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United States v. Wright

United States District Court, E.D. Kentucky, Northern Division, Covington

January 15, 2019



          David L. Bunning United States District Judge.

         Proceeding pro se, Defendant Thelmo Leon Wright filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. # 78). Pursuant to the Court's local practice, the Motion was referred to Magistrate Judge Candace J. Smith for preparation of a Report and Recommendation (“R&R”). Accordingly, this matter is before the Court on Judge Smith's R&R, wherein she recommends that the Court deny Wright's Motion to Vacate. (Doc. # 89). Wright having filed timely Objections to the R&R (Doc. # 90), the R&R is now ripe for the Court's review. For the reasons that follow, Wright's Objections are overruled and the R&R is adopted as the opinion of the Court.


         Defendant Thelmo Leon Wright and two codefendants-Londell Davis, III, and Anthony Patrick Lashley-were charged in a one-count Indictment with participating in a conspiracy to present materially altered Postal Service Money Orders (PMOs) with the intent to defraud the United States Post Office, in violation of 18 U.S.C. § 371. (Doc. # 3). Specifically, the Indictment alleged that from approximately April 12, 2016, through September 6, 2016, Wright and his codefendants agreed to work together to purchase multiple PMOs for low-dollar amounts in New Jersey, alter them, and then attempt to cash them for $1, 000.00 each at various U.S. Post Offices in northern Kentucky. Id.

         Wright was charged with several overt acts in furtherance of the conspiracy, including renting a white Hyundai Sonata in Englewood, New Jersey, on August 29, 2016. Id. On September 6, 2016, Wright and his codefendants were apprehended in the white Sonata; when the defendants were searched, police found a wealth of incriminating evidence in the defendants' possession. Id. A fraudulent New Jersey driver's license in the name of M.G., multiple credit cards in the names of A.C., M.G., and A.W., and $4, 601.24 in cash, among other things, were found on Wright's person. Id. Similarly, six fraudulent, out-of-state driver's licenses, an American Express credit card in the name of M.G., and a Wells Fargo MasterCard in the name of J.W., among other things, were found on the person of Wright's codefendant, Londell Davis. Id.

         On February 2, 2017, Wright pleaded guilty to the single-count Indictment. (Docs. # 39 and 88-1). During the sentencing phase of the proceedings, Wright contested the application of an enhancement to his offense level for having a management role. (Docs. # 50, 56, and 75). Specifically, Wright objected to use of a statement by Nathaniel Taylor, an informant who was interviewed by Postal Inspectors on May 12, 2016, to support the role enhancement sought in the Presentence Investigation Report; Wright claimed that the statement was “hearsay regarding unindicted conduct.” (Doc. # 50 at 3).

         During the May 8, 2017 sentencing hearing before then-U.S. District Judge Amul Thapar, defense counsel had an opportunity to argue against application of the management-role enhancement before the presiding district judge; however, defense counsel acknowledged that Sixth Circuit case law was contrary to his argument regarding his hearsay objection. (Doc. # 75 at 4-5). Consistent with Sixth Circuit precedent, the Court held that the informant's hearsay statement was admissible for sentencing, as there was sufficient indicia of reliability, and further, that there was sufficient other evidence of Wright having a management role to enhance his offense level. Id. at 5-12. During the hearing, the Government also declined to move for the third point for acceptance of responsibility under the sentencing guidelines. Id. at 18.

         Counsel for the United States then voiced the Government's objection to a two-level reduction for acceptance of responsibility. Id. at 18. Noting the Government's objection, the Court noted that “[y]our record is preserved.” Id. Turning to defense counsel, the Court stated:

The Court: You agree, Mr. Smith, that her record is preserved on that, just like yours is on the leadership role, correct?
Mr. Smith: Agreed.
The Court: Okay, good. You all can fight it out in the Sixth Circuit. What's a good sentence?

Id. Noting that counsel for each side had preserved the parties' guidelines objections, the Court then went on to sentence Wright to a term of thirty-eight months of imprisonment- below the forty-six months sought by the United States. Id. at 28. Wright was then provided a written notice of his right to appeal and instructed to go over it with his attorney and let the Court know if he had any questions. Id. at 32. The written notice, signed by Wright, advised that a “Notice of Appeal must be filed in this court within fourteen (14) days from the date of entry of the Judgment.” (Doc. # 60). Judgment was entered on May 11, 2017, and Wright did not file a timely appeal. (Doc. # 62).

         Wright filed the subject Motion to Vacate under 28 U.S.C. § 2255 on October 23, 2017, alleging ineffective assistance of counsel for failure to file a notice of appeal “on the two preserved sentencing issues.” (Doc. # 80 at 4). Specifically, Wright argued that (1) he should not have been subjected to the management-role enhancement when the Government relied solely on hearsay statements from an informant; (2) he should have received an additional credit for acceptance of responsibility; and (3) counsel was ineffective for his failure to interview Wright's two codefendants, “which would have established that [he] was not the ‘leader' of this conspiracy and not subject to the ‘leadership' enhancement.” Id. at 4-5. The R&R rejected each of Wright's arguments. (Doc. # 89).

         II. ANALYSIS

         A. Legal Standards

         The Court reviews de novo those portions of the R&R to which specific objections have been filed. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Where no objections are made, or the objections are vague or conclusory, the Court is not required to review under any standard. Thomas v. Arn, 474 U.S. 140, 150 (1985); United States v. Jenkins, No. 6:12-cr-13-GFVT, 2017 WL 3431834, at *1 (E.D. Ky. Aug. 8, 2017). Allegations in pro se habeas complaints are held to a less stringent standard and are construed liberally, however ...

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