Opinion

Martinez v. United States

Court
District Court, S.D. California
Filed
Apr 8, 2025
Cited by
0 cases
Authority
More cited than 34.8%

citing, inter alia, Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc)

How later courts described this case

  • citing, inter alia, Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc)
  • “[Motions under § 2255 are limited 26 to:] (1) constitutional issues, (2) challenges to the district court’s jurisdiction to impose the 27 28 1 sentence, (3) challenges to the length of a sentence imposed in excess of the statutory 2 maximum, and (4

Written by the judges who cited it.

The opinion

1

2

3

4

5 UNITED STATES DISTRICT COURT

6 SOUTHERN DISTRICT OF CALIFORNIA

7

8 UNITED STATES OF AMERICA, Case No.: 11cr1445 / 24cv1020 - WQH

9 Plaintiff,

ORDER

10 v.

11 STEVEN MARTINEZ,

12

Defendant.

13

HAYES, Judge:

14

The matter before the Court is the Motion to Vacate, Set Aside or Correct Sentence

15

by a Person in Federal Custody under 28 U.S.C. § 2255, filed by Defendant Steven

16

Martinez. (“§ 2255 Motion,” ECF No. 170.)

17

I. Background

18

On April 14, 2011, Martinez was charged by Indictment with mail fraud in violation

19

of 18 U.S.C. § 1341, procuring a false tax return in violation of 26 U.S.C. § 7206(2),

20

fraudulent use of a Social Security number of another person in violation of 42 U.S.C. §

21

408(a)(8), aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), making a false

22

tax return in violation of 26 U.S.C. § 7206(1), money laundering in violation of 18 U.S.C.

23

§ 1957, and aiding and abetting in violation of 18 U.S.C. § 2. (ECF No. 1.)

24

On March 9, 2012, Martinez was charged in a First Superseding Indictment which

25

contained the same charges as brought in the original Indictment and added charges of

26

witness tampering in violation of 18 U.S.C. § 1512(a)(1)(A), use of a facility of interstate

27

28

1 commerce in commission of murder-for-hire in violation of 18 U.S.C. § 1958, and

2 solicitation of a crime of violence in violation of 18 U.S.C. § 373. (ECF No. 38.)

3 On August 10, 2012, Martinez entered a guilty plea pursuant to the terms of a written

4 Plea Agreement. Martinez pled guilty to Count 4 of the First Superseding Indictment, mail

5 fraud in violation of 18 U.S.C. § 1341; Count 7, procuring a false tax return in violation of

6 26 U.S.C. § 7206(2); Count 21, fraudulent use of a Social Security number of another

7 person in violation of 42 U.S.C. § 408(a)(8); Count 33, aggravated identity theft in

8 violation of 18 U.S.C. § 1028A(a)(1); Count 47, making a false tax return in violation of

9 26 U.S.C. § 7206(1); Count 49, money laundering in violation of 18 U.S.C. § 1957; Counts

10 50–53, witness tampering in violation of 18 U.S.C. § 1512(a)(1)(A); Count 54, use of a

11 facility of interstate commerce in commission of murder-for-hire in violation of 18 U.S.C.

12 § 1958; and Count 55, solicitation of a crime of violence in violation of 18 U.S.C. § 373.

13 (ECF No. 67.) During the plea colloquy, the Court reviewed the Plea Agreement with

14 Martinez, including the rights he was giving up, the maximum penalties, the factual basis,

15 and his waiver of appeal and collateral attack. (See ECF No. 168.) Martinez confirmed that

16 he understood the Plea Agreement, including the provision waiving appeal and collateral

17 attack. See id. at 45. After reviewing the factual basis, and confirming Martinez’s plea of

18 guilty, the Court accepted the guilty plea. See id. at 47.

19 The factual basis of Martinez’s Plea Agreement begins with the following

20 introductory statements applicable to all crimes:

21 1. Defendant STEVEN MARTINEZ …, a resident of Ramona, California,

was a tax return preparer beginning no later than January 1998, and

22

continuing up to and including April 15, 2011. Defendant MARTINEZ

23 owned and operated a tax return preparation business in San Diego,

California, under various business names, including but not limited to

24

Goertz & Martinez LLP, and Steven Martinez, CPA, AAC.

25 2. Beginning in at least January 2004, and continuing up to and including at

least October 2008, within the Southern District of California, and

26

elsewhere, defendant MARTINEZ engaged in a scheme to defraud his

27 taxpayer-clients by filing false tax returns with the IRS and California

Franchise Tax Board (FTB), and rather than remitting his clients full tax

28

1 payments, defendant MARTINEZ stole a majority of the money and used

it for his own personal benefit.

