United States District Court, N.D. Georgia, Rome Division
case is before the Court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence, which Petitioner
filed under 28 U.S.C.A. § 2255 ("§ 2255
Motion") , on the Final Report and Recommendation
of United States Magistrate Judge Walter E. Johnson ,
and on Petitioner's Memorandum in Support of Motion 2255,
which the Court construes as Petitioner's Objections to
the Final Report and Recommendation [651 ].
Standard of Review for a Report and Recommendation
U.S.C. § 636(b)(1) requires that in reviewing a
magistrate judge's report and recommendation, the
district court "shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made." 28
U.S.C. § 636(b)(1). The Court therefore must conduct a
de novo review if a party files "a proper, specific
objection" to a factual finding contained in the report
and recommendation. Macort v. Prem. Inc. 208
F.App'x 781, 784 (11th Cir. 2006); Jeffrey S. by
Ernest S. v. State Bd. of Educ 896 F.2d 507, 513
(11th Cir. 1990); United States v. Gaddy. 894 F.2d
1307, 1315 (11th Cir. 1990); LoConte v. Dugger. 847
F.2d 745, 750 (11th Cir. 1988). If no party files a timely
objection to a factual finding in the report and
recommendation, the Court reviews that finding for clear
error. Macort. 208 F.App'x at 784. Legal conclusions, of
course, are subject to de novo review even if no party
specifically objects. United States v. Keel. 164
F.App'x 958, 961 (11th Cir. 2006); United States v.
Warren. 687 F.2d 347, 347 (11th Cir. 1982).
September 16, 2013, a federal grand jury sitting in the
Northern District of Georgia returned a fifth superseding
indictment against Petitioner and twelve co-defendants.
(Fifth Superseding Indictment (Docket Entry No. 358).) Count
one of the fifth superseding indictment charged Petitioner
and his co-defendants with conspiring to distribute and to
possess within intent to distribute marijuana, in violation
of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii).
(id. at 1-3.) Count two of the fifth superseding
indictment charged Petitioner and four co-defendants with
conducting or directing an unlicensed money transmitting
business, in violation of 18 U.S.C. § 1960(a), 31 U.S.C.
§ 5330, and 18 U.S.C. §2. (Id. at 3-4.)
April 21, 2016, Petitioner pleaded guilty to count one.
(Minute Entry (Docket Entry No. 633); Plea Agreement (Docket
Entry No. 634).) The Plea Agreement provided, in relevant
26. LIMITED WAIVER OF APPEAL: To the maximum extend permitted
by federal law, [Petitioner] voluntarily and expressly waives
the right to appeal his conviction and sentence and the right
to collaterally attack his conviction and sentence in any
post-conviction proceeding (including, but not limited to,
motions filed pursuant to 28 U.S.C. § 2255) on any
ground, except that [Petitioner] may file a direct appeal of
an upward departure or upward variance above the sentencing
guideline range as calculated by the district court.
[Petitioner] understands that this Plea Agreement does not
limit the Government's right to appeal, but if the
Government initiates a direct appeal of the sentence imposed,
[Petitioner] may file a cross-appeal of that same sentence.
(Plea Agreement at 11 (capitalization in original).)
also signed a certification stating, in relevant part:
I have read the foregoing Plea Agreement and have carefully
reviewed every part of it with my attorney. I understand the
terms and conditions contained in the Plea Agreement, and I
voluntarily agree to them. I also have discussed with my
attorney the rights I may have to appeal or challenge my
conviction and sentence, and I understand that the appeal
waiver contained in the Plea Agreement will prevent me, with
the narrow exceptions stated, from appealing my conviction
and sentence or challenging my conviction and sentence in any
(Id. at 13.) As Judge Johnson noted, the Court
thoroughly discussed the appeal waiver provision with
Petitioner at Petitioner's plea hearing. (Final Report
& Recommendation at 3-4; see also Plea Hr'g Tr.
(Docket Entry No. 645) at 25- 28 (containing the Court's
discussion of the appeal waiver provision with Petitioner).)
15, 2016, the Court sentenced Petitioner to ninety-seven
months of imprisonment, the bottom end of Petitioner's
sentencing guidelines range as determined by the Court.
(Sentencing Hr'g Tr. (Docket Entry No. 646) at 11, 17;
Judgment & Commitment (Docket Entry No. 641).)
did not file a direct appeal. (See generally Docket.)
November 28, 2016, the Clerk received Petitioner's §
2255 Motion. (§ 2255 Mot. (Docket Entry No. 643).) On
January 25, 2017, Judge Johnson issued his Final Report and
Recommendation. (Final Report & Recommendation (Docket
Entry No. 648).) Judge Johnson recommended that the Court