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Williams v. United States

United States District Court, N.D. Georgia, Atlanta Division

September 26, 2017

GEORGE WILLIAMS, M.D., Movant,
v.
UNITED STATES OF AMERICA, Respondent. Civil File No. 1:16-CV-3916-SCJ-JFK

          ORDER ADOPTING MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION MOTION TO VACATE 28 U.S.C. § 2255

          STEVE C. JONES, UNITED STATES DISTRICT JUDGE.

         The matter is before the Court on Magistrate Judge Janet F. King's Final Report and Recommendation (“R&R”) [334], which recommends denying Movant's motion to vacate [302] and a certificate of appealability, and on Movant's objections [339].

         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). “Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court.” United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal quotation marks omitted). Absent objection, the district judge “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge, ” 28 U.S.C. § 636(b)(1), and “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation, ” Fed.R.Civ.P. 72, advisory committee note, 1983 Addition, Subdivision (b). “[T]he district court has broad discretion in reviewing a magistrate judge's report and recommendation” - it “does not abuse its discretion by considering an argument that was not presented to the magistrate judge” and “has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge.” Williams v. McNeil, 557 F.3d 1287, 1290-92 (11th Cir. 2009).

         I. Discussion[1]

         The grand jury for the Northern District of Georgia indicted Movant - along with Larry Webman, Randy Webman, Dara Webman, Liz Gaitan, and George Borbas - for conspiring from July 2011 through January 24, 2013, to “distribute and dispense, outside the usual course of professional medical practice and for no legitimate medical purpose, mixtures and substances containing detectable amounts of various controlled substances, including, but not limited to, Oxycodone (Schedule II), Hydromorphone (Schedule II), Oxymorphone (Schedule II), Morphine Sulfate (Schedule II), Alprazolam (Schedule IV), Lorazepam (Schedule IV), and Carisoprodol (Schedule IV), in violation of Title 21, United States Code, Sections 841(a)(1), (b)(1)(C), and (b)(2).” (First Superseding Indictment at 6-7, ECF No. 133.)[2]

         Movant, represented by Page Pate, entered into a plea agreement, in which he pleaded guilty to count one, the controlled substances conspiracy. (Guilty Plea and Plea Agreement, ECF No. 241-1; Plea Hr'g Tr., ECF No. 287.) In the plea agreement, Movant agreed that he was in fact guilty of the crimes charged in Count One and that the government would be able to prove that he “did knowingly and willfully combine, conspire, confederate, agree, and have a tacit understanding with co-conspirators Randy Webman, Larry, Webman, Dara Webman, and Liz Gaitan . . . to distribute and dispense controlled substances outside the usual course of professional medical practice and for no legitimate medical purpose.” (Guilty Plea and Plea Agreement at 1, 5.) The parties agreed, in order to meet the goals of a fair and reasonable sentence under 18 U.S.C. § 3553(a), to recommend a seventy-two month term of imprisonment.

         (Id. at 9.)

         At the plea hearing, the government stated that the evidence would show as follows:

Beginning on or about July 2011 [Movant] was employed at a purported medical clinic known as - by various names: Premier Pain Management or referred to as PPMI.[3] PPMI was owned and managed by Larry Webman and Randy Webman. Dara Webman and Liz Gaitan, aka Liz Troncoso, were employees of PPMI.
As part of the conspiracy Larry Webman and Randy Webman knowingly operated and maintained PPMI for the purpose of unlawfully distributing controlled substances stemming from a DEA investigation wherein DEA conducted surveillance and eventually sent undercover office[r]s in to investigate the operations of PPMI.
During the course of the conspiracy [Movant] was aware that some patients came to PPMI seeking controlled substances not for a legitimate medical purpose but due to an addiction and/or for the purposes of selling controlled substances to others.
The government had an expert in this case and that expert has reviewed some of the patient files and that expert would testify regarding his professional opinion on those files. And that during the course of the conspiracy [Movant], with the knowledge of his co-conspirators, prescribed controlled substances to patients of PPMI outside the usual course of professional medical practice, knowing that there was no legitimate medical purpose for them in the following ways: sometimes without performing a sufficient medical exam, sometimes without assessing the individual patient's risk of abuse, sometimes without seeing the patient in person.
For example, on October 4th, 2012, [Movant], outside the usual course of professional medical practice, knowing there was no legitimate medical purpose for them, prescribed the following controlled substances without seeing patient “SM” in person: Hydromorphone, Schedule II; Oxycontin, Schedule II, and Carisoprodol, Schedule IV. SM was in fact an undercover DEA agent posing as a patient with no legitimate medical need for those controlled substances and that these controlled substances were mixtures and substances containing detectable amounts of various controlled substances, Schedule II and Schedule IV.