2

3. In order to conceal his scheme to defraud, defendant MARTINEZ, opened

3 or caused others to open bank accounts in the names of various nominee

entities, including but not limited to: Goertz & Martinez CTA, Inc., Goert-

4

Martinez CTA, Inc., Via Brazil, Inc., 2011 Holdings, Inc., EFTPS-2007,

5 Inc., and EFTPS-2008, Inc. (hereinafter collectively referred to as the

“nominee bank accounts”). These nominee entities and corresponding

6

bank accounts had no relation to the IRS, FTB, or the Electronic Federal

7 Tax Payment System (EFTPS).

4. Defendant MARTINEZ prepared and provided to his clients both federal

8

and state income tax returns accurately indicating what the taxpayers owed

9 to the IRS and FTB.

5. Defendant MARTINEZ, with the intent to defraud, requested his clients to

10

give him checks payable to one or more of the nominee accounts in the

11 amounts indicated on their returns as the income tax and estimated tax

payments due to the IRS and FTB.

12

6. Defendant MARTINEZ falsely represented to his clients that he would

13 forward these sums to the IRS and FTB as payment of their tax liabilities.

7. Defendant MARTINEZ, with the intent to defraud, diverted millions of

14

dollars of these funds to his own personal use, rather than forwarding all

15 of the funds to the relevant taxing authority as promised to the taxpayer.

8. Defendant MARTINEZ, with the intent to defraud, prepared a false set of

16

tax returns for his clients showing a substantially lower amount of tax due

17 and owing. Without his clients’ knowledge, consent, or authorization,

defendant MARTINEZ filed the false tax returns with IRS and FTB in lieu

18

of the original returns presented and provided to his clients.

19 9. Defendant MARTINEZ misused his clients’ means of identification,

including their names and Social Security numbers (SSNs), to prepare and

20

file false tax returns without his clients’ knowledge, consent, or

21 authorization.

10. Defendant MARTINEZ fraudulently obtained more than $11 million from

22

his clients and converted these proceeds of the fraud to his own personal

23 use and benefit. For example, Defendant MARTINEZ used the proceeds

to (a) make home improvements (including a playground and a pool); (b)

24

purchase real estate, including a beach home in Mexico; (c) pay for use of

25 a private airplane; (d) make payments associated with a boat, motorhome,

and limousine; (e) make investments of more than $2 million in other

26

entities; (f) make payments of more than $2 million for his personal credit

27 cards and loans; and (g) pay fees associated with one of his civil attorneys

(K.C.N.).

28

1 11. Defendant MARTINEZ, with the intent to defraud, knowingly and

intentionally filed his own false personal income tax returns with the IRS

2

and FTB for at least tax years 2004, 2005, 2006, and 2007.

3 a. At the time the tax returns were originally filed with the IRS and

FTB, Defendant MARTINEZ failed to report more than $11 million

4

in additional income that he received by fraudulently converting a

5 majority of his client’s tax payments for his own personal use.

12. Defendant MARTINEZ, with the intent to defraud, stole tax payments

6

from other taxpayer-clients in 2009, 2010, and 2011 in order to repay some

7 of the taxpayer-clients that discovered defendant MARTINEZ had stolen

their tax payments rather than remit them to the IRS and FTB, as defendant

8

Martinez promised.

9

(ECF No. 67 at 6–9.)

10

The factual basis of the Plea Agreement related to mail fraud additionally states:

11

13. On or about October 11, 2007, within the Southern District of California

12

and elsewhere, defendant MARTINEZ, for the purpose of executing the

13 aforesaid material scheme and attempting to do so, knowingly caused to

be placed in any post office and authorized depository for mail matter any

14

matter and thing whatever to be sent and delivered by the Postal Service,

15 to wit, a false income tax return on IRS Form 1040 for tax year 2006, which

he submitted to the IRS on behalf of his taxpayer-clients M.H. and S.H.

16

14. On or about the dates set forth below in paragraphs 14(a) to (e), within the

17 Southern District of California and elsewhere, defendant MARTINEZ, for

the purpose of executing the aforesaid material scheme and attempting to

18

do so, knowingly caused to be placed in any post office and authorized

19 depository for mail matter any matter and thing whatever to be sent and

delivered by the Postal Service, as described below:

20

a. On or about June 24, 2006, the item placed in the U.S. mail was IRS

21 Form 1120S for tax year 2005 for taxpayer C.I.I.;

b. On or about July 20, 2006, the item placed in the U.S. mail was IRS

22

Form 1040 for tax year 2004 for taxpayers J.V.S. and M.A.S.;

23 c. On or about October 5, 2007, the item placed in the U.S. mail was IRS

Form 1120S for tax year 2006 for taxpayer C.I.I.;

24

d. On or about October 15, 2007, the item placed in the U.S. mail was IRS

25 Form 1040 for tax year 2006 for taxpayers A.L.C. and A.M.C.; and

e. On or about May 17, 2008, the item placed in the U.S. Mail was IRS

26

Form 1120S for tax year 2007 for taxpayer C.I.I.

