United States District Court, N.D. Georgia, Atlanta Division
D. EVANS UNITED STATES DISTRICT JUDGE
before the Court is the Magistrate Judge's Report and
Recommendation (R&R) recommending that the instant motion
to vacate brought pursuant to 28 U.S.C. § 2255 be
denied. [Doc. 187]. Movant has filed his objections in
response to the R&R. [Doc. 190].
district judge has broad discretion to accept, reject, or
modify a magistrate judge's proposed findings and
recommendations. United States v. Raddatz, 447 U.S.
667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the
Court reviews any portion of the Report and Recommendation
that is the subject of a proper objection on a de
novo basis and any non-objected portion under a
"clearly erroneous" standard. "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." Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).
December 27, 2013, Movant pleaded guilty to three offenses
related to his involvement in a conspiracy where the
conspirators placed skimming devices on ATM machines to
capture banking customers' account information and PIN
numbers. The conspirators then re-encoded gift cards with the
account information and used those cards along with the
stolen PIN numbers to illegally withdraw cash from ATM
machines. This Court sentenced Movant to eighty-four months
of imprisonment, followed by three years of supervised
release. [Doc. 126]. The Eleventh Circuit affirmed
Movant's convictions and sentences. See United States
v. Atanasov, 589 Fed.Appx. 533 (11th Cir. 2015); [Doc.
§ 2255 motion, Movant raises two claims for relief: (1)
that his trial counsel provided ineffective assistance, and
(2) that he was placed in double jeopardy and his due process
rights were violated. [Doc 168 at 6-14, 21 -31 ]. In the
R&R, the Magistrate Judge recommends that the motion be
denied because Movant failed to establish that he is entitled
to relief. With respect to his claim that counsel was
ineffective by failing to object to the loss amount
attributed to him in calculating the sentence, the Magistrate
Judge pointed out that the evidence showed that Plaintiff
conspired to commit fraud in connection with more than 800
counterfeit ATM cards. Pursuant to the Sentencing Guidelines,
the loss per access device "shall be not less than
$500" U.S.S.G. § 2B1.1 cmt. n.3(F)(i) (2013).
Accordingly, this Court agrees that the proper loss amount
attributable to Movant was in the $400, 000 to 1 million
range that this Court calculated. Moreover, the 800
counterfeit ATM cards that were attributed to Movant were a
mere fraction of the 4700 cards produced by the broader
conspiracy, and due to Movant's involvement in that
conspiracy, this Court could have attributed a much higher
loss amount to him. Finally, in arriving at Movant's
sentence under the 18 U.S.C. § 3553 sentencing factors,
this Court felt (and still feels) that the 84-month sentence
imposed was appropriate. As noted at the sentencing hearing,
given the level of sophistication involved and the great
number of banking customers affected, Movant committed a very
serious crime, and it was important to impose a sentence that
would deter others from engaging in similar crimes. [Doc. 156
at 21, 23-24].
objections, Movant repeats that his involvement in the
conspiracy was limited, but as was discussed at the
sentencing hearing, his limited involvement was reflected in
the guidelines calculation. [Id. at 16].
next claims that his counsel was ineffective for allowing him
to plead guilty to aggravated identity theft and device fraud
because the two convictions punish him twice for the same
conduct in violation of his double jeopardy rights. This
Court concludes that the Magistrate Judge was correct in
noting that this claim is foreclosed by the Eleventh
Circuit's opinion in United States v. Bonilla,
579 F.3d 1233, 1242-44 (11th Cir. 2009), and Movant did not
mention this claim in his objections. This Court further
agrees with the Magistrate Judge's conclusion that
counsel was not ineffective for failing to raise the rule of
lenity at sentencing because the sentencing guidelines
applicable to Movant were not ambiguous. Movant also did not
mention this claim in his objections.
respect to the remainder of Movant's claims, this Court
agrees with the Magistrate Judge that the claims are
procedurally defaulted because Movant did not raise them in
his appeal. The claims are further subject to the valid
appeal waiver that Movant agreed to in his plea agreement.
Once again, Movant did not mention those claims in his
reasons discussed, this Court agrees with the Magistrate
Judge that Movant has failed to demonstrate that he is
entitled to relief. Accordingly, the R&R, [Doc. 187], is
hereby ADOPTED as the order of this Court, and Movant's
§ 2255 motion, [Doc. 168], is DENIED. The Clerk is
DIRECTED to close Civil Action Number 1:15-CV-4283-ODE.
Court further agrees with the Magistrate Judge that Movant
has failed to make a substantial showing of the denial of a
constitutional right, and a Certificate of ...