(Plea Hr'g Tr. at 20-22.) Movant agreed with the government's summary and stated that he was in fact guilty of Count One of the indictment. (Id. at 23.)

         The probation department prepared Movant's Presentence Investigation Report (PSR), which recommended a base offense level of thirty-four under U.S.S.G. § 2D1.1(c)(3), based on a drug equivalency of 20, 000 kilograms of marijuana; recommended a two-level firearm increase under U.S.S.G. § 2D1.1(b)(1); stated that a two-level offense level decrease under U.S.S.G. § 2D1.1(b)(17) (applicable if a defendant meets the five safety-valve criteria in U.S.S.G. § 5C1.2(a)) was unwarranted; and did not recommend a U.S.S.G. § 3B1.2(b) minor-role decrease. (See PSR ¶¶ 236-238, 240.)

         Counsel objected to the § 2D1.1(b)(1) firearm increase, initially objected but then withdrew objection to the failure to recommend a § 2D1.1(b)(17) safety-valve decrease, and did not object to the § 2D1.1(c)(3) base offense level or challenge the absence of a § 3B1.2(b) minor-role decrease. (PSR ¶¶ 237, 238; Sentencing Tr. at 4, ECF No. 288.) The Court overruled Movant's objection to the firearm enhancement and imposed an eighty-four month sentence. (Sentencing Tr. at 4-5, 36.) The record does not show that Movant appealed.

         Movant now raises a collateral challenge and asserts ineffective assistance of counsel based on counsel's failure to (1) properly object to the two-level offense level increase under § 2D1.1(b)(1) for possession of a firearm; (2) persist in seeking a two-level offense level decrease under § 2D1.1(b)(17), based on Movant satisfying the safety-valve criteria in § 5C1.2(a); (3) seek a two-level § 3B1.2(b) minor-role decrease; and (4) challenge the relevant conduct (responsibility for the equivalent of at least 20, 000 kilograms of marijuana) attributed to Movant under § 2D1.1(c)(3) in calculating his base offense level. (Mot. to Vacate at 3 and Mov't Mem. at 13-27, ECF No. 302.) For relief, Movant seeks resentencing. (Id. at 28.)

         The Magistrate Judge recommends that Movant's grounds fail, and Movant has objected. (R&R, ECF No. 334; Objections, ECF No. 339.) In sections A. through D. below, the Court presents additional facts as necessary and discusses the Magistrate Judge's recommendation on each ground, along with Movant's objections thereto.[4]

         A. Ground One - U.S.S.G. § 2D1.1(b)(1) Firearm Enhancement

         The PSR recommended a two-level firearm increase, as follows - “Pursuant to USSG § 2D1.1(b)(1), 2 levels are added because Douglas Bearden, acting as a security guard for the clinic, possessed a firearm. Considering that the clinic was operating illegally as a pill mill, and that this information was known by the employees of the clinic, the firearm was being used to protect the proceeds of the pill mills from the increased danger of the clientele they were dealing with on a regular basis.”[5] (PSR ¶ 237 (emphasis omitted).)