27

Id. at 9–10.

28

1 The factual basis of the Plea Agreement related to fraudulent use of a Social Security

2 ||number of another person additionally states:

3 17.On or about April 15, 2006, within the Southern District of California and

A elsewhere, defendant MARTINEZ did knowingly disclose and use the

SSN, to wit: XXX-XX-8044, of another person, namely, the person with

5 initials J.D.S., to file a false and fraudulent federal income tax return, to

6 wit: a 2005 Form 1040, filed with the IRS under the person with initials

J.D.S., in violation of the laws of the United States, to wit: Title 18, United

7 States Code Section 1341, and Title 26, United States Code, Section

7206(2).

18.In addition, on or about the dates set forth below (Column “A”) , within

9 the Southern District of California and elsewhere, defendant MARTINEZ

10 did knowingly disclose and use the SSN (Column “B”) of another person

to file a false and fraudulent federal income tax return (Column “C’’) filed

11 with the IRS under the names set forth below (Column “D”), in violation

12 of the laws of the United States, to wit: Title 18, United States Code

Section 1341, and Title 26, United States Code, Section 7206(2):

13

14

eee

15

16 Date Tax Social Security Tax Taxpayer

7 Return Filed Number Return

"

2004 1040

yy || LBpeit 18, 2007

1 at 12-13.

2 The factual basis of the Plea Agreement related to aggravated identity theft

3 || additionally states:

4 19.On or about April 15, 2006, within the Southern District of California and

5 elsewhere, defendant MARTINEZ, during and in relation to the felony

offense of mail fraud, in violation of Tile 18, United States Code, Section

6 1341, and during and in relation to the felony offense of using the SSN to

7 wit: XXX-XX-8044, of another person, namely, the person with initials

J.D.S., to file a false and fraudulent federal income tax return, to wit: a

8 2005 Form 1040, filed with the IRS under the person with initials J.D.S.,

9 in violation of Title 42, United States Code, Section 408(a)(8), knowingly

possessed and used, without lawful authority, a means of identification of

10 another person, to wit: the name of the person with initials J.D.S. and the

1 SSN of the person with initials J.D.S., namely XXX-XX-8044, knowing

that said means of identification belonged to the person with initials J.D.S.

12 20.In addition, on or about the dates set forth below (Column “A”’), within the

B Southern District of California, defendant MARTINEZ, during and in

relation to the felony offense of mail fraud, in violation of Title 18, United

14 States Code, Section 1341, and during and in relation to the felony offense

15 of using the SSN (Column “B”) of another person to file a false and

fraudulent federal income tax return (Column “C”’) filed with the IRS

16 under the names set forth below (Column “D”), in violation of Title 42,

7 United States Code, Section 408(a)(8), knowingly possessed and used,

without lawful authority, a means of identification of another person, to

18 wit: the names (Column “D”) and the SSNs (Column “B”), knowing that

19 said means of identification belonged to another person:

vat se er

21 |||

Date Tax Social Security Tax Taxpayer

22 Return Filed Number Return

guy 24, 2006 | xxx-u-o182 | 2008 1040

2

27 April 15, 2007 XXX-XX-9182 2006 1040 J.V.S.

28

□□

| | =e ee

2

4 Return Filed Number Return

5

11 at 13-15.

12 On April 12, 2013, the Court sentenced Martinez to a total term of imprisonment of

13 ||286 months on all counts of conviction. (See ECF No. 169 at 47-49.) This sentence

14 |/included the low-end of the advisory Guideline range of a total of 262 months in custody

15 ||concurrent for all counts except aggravated identity theft, plus a mandatory 24-month

16 consecutive prison term for aggravated identity theft. The sentence also included a total of

17 || five years of supervised release following the custodial sentence, restitution in the amount

18 || of $14,094,833.09, and a special assessment in the amount of $1,200.00. At the conclusion

19 ||of the sentencing hearing, Martinez’s counsel affirmed that Martinez waived his right to

20 || appeal and collaterally attack his convictions and sentence, with an exception not relevant

21 || to the pending § 2255 Motion. /d. at 57. On April 16, 2013, the Court entered the Judgment.

22 ||(ECF No. 116.) On July 29, 2013, the Court entered an Amended Judgment. (ECF No.

23 || 140.)

24 On June 10, 2024, Martinez filed the pending § 2255 Motion. (ECF No. 170.)

25 || Martinez contends in claim one of the § 2255 Motion:

26 Defendant did not commit Aggravated Identity Theft, Title 18, United States

47 Code, Section 1028A (Count 33). He did not commit aggravated identity thett

because, based on the recent United States Supreme Court decision in [ United

28 States v.| Dubin[, 599 U.S. 110 (2023)], his use of his clients’ means of

1 identification in relation to two separate §1028A(a)(l) predicate offenses were

not at the crux of the crime, what made either offense criminal. Defendant’s

2

conviction, term of imprisonment and term of Supervised Release for this

3 crime are in violation of the Constitution and should be vacated, set aside or

corrected pursuant to Title 28, United States Code, Section 2255.

