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Webman v. United States

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

October 3, 2017

LARRY WEBMAN, Movant,
v.
UNITED STATES OF AMERICA, Respondent. CRIMINAL INDICTMENT No. 1:13-CR-0025-SCJ-JFK-1

         MOTION TO VACATE 28 U.S.C. § 2255

          ORDER ADOPTING MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          HONORABLE 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”) [332], which recommends denying Movant's 28 U.S.C. § 2255 motion to vacate [303] and a certificate of appealability, and on Movant's objections thereto [341].

         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).

         I. Discussion[1]

         The grand jury for the Northern District of Georgia charged Movant with count one, conspiracy to distribute controlled substances, and count eight, conspiracy to launder money, along with six controlled-substances offenses. (First Superseding Indictment, ECF No. 133.) The conspiracy involved the illegal distribution of drugs through a pain clinic, and count one charges, inter alia, that “[d]uring the course and in furtherance of the conspiracy, [Movant] and [co-defendant Randy Webman] hired armed security guards to monitor the customers at the clinics. The security guards directed customers to wait outside in their cars to avoid attracting the attention of law enforcement.” (Id. at 11-12.)

         Movant pleaded guilty to counts one and eight, the controlled substances and money laundering conspiracies. (Guilty Plea and Plea Agreement, ECF No. 222-1.) The government agreed to recommend a 108-month term of imprisonment. (Id. at 13.) The government also agreed that, if it determined that Movant's cooperation qualified as substantial assistance, it would recommend a downward departure under U.S.S.G. § 5K1.1.[2] (Id. at 11-12.) The parties agreed that “the determination as to whether [Movant had] provided ‘substantial assistance' rest[ed] solely with the Government.” (Id. at 12.)

         At the May 6, 2015, plea hearing, the government reviewed the plea agreement and stated that Movant knew that it rested solely with the government to determine whether he had provided substantial assistance and to request a downward departure. (Plea Hr'g Tr. at 13, ECF No. 311.) Movant agreed that the government's presentation was correct. (Id. at 15.) The Court accepted Movant's guilty plea. (Id. at 28.)[3]

         Movant's Presentence Investigation Report (PSR) shows (1) that Movant's criminal history category of I includes a Florida conviction for a scheme to defraud and a federal conviction for mail fraud and interstate transportation of stolen property, (2) that Movant's offense level was 43, and (3) that his guidelines range was life. (PSR ¶¶ 252, 253 and Part D; Sentencing Tr. at 2, ECF No. 301.) Movant's offense level included a two-level enhancement under U.S.S.G. § 2D1.1(b)(2) based on the possession of a gun by the clinic's security guard Douglas Bearden, an unindicted co-conspirator. (PSR ¶ 232.)[4] Movant did not object to that enhancement. (See Sentencing Tr. at 4.)[5]

         At Movant's sentencing on the morning of January 21, 2016, Movant's counsel asked the Court in imposing sentence to consider, among other things, that Dr. Williams had apparently been offered a six-year (60-month) sentence whereas the government had offered to recommend a nine-year (108-month) sentence for Movant.[6](Minute Entry, ECF No. 274; Sentencing Tr. at 15.) Counsel asked the Court to consider Movant's assistance to the government and stated “I submit to the Court it was only because my client rolled over and told the truth at his debriefings that convinced, helped convince Dr. Williams to enter a plea.” (Sentencing Tr. at 14-15, 17.) Counsel stated, “I have respectfully asked the government to give substantial The 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. assistance, they disagree. Certainly the Court can take that into consideration with its sentence . . . .” (Id. at 15).

         The government informed the Court that the government had determined that Movant had not provided substantial assistance and that a 5K1.1 motion would not be filed. (Id. at 17, 19.) The government explained as follows -

[T]he government had not anticipated using [Movant] as a trial witness in this case. And I will also note that the positions that [Movant] has taken in his objections to the PSR I find contrary to being a witness for the prosecution. I mean specifically he has taken the position that he believed that the visits were adequate, the visits with Dr. Williams -excuse me - were adequate according to the Georgia Medical Board Guidelines. And as it pertains to Ms. Gaitan, [Movant] says that he fully believed that she was licensed to perform the tasks for which she was hired.

(Id. at 18.) The government also stated as follows -

         Your honor, the government's recommendation is as follows: . . . we actually agreed to a sentence recommendation in the plea agreement that was entered back in May of 2015. The government agreed to recommend a sentence of 108 months. Essentially that would be 108 months on count one and 108 months on count eight to run concurrently in this particular case. That does create sort of a very large variance from what's in the presentence investigation report. I can tell you that the government, in its negotiations with [Movant], considered again his age, as he has noted, and conserving resources, the government's resources, the Court's resources in terms of avoiding a very lengthy trial in reaching this 108-month recommendation. That's to the imprisonment section.

In terms of the supervised release, the government's recommendation would be ten years of supervised release. . . . The reason for such a significant supervised release recommendation is because I believe, and I think your honor would agree, that 108 months is a very generous recommendation from the government considering all of the sort of 3553(a) factors that I have described thus far. I think it's very generous. And again, most of that is because of, again, the conservation of resources and taking into account [Movant's] age.
For that reason, because it's so generous in terms of the imprisonment, I think that - and because his sort of, his dealings when he has not been in jail have been questionable, we think that ten years of supervised release on the back end should make up for the lower imprisonment sentence.

(Sentencing Tr. at 27-28.) The Court commented that the government had laid out an argument for more than 108 months. (Id. at 28.) Counsel for the government responded that the history and characteristics of Movant would “urge no lower than 108 months” and explained as follows -

I mean 108 months is generous and for that reason we think that the ten years on the back end . . . is appropriate.
So I would say that 108 months' imprisonment, ten years' supervised release, not only is that urged by the 3553(a) factors, it also reflects the seriousness of this particular offense, particularly the ten years' supervised release. It will promote respect for the law, provide a just punishment for [Movant] here, a 67-year-old male. I'd like to think, I would hope that it would afford adequate deterrence, although the way we have seen these cases, we have a lot of this going on. You know, at [Movant's] age, being in prison for 108 months, that should hopefully protect the public. We have heard from a substance abuse professional that he probably does require some drug abuse treatment, substance abuse education treatment while he is in prison, and hopefully he will get that during the 108-month sentence. So, again, that's the government's recommendation, your honor.

(Id. at 29.)

         Movant's counsel again asked the Court to consider Movant's cooperation and to impose a sentence of less than 108 months . (Id. at 30-31.) The Court stated that Movant's willingness to testify obviously had some effect, but that only Dr. Williams would know. (Id.) The Court then stated that it disagreed with Movant's and the government's counsel, that it had considered the volume of pills given out ($2.5 million annually) and Movant's prior federal conviction, and that it originally had considered a “pretty high” sentence but would take into consideration Movant's age. (Id. at 32.) The Court imposed ...


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