United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
ORDER ADOPTING MAGISTRATE JUDGE'S FINAL REPORT
HONORABLE STEVE C. JONES UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Janet F.
King's Final Report and Recommendation
(“R&R”) , which recommends denying
Movant's 28 U.S.C. § 2255 motion to vacate  and
a certificate of appealability, and on Movant's
objections thereto .
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).
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.)
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. (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.)
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.)
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.) Movant did not
object to that enhancement. (See Sentencing Tr. 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.(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.
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 -
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
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.)
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 ...