4

5 (ECF No. 170 at 2.) Martinez contends in claim two of the § 2255 Motion:

6 Defendant did not violate Title 42, United States Code, Section 408(a)(8),

Fraudulent Use of a Social Security Number of Another Person (Count 21).

7

He did not violate §408(a)(8) because, based on the decision in Dubin, which

8 Defendant argues is also applicable to §408(a)(8), his disclosure, use, or

compelled disclosure of his clients’ Social Security number was not at the

9

crux of its predicate offense’s crime, what made its predicate offense criminal.

10 Defendant’s conviction, term of imprisonment and term of Supervised

Release for this crime are in violation of the Constitution and should be

11

vacated, set aside or corrected pursuant to Title 28, United States Code,

12 Section 2255.

13

Id.

14

On July 28, 2024, the Government filed an opposition to the § 2255 Motion. (ECF

15

No. 174.) The Government contends:

16

First, Martinez validly waived his right to collaterally attack his convictions

17 and sentences on Counts 21 and 33. Second, even if the appellate waiver did

not apply, Martinez’s collateral attack is barred by the statute of limitations

18

because he did not file his motion within one-year of the judgment being

19 entered and the Supreme Court did not explicitly make his claim retroactive

in Dubin allowing him to file his motion in 2024. Finally, even if his collateral

20

attack was not waived and barred, Martinez’s claims fail because the

21 application of Dubin to the facts and circumstances of his case does not

invalidate the convictions and sentences imposed on Counts 21 and 33.

22

23 Id. at 4.

24 On October 15, 2024, Martinez filed a reply in support of the § 2255 Motion. (ECF

25 No. 183.) Martinez contends that the § 2255 Motion was timely filed within one year of

26 Dubin because “Dubin is a new substantive rule retroactive … to cases brought on

27 collateral review.” Id. at 8. Martinez contends that “[t]he [Plea] Agreement’s waiver of

28 collateral attack is inoperative to Defendant’s two claims … because his conviction and

1 corresponding sentence underlying the two claims are illegal and in violation of the

2 Constitution based on the Supreme Court decision in Dubin.” Id. at 11. Martinez contends

3 that “[t]he Defendant has demonstrated both cause to excuse his procedural default and

4 actual prejudice” because “[h]is two claims are uniquely nuanced and syncopated so much

5 so that their legal basis remained so novel it was not reasonably available to counsel back

6 in 2012 nor until Dubin.” Id.

7 II. Discussion

8 A. Standard of Review

9 A federal prisoner making a collateral attack against the validity of his conviction or

10 sentence must do so by way of a motion to vacate, set aside, or correct the sentence pursuant

11 to 28 U.S.C. § 2255. Section 2255 states:

12 A prisoner in custody under sentence of a court established by Act of Congress

claiming the right to be released upon the ground that the sentence was

13

imposed in violation of the Constitution or law of the United States, or that

14 the court was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by law, or is otherwise

15

subject to collateral attack, may move the court which imposed the sentence

16 to vacate, set aside or correct the sentence.

17

28 U.S.C. § 2255(a). “Congress enacted § 2255 to simplify the habeas process for federal

18

prisoners. The section provides ‘a remedy [in the sentencing court] exactly commensurate

19

with that which had previously been available by habeas corpus in the court of the district

20

where the prisoner was confined.’” United States v. Berry, 624 F.3d 1031, 1038 (9th Cir.

21

2010) (quoting Hill v. United States, 368 U.S. 424, 427 (1962)). “Because a § 2255 motion

22

is ‘commensurate’ with habeas relief, it may only be used to collaterally attack a conviction

23

and sentence ‘upon the ground that the sentence was imposed in violation of the

24

Constitution or laws of the United States.’” Id. (quoting 28 U.S.C. § 2255; citing United

25

States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981) (“[Motions under § 2255 are limited

26

to:] (1) constitutional issues, (2) challenges to the district court’s jurisdiction to impose the

27

28

1 sentence, (3) challenges to the length of a sentence imposed in excess of the statutory

2 maximum, and (4) claims that the sentence is otherwise subject to collateral attack.”)).

3 B. Waiver

4 As an initial matter, the Government contends that Martinez waived his right to

5 collaterally attack his convictions and sentences on the two counts he now challenges in

6 his § 2255 Motion. Martinez’s Plea Agreement states that, “[i]n exchange for the

7 Government’s concessions in this plea agreement, defendant waives, to the full extent of

8 the law, any right to appeal or to collaterally attack the conviction and any lawful restitution

9 order, except a post-conviction collateral attack based on a claim of ineffective assistance

10 of counsel.” (ECF No. 67 at 32.) The Court confirmed Martinez’s knowing and voluntary

11 waiver of his right to collaterally attack his conviction during the change of plea hearing.

