 2255 Petition to be a more fulsome statement of her three-page informal Motion for Modification, and, on February 22, 2012, issued an Order consolidating the two motions into a single Motion to Vacate under Section 2255 ("Motion to Vacate"). See Order (Feb. 22, 2012), ECF No. [35]. On April 13, 2012, the Government timely filed its opposition to Rush's Motion to Vacate. See Gov't's Opp'n to Def.'s Mot. to Vacate ("Gov't's Opp'n"), ...

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