         Counsel objected to the two-level firearm increase because Bearden, not Movant, possessed the firearm. (Id.) In Movant's sentencing memorandum, counsel objected that the government had failed to meet its burden by showing (1) that Bearden was an indicted co-conspirator - when he was simply an employee, did not distribute or buy drugs, did not share in drug proceeds, and did not know of the illegal scheme to distribute drugs; (2) that Bearden possessed a firearm in furtherance of the conspiracy - when there was no need for Bearden to carry a weapon in regard to the conspiracy; or (3&4) that Bearden's firearm possession during the time that Movant was part of the conspiracy was reasonably foreseeable by Movant - when Movant had never asked Bearden to carry a firearm. (Sentencing Mem. at 2-3, ECF No. 267 (relying on United States v. Westry, 524 F.3d 1198, 1221(11th Cir. 2008).) At the sentencing hearing, the Court stated, All right. So the only objection you have is to the possession of the firearm.

. . . [T]he way I look at that is that it's part of it. . . . I understand you all are saying it doesn't relate, but in all due respect to you, Mr. Pate, I think it does relate to the security officer being there, the large number of people there. They are more or less protecting them, the money, protecting them from abuse or whatever with the money for these illegal transactions, drug transactions. Well, I won't want say transactions but illegal acts going on.

(Sentencing Tr. at 4.) Counsel asserted that, although the clinic owners perhaps though it was a good idea to protect the proceeds, there was no evidence that Movant had ever suggested the need for armed security. (Id. at 4.) The Court overruled Movant's objection. (Id. at 4-5.)

         In his first ground, Movant argues that he received ineffective assistance of counsel because counsel failed to object persuasively to the firearm increase. (Mov't Mem. at 16-17 (citing United States v. Otero, 890 F.2d 366, 367 (11th Cir. 1989).) Movant asserts that the enhancement should not apply because Bearden was not charged as a co-conspirator and because Movant did not hire Bearden or cause him to carry a firearm. (Id. at 17.) In his reply to the government's response, Movant further argues that counsel was ineffective because he attempted to show that the enhancement did not apply. (Mov't Reply at 11, ECF No. 321.) Movant asserts that counsel should have required the government to show that the enhance did apply. (Id.) Movant argues that the government would not have been able to do so because Bearden was not charged as a co-conspirator and Movant did not hire Bearden as a security guard. (Id.) Movant asserts that he was prejudiced because it raised his offense level by two points and changed his guidelines range. (Id. at 13.)

         After citing the relevant standard under Strickland v. Washington, 466 U.S. 668 (1984), [6] the Magistrate Judge observed that there was no requirement that a co- conspirator in possession of a firearm be a charged co-conspirator and determined as follows -

It is apparent that the PSR recommendation and the government's agreement thereto demonstrated, to the Court's satisfaction, that § 2D1.1(b)(1) applied. (See PSR ¶ 237; Sentencing Tr. at 4). Counsel performed reasonably when he attempted to convince the Court that the enhancement should not apply. To the extent that counsel argued that § 2D1.1(b)(1) should not apply rather than arguing that the government had failed to show that it did apply, there is no distinction between the arguments that warrants finding that “no competent counsel would have” presented the argument as presented by counsel. Brownlee v. Haley, 306 F.3d 1043, 1059 (11th Cir. 2002) (“[W]e have held that in order to prove deficient performance, ‘a petitioner must establish that no competent counsel would have taken the action that his counsel did take.'” (quoting Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000))).
Further, Movant's current argument is essentially the same as the argument presented by counsel. Movant now argues that Bearden was not charged as a co-conspirator and that he did not hire Bearden or cause him to carry a firearm. Counsel argued that Bearden was not an indicted co-conspirator and that Movant never suggested the need for armed security or instructed Bearden to carry a firearm. Movant's current argument does not demonstrate that counsel was deficient. Ground one is without merit.

(R&R at 12 n.5, 14-15.)