12 (ECF No. 168 at 45.) The pending § 2255 Motion does not contain a claim for ineffective

13 assistance of counsel; accordingly, by the terms of his Plea Agreement, Martinez has

14 waived his collateral attack in his § 2255 Motion. Typically, “a change in the law does not

15 make a plea involuntary and unknowing. That a defendant does not foresee the specific

16 issue that he now seeks to appeal does not place that issue outside the scope of his waiver.”

17 United States v. Goodall, 21 F.4th 555, 562 (9th Cir. 2021) (quotations omitted). “A plea

18 agreement is no different in this respect from any other contract in which someone may

19 have buyer’s remorse after an unforeseen future event—the contract remains valid because

20 the parties knowingly and voluntarily agreed to the terms. There is no do-over just because

21 a defendant later regrets agreeing to a plea deal.” Id. “The analogy between plea agreements

22 and private contracts is imperfect, however, because the Constitution imposes a floor below

23 which a defendant’s plea, conviction, and sentencing may not fall. For example, … [a]

24 waiver of appellate rights will … not apply if a defendant’s sentence is illegal, which

25 includes a sentence that violates the Constitution.” United States v. Torres, 828 F.3d 1113,

26 1124–25 (9th Cir. 2016) (quotations and citations omitted).

27 Martinez contends that his waiver in the Plea Agreement does not prevent the

28 consideration of the merits of his § 2255 Motion because his “conviction and sentence are

1 illegal, violate the Constitution,” and he is actually innocent of aggravated identity theft

2 and fraudulent use of a Social Security number of another person based upon the holding

3 of Dubin. (ECF No. 183 at 11.) The Ninth Circuit “recognizes a claim of actual innocence

4 that is cognizable under § 2255.” United States v. Berry, 624 F.3d 1031, 1038 n.5 (9th Cir.

5 2010) (citing, inter alia, Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc)).

6 “To establish actual innocence, petitioner must demonstrate that, in light of all the

7 evidence, it is more likely than not that no reasonable juror would have convicted him.”

8 Bousley v. United States, 523 U.S. 614, 623 (1998). “One way a petitioner can demonstrate

9 actual innocence is to show in light of subsequent case law that he cannot, as a legal matter,

10 have committed the alleged crime.” Vosgien v. Persson, 742 F.3d 1131, 1134 (9th Cir.

11 2014). In order to assess whether Martinez has demonstrated actual innocence in light of

12 Dubin, the Court considers the merits of Martinez’s claims in his § 2255 Motion in Section

13 II.D. below. For the reasons discussed in Section II.D., the Court finds that Martinez has

14 not demonstrated that he is actually innocent of Counts 21 or 33 of the First Superseding

15 Indictment. Accordingly, Martinez has not overcome his waiver of his right to collaterally

16 attack his conviction and sentence.

17 C. Timeliness

18 The Government alternatively contends that Martinez’s § 2255 Motion is barred by

19 § 2255’s limitations period because he did not file his motion within one-year of the

20 judgment being entered and the Supreme Court did not explicitly make his claim

21 retroactive in Dubin. Martinez responds that his § 2255 Motion is timely because it was

22 filed within one-year of the decision in Dubin, and “Dubin is a new substantive rule

23 retroactive … to cases brought on collateral review.” (ECF No. 183 at 9.)

24 Pursuant to § 2255(f)(3), Martinez’s § 2255 Motion could be considered timely if it

25 was filed within one year of the “date on which the right asserted was initially recognized

26 by the Supreme Court, if that right has been newly recognized by the Supreme Court and

27 made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). In

28 Dubin, the Supreme Court did not state that its holding was retroactive to cases on collateral

1 review. The Ninth Circuit has not addressed the issue and district courts are split as to

2 whether Dubin is retroactive in this context. Compare United States v. Buck, No.

3 2:19CR136-KJD-BNW, 2024 WL 1554202, at *2 (D. Nev. Apr. 9, 2024) (“[A]ssuming,

4 without deciding, that Dubin did recognize a new right, Buck’s argument would still fail

5 because nothing in that opinion was made retroactive to cases on collateral review.”); with

6 Paige v. United States, No. 2:22-CR-00091-NT, 2024 WL 2245763, at *4 (D. Me. May

7 17, 2024), report and recommendation adopted, No. 2:22-CR-00091-NT, 2024 WL

8 3014669 (D. Me. June 14, 2024) (“Because Dubin narrowed the range of conduct

9 punishable under the statute, it can apply retroactively to certain cases on collateral review,

10 which the Government did not challenge.”); United States v. Milligan, No. CR 19-424

11 (TJK), 2024 WL 2110136, at *3 n.4 (D.D.C. May 10, 2024) (“The Government does not

12 contest that Dubin applies retroactively.”). This Court need not decide the issue because,

13 for the reasons discussed below, the Court finds that Martinez’s § 2255 Motion fails on the

14 merits.

