United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION
RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE.
matter has been submitted to the undersigned Magistrate Judge
for consideration of Otis Shannon's pro se
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255, [Doc. 181], the government's
response, [Doc. 187], and Shannon's reply, [Doc. 188].
For the reasons that follow, it is
RECOMMENDED that Shannon's § 2255
motion be denied.
federal grand jury in the Northern District of Georgia
returned a thirteen count indictment against Shannon and
seven co-defendants, charging Shannon in Counts One, Three,
Four, and Six with conspiring to commit healthcare fraud, in
violation of 18 U.S.C. §§ 1347 and 1349; and in
Counts Two, Five, and Seven with conspiracy to commit
bribery, in violation of 18 U.S.C. § 371. [Doc. 1].
Represented by retained counsel Michael Katz
(“Katz”) and Thomas Mondelli, Shannon entered a
negotiated guilty plea to Counts One and Two. [Docs. 99;
186]. The government agreed to dismiss the remaining counts.
[Doc. 99-1 at 5].
plea agreement included a limited waiver of appeal, which
provides that Shannon
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 [Shannon] may
file a direct appeal of an upward departure or upward
variance above the sentencing guideline range as calculated
by the district court. Claims that [Shannon's] counsel
rendered constitutionally ineffective assistance are excepted
from this waiver.
[Id. at 17]. This provision of the plea agreement
further provides that Shannon may file a cross appeal if the
government appeals the sentence. [Id.]. Shannon
signed the plea agreement and a separate certification
section, which states 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
post-conviction proceeding. No one has threatened or forced
me to plead guilty, and no promises or inducements have been
made to me other than those discussed in the Plea Agreement.
[Id. at 18-19].
plea hearing, Shannon was placed under oath and confirmed
that he had signed the plea agreement. [Doc. 186 at 2-3].
When the Court inquired whether Shannon had ever been treated
or hospitalized for any mental illness or condition, Shannon
responded that he had “at times suffered from
depression, ” had been diagnosed with bipolar disorder
“about ten years ago, ” and had “not had
any active treatment or episodes that would warrant seeking
any since then.” [Id. at 5]. Shannon then
confirmed that his prior issues were “not causing [him]
any problem . . . such that [he was] having any difficulties
understanding the proceedings or the consequences of [his]
decision to plead guilty.” [Id. at 6]. Katz
told the Court that he did not have any doubts as to
Shannon's competency to enter a guilty plea.
Court explained to Shannon the rights he was giving up by
pleading guilty, and Shannon stated that he understood.
[Id. at 6-9]. Shannon also confirmed that he
understood the nature of the charges against him.
[Id. at 13]. The government then summarized what the
evidence would show if the case went to trial as follows:
. . . Shannon . . . was an employee of the Georgia Department
of Behavioral Health and Developmental Disabilities, also
know as D.B.H.D.D.[, which] is a state agency that grants or
denies approval for those that wish to provide mental health
and substance abuse treatment and charge Medicaid in the
state of Georgia. As a part of his role with that agency, Mr.
Shannon received applications submitted by private providers
to become Medicaid eligible, and he had the job of making
sure they met the requirements that the agency had in order
to . . . move on to the next step.
The government would present evidence that while he was
employed with D.B.H.D.D., one, the agency received in excess
of $10, 000 during the period of January 1, 2013 through
December 31, 2015 from the federal government related to
Medicaid payments. . . . [Shannon] took bribe payments from
multiple providers as alleged in the indictment to, one,
accept applications that did not meet the program
requirements; two, to falsify documents that were lacking in
some of these applications; and, three, to falsify and
fraudulently prepare certain licensing that the agency
required before they could be accepted as a Medicaid provider
in the state. The government alleged that [Shannon] both
solicited bribes from people and accepted bribes from
individuals that were providers seeking to get approval from
The government would also provide evidence of individuals who
had never worked for these providers but whose resumés
and signed forms were incorporated within applications . . .
without their knowledge by Mr. Shannon. . . . Many of these
applications . . . did not actually make it all the way
through, but a number of them did. . . . [A]bout $5.9 million
was billed by some of these agencies in which Mr. Shannon had
the - - at the very beginning level of allowing the
application to go through when it did not meet the program
requirements at the time and should have been denied. And he
receives cash payments and checks for him to push those
applications through . . .
[Id. at 13-15]. Shannon affirmed that he did not
disagree with any of the facts stated by the government.
[Id. at 15].
government explained that Shannon faced a possible maximum
sentence of ten years of imprisonment on Count One and five
years on Count Two. [Id. at 16]. The Court advised
Shannon that it could impose the maximum sentence and that
Shannon could not withdraw his plea if he received a higher
sentence than he expected, and Shannon confirmed that he
understood. [Id. at 17]. The Court further explained
that it would consider the United States Sentencing
Guidelines in determining a reasonable sentence but could
impose a sentence above or below the guideline range, and
Shannon affirmed that he understood. [Id. at 18-19].
The Court also reviewed the terms of the appeal waiver, and
Shanon agreed that he understood the effect of the appeal
waiver. [Id. at 30-31]. Shannon acknowledged that no
one had promised him anything not contained in the plea
agreement, that no one had ...