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Thauberger v. United States

United States District Court, W.D. Kentucky, Louisville Division

September 4, 2019

DEVIN THAUBERGER, Movant/Defendant.
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff,

          REPORT AND RECOMMENDATION

          Colin H. Lindsay, United States District Court Magistrate Judge

         This matter is before the Court on a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (“§ 2255 Motion”) filed by Movant/Defendant Devin Thauberger (“Thauberger”). (DN 85.) This matter is referred to the undersigned for findings of fact and recommendations on any dispositive matter. (DNs 87, 120.) The United States filed a response in opposition. (DN 90.) On September 29, 2017, the Court entered an Order stating that it would hold an evidentiary hearing and appointing counsel to represent Thauberger pursuant to 18 U.S.C. § 3006A and Rule 8(c) of the Rules Governing § 2255 Cases. (DN 95.) Thauberger filed a pro se Motion to Supplement (DN 91) and his counsel filed a Motion to Amend the § 2255 Motion (DN 105), which the Court granted by separate order. (DN 148.) In compliance with the Court's April 19, 2018 Order (DN 111), prior to the evidentiary hearing, Thauberger's counsel filed a brief in support of Thauberger's § 2255 Motion (DN 112), to which the United States filed a response (DN 119.) The undersigned conducted an evidentiary hearing on December 11, 2018. (DN 130.) In compliance with the post-hearing order, both Thauberger and the United States filed post-hearing briefs. (DNs 135, 136.) Therefore, this matter is ripe for review.

         For the reasons set forth below, the undersigned RECOMMENDS that Thauberger's § 2255 Motion (DN 85), as modified by subsequent filings, be DENIED.

         I. FINDINGS OF FACT

         A. Factual and Procedural Background

         On February 23, 2016, Thauberger pleaded guilty to two counts of health care fraud, four counts of obstruction of criminal investigation, and one count of tampering with a witness pursuant to a plea agreement. (DN 61, at PageID # 321; DN 59, at PageID # 306; DN 41.) Thauberger was represented at the change of plea hearing by retained counsel, Michael A. Valenti (“Valenti”). (DN 80, at PageID # 440.) At the hearing, Thauberger testified that he grew up in Canada and was a resident, but not a citizen, of the United States. (DN 80, at PageID # 441-42.) He likewise stated that he had had a sufficient amount of time to talk with Valenti about his case and his guilty plea and that he was satisfied with the advice that Valenti had given him so far. (Id. at 442-43.) While the Court did not specifically inquire as to whether Thauberger had been advised of any immigration consequences of his plea during the plea colloquy, Thauberger testified that he had read and the understood the plea agreement. (Id. at 449-50.) Paragraph 5 of the plea agreement provided as follows:

5. Defendant recognizes that pleading guilty may have consequences with respect to his immigration status if he is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, which may include the offense to which Defendant is pleading guilty. Because removal and other immigration consequences are handled in separate proceedings, Defendant understands that no one, including his attorney or the U.S. District Court, can predict with certainty how his conviction may affect his immigration status. Defendant agrees to plead guilty with a full understanding that this guilty plea may lead to adverse immigration consequences, including possible automatic removal from the United States.

(DN 59, at PageID # 308-09.) The plea agreement further provided in Paragraph 11 that “at the time of sentencing, the United States “w[ould] . . . [s]tipulate and agree that the amount of loss involved in this case is $214, 672.11 which is to be paid by the date of sentencing.” (Id. at 312.) At the end of the plea agreement, the same provided, “I have read this Agreement and carefully reviewed every part of it with my attorney. I fully understand it and I voluntarily agree to it.” (Id. at 318-19.) Defendant signed the plea agreement under that statement.[1] (Id.)

         Prior to sentencing, U.S. Probation prepared a Presentence Investigation Report (“PSR”). The final PSR provided that the total amount of the loss to be used for guideline calculation purposes was $214, 672.11 and that the Parties had agreed to this amount. (DN 72, at PageID # 390.) In calculating the base offense level for Thauberger's health care fraud and obstruction of justice charges, his base offense level was increased by ten levels because the loss exceeded $150, 000 but was less than $250, 000. (Id. at 392.) Valenti did not object to this provision of the PSR. He only objected to other provisions of the PSR regarding Thauberger's financial condition. (DN 72-1, at PageID # 401-02.)

         At Thauberger's sentencing, Valenti affirmed that both he and Thauberger had been provided with a copy of the PSR and that they had reviewed the same. (DN 81, at PageID # 479.) Valenti then stated that his only objection to the PSR was regarding its representation of Thauberger's financial condition. (Id.) The District Judge sentenced Thauberger to forty one months imprisonment, and a judgment reflecting this sentence was entered on June 13, 2016. (Id. at 490; DN 77.)

         On June 5, 2017, Thauberger filed a § 2255 Motion requesting that the Court vacate his sentence for various reasons including that his trial counsel had never informed him that he would be deported and that errors in the PSR regarding the intended loss negatively impacted the sentence he received. (DN 85, at PageID # 524-25; DN 85-1, at PageID # 573.) On August 18, 2017, the United States filed a response to which it attached an Affidavit from Thauberger's trial counsel, Valenti. (DNs 90, 90-2.) Valenti's Affidavit provided in relevant part:

16. Prior to entry of the guilty plea, I met with Devin Thauberger. We discussed the Plea Agreement, including Paragraph 5, which indicated that by pleading guilty, there may be removal or other immigration consequences as a result of this plea.

(DN 90-2, at PageID # 593.) After reviewing Thauberger's Motion (DN 85) and the United States's response (DN 90), the Court concluded that Thauberger was entitled to an evidentiary hearing and appointed counsel to represent him (DN 95).[2]

         Prior to the evidentiary hearing, Thauberger's counsel submitted a brief in support of Thauberger's § 2255 Motion to which he attached a declaration from Valenti. (DNs 112, 112-2.)

         In pertinent part, Valenti's Declaration provided as follows:

6. Prior to and during plea negotiations, Dr. Thauberger asked me if a guilty plea would influence his immigration status;
7. I explained to him that the charges were serious and that it could be problematic;
8. However, I did not give [Thauberger] any specific advice concerning his immigration status, as I was not retained to provide legal services to Dr. Thauberger on immigration law matters;
9. I encouraged Dr. Thauberger to consult an immigration law attorney on all matters relating to his immigration status;
10. Dr. Thauberger requested that I have contact with an immigration attorney that he had used in the past;
11. In my contact with the immigration attorney, I was informed that: the charges were serious and that they could have an effect on Dr. Thauberger's immigration status. I passed this information on to Dr. Thauberger;
12. Again, I never gave Dr. Thauberger any specific advice concerning his immigration status.

(DN 112-2, at PageID # 674-75.) The United States also filed a response to Thauberger's brief. (DN 119.) The undersigned then conducted an evidentiary hearing on December 11, 2018. (DNs 130, 132.)

         B. Findings of Fact from Evidentiary Hearing

         At the December 11, 2018 evidentiary hearing, the undersigned heard testimony from Thauberger and Valenti.[3]

         1. ...


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