15 D. Merits

16 First, the Court considers the merits of claim one of the § 2255 Motion, in which

17 Martinez contends that he “did not commit aggravated identity theft because, based on the

18 recent United States Supreme Court decision in Dubin …, his use of his clients’ means of

19 identification in relation to two separate §1028A(a)(l) predicate offenses were not at the

20 crux of the crime.” (ECF No. 170 at 2.)

21 The aggravated identity theft statute provides:

22 Whoever, during and in relation to any felony violation enumerated in

subsection (c), knowingly transfers, possesses, or uses, without lawful

23

authority, a means of identification of another person shall, in addition to the

24 punishment provided for such felony, be sentenced to a term of imprisonment

of 2 years.

25

26 18 U.S.C. § 1028A(a)(1). In Dubin, the Supreme Court resolved a circuit split over the

27 breadth of the statute’s requirement that the means of identification be “use[d]” “in relation

28 to” a predicate offense. 599 U.S. at 116. Dubin held that the requisite “relation to” the

1 predicate offense is present when “the defendant’s misuse of another person’s means of

2 identification is at the crux of what makes the underlying offense criminal.” Id. at 114. In

3 adopting this standard, Dubin “cited with approval our court’s precedent as well as other

4 circuit decisions that provided ‘more restrained readings of the aggravated identity theft

5 statute.’” United States v. Ovsepian, 113 F.4th 1193, 1205 (9th Cir. 2024) (quoting Dubin,

6 599 U.S. at 116, which in turn cited United States v. Hong, 938 F.3d 1040, 1051 (9th Cir.

7 2019)).

8 Here, the first underlying predicate offense in the aggravated identity theft count is

9 mail fraud, which prohibits in relevant part:

10 Whoever, having devised or intending to devise any scheme or artifice to

defraud, or for obtaining money or property by means of false or fraudulent

11

pretenses, representations, or promises, … for the purpose of executing such

12 scheme or artifice or attempting so to do, places in any post office or

authorized depository for mail matter, any matter or thing whatever to be sent

13

or delivered by the Postal Service, … any such matter or thing….

14

18 U.S.C. § 1341. The second underlying predicate offense in the aggravated identity theft

15

count is fraudulent use of the Social Security number of another person, which prohibits a

16

person from “disclos[ing], us[ing], or compel[ing] the disclosure of the social security

17

number of any person in violation of the laws of the United States.” 42 U.S.C. § 408(a)(8).

18

Under Dubin, the factual basis must be sufficient to show that Martinez’s misuse of his

19

clients’ “means of identification” was “at the crux” of what made his mail fraud criminal

20

and his fraudulent use of the Social Security number of another person criminal. Dubin,

21

599 U.S. at 114. “Moreover, where (as here) the predicate crime involves ‘fraud or deceit,’

22

Dubin states that ‘the means of identification specifically must be used in a manner that is

23

fraudulent or deceptive,’ meaning that the ‘fraud or deceit’ must go ‘to ‘who’ is involved.’”

24

United States v. Parviz, --- F.4th ----, No. 22-50160, 2025 WL 851078, at *4 (9th Cir. Mar.

25

19, 2025) (quoting Dubin, 599 U.S. at 132).

26

In Dubin, the defendant, a manager of a psychological services company, defrauded

27

Medicaid when he overbilled for psychological testing by inflating the credentials of the

28

1 employee who performed the testing. See Dubin, 599 U.S. at 110. The tests themselves

2 were valid and had been performed on the patient named in the claim by the employee

3 named in the claim, but the employee’s overstated credentials resulted in a higher rate of

4 reimbursement, which constituted the charged healthcare fraud. In addition to healthcare

5 fraud, the Government also charged the defendant with aggravated identity theft, because

6 the defendant used the patient’s identification when submitting the fraudulent claims. The

7 Court concluded that treating such conduct as identity theft would broaden the statute

8 beyond reasonable bounds, “covering any time another person’s means of identification is

9 employed in a way that facilitates the crime.” Id. at 122.

