United States District Court, N.D. Georgia, Atlanta Division
MOTION TO VACATE 28 U.S.C. Â§ 2255
H. COHEN United States District Judge
Alfredo Capote was convicted in this Court of one count of
conspiracy to commit wire fraud in violation of 18 U.S.C.
§ 1349 pursuant to his guilty plea, and the Court
imposed a sentence of sixty-two months of incarceration to be
followed by three years of supervised release. J. in a
Criminal Case [Doc. 235]. He appealed, claiming that his
sentence was substantively unreasonable, and the Eleventh
Circuit granted the Government's motion to dismiss the
appeal based on the appeal waiver that Movant signed as a
part of his plea agreement. June 25, 2018, Order of the
Eleventh Circuit [Doc. 260].
now has filed a pro se 28 U.S.C. § 2255 motion
to vacate [Doc. 267] in which he raises the single ground for
relief that his trial counsel was ineffective fr failing to
object to (1) the loss amount attributed to Movant when this
Court calculated his sentence under the Sentencing
Guidelines, and (2) the two-level obstruction increase that
this Court imposed under the Guidelines. In her Report and
Recommendation ("R&R") [Doc. 268], United
States Magistrate Judge Catherine M. Salinas recommends that
Movant's § 2255 motion be denied under Rule 4 of the
Rules Govering Section 2255 Proceedings fr the United States
District Courts because it plainly appears that Movant is not
entitled to relief.
reviewing a Magistrate Judge's R&R, 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
identif those fndings 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)) (interal quotation marks
omitted). Absent objection, the district judge "may
accept, reject, or modif, in whole or in part, the fndings
and recommendations made by the magistrate judge," 28
U.S.C. § 636(b)(1), and "need only satisf itself
that there is no clear error on the face of the record"
in order to accept the recommendation. United States v.
Slav, 714 F.2d 1093, 1095 (11th Cir. 1983). In
accordance with 28 U.S.C. § 636(b)(1), the Court has
conducted a de novo review of those portions of the
R&R to which Movant objects and has reviewed the
remainder of the R&R fr plain error.
Judge Salinas states in her R&R, Movant testified during
his sentencing hearing that he understood the plea agreement
and that he did not dispute any term of the plea agreement.
R&R at 4. Pursuant to his plea agreement, Movant agreed
that the loss amount was between $550, 000 and $3, 500, 000
and that he would receive the two-level obstruction
enhancement. Id. at 5, 9. As a result, Magistrate
Judge Salinas concluded that any objection raised by
Movant's trial counsel would have been meritless.
point after he fled his § 2255 motion, Movant obtained
counsel who fled Movant's objections to the R&R [Doc.
272]. In these objections, Movant asserts that the Magistrate
Judge erred in filing to review the substance of his claims.
Movant contends that this Court miscalculated the loss amount
by basing its calculation entirely on the gains that he
received from the scheme, which purportedly is not proper
under U.S.S.G. § 2B 1.1. He further contends that, under
United States v. Hunter, 323 F.3d 1314 (11th Cir.
2003), this Court was required (but failed) to make
individualized findings concerning the scope of Movant's
criminal activity within the conspiracy.
Court agrees with Judge Salinas that these arguments are
foreclosed by the admissions that Movant made in the plea
agreement and during the plea hearing. See United States
v. Stephen, 440 Fed.Appx. 824, 830 (11th Cir. 2011)
("The district court did not err by sentencing [the
defendant] based on a loss amount that he had admitted and
had agreed was applicable."); United States v.
Martin, 441 Fed.Appx. 698, 701 (11th Cir. 2011)
(noting district court's determination that objections to
the calculation of loss and the number of victims were
foreclosed by his factual admissions in the plea agreement).
to the degree that Movant contends that his concessions in
the plea agreement were the result of his trial counsel's
bad advice, Movant has not perfected his claim. In raising a
claim that counsel was ineffective in advising his client in
relation to a plea agreement, the claimant "must show
that there is a reasonable probability that, but for
counsel's errors, he would ... have pleaded [not] guilty
and would ... have insisted on going to trial." Hill v.
Lockhart, 474 U.S. 52, 58 (1985). Nowhere in his
motion or his objections does Movant assert that, but for his
counsel's allegedly deficient performance, he would not
have pied guilty and would instead have insisted on going to
trial. Indeed, he never contests his guilt or suggests he did
not wish to plead guilty.
it is hereby ORDERED that Movant's objections to the
R&R [Doc. 272] are OVERRULED. After reviewing the
remainder of R&R for plain error, the Court ADOPTS the
R&R [Doc. 268] as the Opinion and Order of this Court. It
is further ORDERED that Movant's § 2255 motion [Doc.
267] is DENIED. The Clerk is DIRECTED to close Civil Action
Court further agrees with Judge Salinas that Movant has filed
to raise any claim of arguable merit, and a Certificate of
Appeal ability is DENIED pursuant to 28 U.S.C. §
This Court ultimately settled on
a loss amount of$1, 493, 477.90, which was calculated by the
probation officer based on the fnds that Movant received as
part of the scheme. Sentencing ...