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Shannon v. United States

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

May 18, 2018

OTIS SHANNON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          FINAL REPORT AND RECOMMENDATION

          RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. PROCEDURAL HISTORY

         A 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].

         The 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].

         At the 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. [Id.].

         The 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 D.B.H.D.D.
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].

         The 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 ...


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