10 Similarly, in Ovsepian, the Ninth Circuit considered whether a defendant committed

11 aggravated identity theft by keeping a patient’s health care file “without her authorization”

12 so that the defendant’s medical clinic, which was engaged in health care fraud, could

13 “protect against a possible audit.” 113 F.4th at 1208. While maintaining the patient’s health

14 care file on site “may have lent [the clinic] the air of legitimacy and thereby helped [it] to

15 survive an audit,” the Ninth Circuit found that the defendant’s possession was “not at the

16 ‘crux’ of the conspiracy to commit healthcare fraud.” Id. Instead, it was “an ‘ancillary

17 feature’ of the scheme that merely facilitated its commission.’” Id. The Ninth Circuit

18 emphasized that, because the government had made a “strategic choice” to base its

19 aggravated identity theft prosecution on Ovsepian’s possession of a single patient’s file, it

20 would not consider whether other conduct constituted aggravated identity theft. Id. The

21 Ninth Circuit thus reversed the district court’s denial of Ovsepian’s 18 U.S.C. § 2255

22 habeas petition and directed the district court to vacate his judgment as to the aggravated

23 identity theft count.

24 By contrast, in Parviz, the Ninth Circuit held that the evidence was sufficient to

25 satisfy the Dubin standard for an aggravated identity theft conviction involving fraud or

26 deceit. In Parviz, the defendant’s convictions for making a false statement on a passport

27 application and aggravated identity theft arose from her scheme to kidnap C.P., her

28 biological daughter over whom she had lost her parental rights, and then to take C.P. out

1 of the United States. See 2025 WL 851078, at *2. In order to obtain C.P.’s passport without

2 presenting C.P. in person (as is normally required by federal regulations), “Parviz presented

3 a fraudulent letter falsely stating that C.P. was immunocompromised, that she required

4 ‘emergency travel to the U.K. for medically necessary operations,’ and that personally

5 appearing for the passport application ‘would pose an unsurmountable risk’ to C.P.’s

6 health.” Id. at *4. This letter “purported to be from ‘Dr. Bret Allen Barker, DNP, FNP,’”

7 and included Barker’s name, National Provider Index number (“NPI”), registered nursing

8 number, and signature. Id. at *2. Although Barker, who was romantically involved with

9 Parviz, “minimally” assisted Parviz in drafting the letter, “crucially, the record evidence

10 supports a rational inference that Parviz assembled the letter and forged Barker’s

11 signature.” Id. at *5. The Ninth Circuit stated that, “[o]n this record, a rational trier of fact

12 could find that the use of Barker’s ‘means of identification’—namely, his name, NPI, and

13 registered nursing number—was central to the fraudulent letter’s objective of establishing

14 a medical excuse from the State Department’s regulation requiring a minor’s personal

15 appearance for a passport application.” Id. The court stated that, “[f]urther, because Parviz

16 prepared the letter and forged Barker’s signature, a rational jury could conclude that there

17 was falsity as to ‘who’ was making the critical misrepresentations contained in the letter.”

18 Id. (quoting Dubin, 599 U.S. at 132). The Ninth Circuit concluded that, “the evidence is

19 sufficient to support a finding that Parviz’s use of Barker’s means of identification was at

20 ‘the crux of [her] underlying criminality.’” Id. (quoting Dubin, 599 U.S. at 122).

21 The facts in Martinez’s case are analogous to those in Parviz and stand in contrast

22 to those in Dubin and Ovsepian. The factual basis of Martinez’s Plea Agreement states that

23 Martinez, “with the intent to defraud, prepared a false set of tax returns for his clients

24 showing a substantially lower amount of tax due and owing.” (ECF No. 67 at 7.) “Without

25 his clients’ knowledge, consent, or authorization, [Martinez] filed the false tax returns with

26 IRS and FTB in lieu of the original returns presented and provided to his clients.” Id. at 7–

27 8. Martinez “misused his clients’ means of identification, including their names and Social

28 Security numbers (SSNs), to prepare and file false tax returns without his clients’

1 knowledge, consent, or authorization.” Id. at 8. Martinez “during and in relation to the

2 felony offense of mail fraud, … and during and in relation to the felony offense of using

3 the SSN … of another person … to file a false and fraudulent federal income tax return, …

4 knowingly possessed and used, without lawful authority, a means of identification of

5 another person, to wit: the name of the person with initials J.D.S. and the SSN of the person

6 with initials J.D.S., namely XXX-XX-8044, knowing that said means of identification

7 belonged to the person with initials J.D.S.” Id. at 13–14. Martinez similarly “knowingly

8 possessed and used, without lawful authority, a means of identification of” six other people,

9 “during and in relation to the felony offense of mail fraud, … and during and in relation to

10 the felony offense of using the SSN … of another person to file a false and fraudulent

11 federal income tax return.” Id. at 14–15.