         Movant objects that “the Report stated that it did not matter whether the government had to show that the enhancement applied or whether Pate argued that the gun enhancement should not apply; since, there is no distinction between the arguments that warrants finding that ‘no competent counsel would have' presented the argument as presented by counsel.” (Objections at 10-11.) Movant further objects that “the Report stated that Petitioner's current argument is essentially the same as the argument presented by Pate before and at sentencing . . . .” (Id. at 11.) Movant (1) states that the argument was not the same as counsel relied on Westry and Movant relies on Otero and (2) argues that the Magistrate Judge incorrectly stated that Otero does not require that the co-conspirator be charged. (Id. at 11, 13.)

         “The [two-level] enhancement for weapon possession in subsection (b)(1) reflects the increased danger of violence when drug traffickers possess weapons. The enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, Application Note 11(A). “To apply the firearm enhancement of U.S.S.G. § 2D1.1(b)(1) based on a co-conspirator's gun possession, the government must show by a preponderance of the evidence that ‘(1) the possessor of the firearm was a co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the defendant was a member of the conspiracy at the time of the possession, and (4) the co-conspirator possession was reasonably foreseeable by the defendant.'” Westry, 524 F.3d at 1221 (quoting United States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999)).

         If at sentencing, “the government is successful in meeting this initial burden, then the evidentiary burden shifts to the defendant, who must demonstrate that a connection between the weapon and the offense was ‘clearly improbable.'” United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006) (quoting United States v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001)).

         Notably, the court in Otero stated, “Sentence enhancement for a co-conspirator's firearms possession is proper if three conditions are met: first, the possessor must be charged as a co-conspirator; second, the co-conspirator must be found to have been possessing a firearm in furtherance of the conspiracy; and third, the defendant who is to receive the enhanced sentence must have been a member of the conspiracy at the time of the firearms possession.” Otero, 890 F.2d at 367.

         The use of the wording “charged as a co-conspirator” in Otero, 890 F.2d at 367, has been held to be dicta. “The Otero court was not faced with the question whether a defendant could be sentenced based on the possession of a firearm by an uncharged or unnamed co[-]conspirator because the co-conspirators in that case were named and charged as co-conspirators.” United States v. Luiz, 102 F.3d 466, 469 (11th Cir. 1996). The Eleventh Circuit has stated, “nowhere in the Otero opinion is it said that enhancement is allowable only if the three conditions set out in the opinion are met.” United States v. Nino, 967 F.2d 1508, 1514 (11th Cir. 1992) (emphasis added).

The Otero court faced a case in which certain facts existed and held that, given the facts before the court, enhancement was permitted by the guidelines. The words of Otero, like the words of every judicial opinion, must be read in the context of the particular facts of the case. . . .
. . .
In this case, Kalasho died before the conspiracy ended, and Askar cooperated with the government in exchange for immunity. But these events in no way negate their participation in the conspiracy or their use of firearms to further the group's mission. . . . Otero's holding remains good law in this circuit; but the rules of co-conspirator liability . . . do not require that the firearm possessor be a charged co-conspirator when that co-conspirator dies or is otherwise unavailable for indictment. To the extent, if any, the Otero opinion's words-as distinguished from the Otero decision-suggest otherwise, those words are dicta and are not the law.

Nino, 967 F.2d at 1514; see also United States v. Delgado, 56 F.3d 1357, 1372 (11th Cir. 1995) (confirming that Otero “identified three conditions that support a sentence enhancement for a coconspirator's firearm possession” but did not hold that an enhancement was allowable only if those conditions were met).

         Movant's first objection fails. A full reading of the Magistrate Judge's reasoning does not show that the R&R disregarded the government's initial burden at sentencing or determined that it did not matter whether the government met its intital burden. Counsel in the sentencing memorandum had in fact argued that the government had failed to meet its burden and then proceeded to argue why the enhancement should not apply. The Magistrate Judge (1) first clarified that it was apparent that the government had demonstrated to the Court's satisfaction that the enhancement applied (thus meeting its initial burden) and (2) then addressed counsel's performance in attempting to show otherwise. It is evident that the Magistrate Judge was addressing Movant's argument in his reply that counsel was ineffective for arguing that the enhancement did not apply instead of arguing that the government had failed to show that it di ...


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