12 In Dubin, the psychological tests that were billed to Medicaid were valid and had

13 been performed by the employee named in the claim on the patient named in the claim; the

14 “crux of the healthcare fraud [at issue in Dubin] was a misrepresentation about the

15 qualifications of petitioner’s employee” and “[t]he patient’s name was an ancillary feature

16 of the billing method employed.” Dubin, 599 U.S. at 132. Here, by contrast, Martinez

17 mailed “false set[s] of tax returns” “without his clients’ knowledge, consent, or

18 authorization,” which showed “a substantially lower amount of tax due and owing.” (ECF

19 No. 67 at 7–8.) Martinez’s clients’ Social Security numbers and names were not “an

20 ‘ancillary feature’ of the scheme,” as was the case in Dubin and Ovsepian. Ovsepian, 113

21 F.4th at 1208 (quoting Dubin, 599 U.S. at 132).

22 Instead, as in Parviz, Martinez’s use of his clients’ “means of identification was at

23 ‘the crux of [his] underlying criminality.’” Parviz, 2025 WL 851078, at *5 (quoting Dubin,

24 599 U.S. at 122). This is because, as in Parviz, “the use of [Martinez’s clients’] ‘means of

25 identification’ … was central to the fraudulent [tax returns’] objective” related to the

26 underlying mail fraud and fraudulent use of the Social Security number of another person.

27 Id. And as in Parviz, “because [Martinez] prepared the [fraudulent tax returns] and

28 [misused his clients’ means of identification without their consent], a rational jury could

1 conclude that there was falsity as to ‘who’ was making the critical misrepresentations

2 contained in the [tax returns].” Id. (quoting Dubin, 599 U.S. at 132). For this reason, claim

3 one of Martinez’s § 2255 Motion, which contends that Martinez “did not commit

4 aggravated identity theft … based on … Dubin” (ECF No. 170 at 2), fails on the merits.

5 In claim two of the § 2255 Motion, Martinez contends that he “did not violate [42

6 U.S.C.] § 408(a)(8)[, fraudulent use of a Social Security number of another person,]

7 because, based on the decision in Dubin, which Defendant argues is also applicable to

8 §408(a)(8), his disclosure, use, or compelled disclosure of his clients’ Social Security

9 number was not at the crux of its predicate offense’s crime, what made its predicate offense

10 criminal.” (ECF No. 170 at 2.) Dubin interprets the text of the aggravated identity theft

11 statue, 18 U.S.C. § 1028A. Dubin did not reference 42 U.S.C. § 408, and nothing in Dubin

12 suggests that its reasoning extends to 42 U.S.C. § 408, which has different elements than

13 18 U.S.C. § 1028A. Even if Dubin’s statutory interpretation and reasoning were extended

14 to 42 U.S.C. § 408, Martinez’s fraudulent use of his clients’ Social Security numbers was

15 at the crux of his criminal scheme, as discussed above. As established by the factual basis

16 of Martinez’s Plea Agreement, Martinez misused his clients’ Social Security numbers on

17 the false tax returns to deceive the IRS and FTB as to “who” was filing the false returns.

18 Claim two of Martinez’s § 2255 Motion fails on the merits.

19 The Court finds that application of Dubin to the facts of this case does not invalidate

20 Martinez’s convictions and sentences imposed on Counts 21 and 33 of the First

21 Superseding Indictment. The Court finds that Martinez’s § 2255 Motion fails on the merits.

22 The Court also finds that Martinez knowingly and voluntarily waived his right to

23 collaterally attack his convictions and sentences on the two counts he now challenges in

24 his § 2255 Motion, and no exception to this waiver applies.

25 E. Evidentiary Hearing

26 The Court finds, for the reasons discussed above, that the § 2255 Motion fails to

27 adequately allege facts which would entitle Martinez to relief, and the § 2255 Motion and

28 record of the case conclusively show that he is not entitled to relief. Accordingly, the Court

| ||finds that Martinez’s claims may be resolved on the record and do not require an

2 || evidentiary hearing.'! See United States v. Rodriguez-Vega, 797 F.3d 781, 791-92 (9th Cir.

3 }}2015).

4 F. Certificate of Appealability

5 A certificate of appealability is authorized “if the applicant has made a substantial

6 ||showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this

7 || threshold substantial showing, the movant must “demonstrate that the issues are debatable

8 among jurists of reason; that a court could resolve the issues [in a different manner]; or that

9 ||the questions are adequate to deserve encouragement to proceed further.” Lambright v.

10 || Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (quoting Barefoot v. Estelle, 463 U.S. 880,

11 ||893 n.4 (1983)). The Court finds that the Barefoot standard has not been satisfied as to

12 || either of the claims in the Section 2255 Motion. A certificate of appealability is denied.

13 UI. Conclusion

14 IT IS HEREBY ORDERED that the § 2255 Motion is denied. (ECF No. 170.) A

15 || certificate of appealability is denied as to all claims presented in the § 2255 Motion.

16 Dated: April 8, 2025 Nitta Z. Ma

17 Hon, William Q. Hayes

18 United States District Court

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3g ||' Martinez concedes that “resolution of his § 2255 Motion does not require discovery nor an evidentiary

hearing.” (ECF No. 172 at 2.)

1°

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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