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United States v. Thornton

United States District Court, E.D. Kentucky, Central Division, Lexington

October 28, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RICHARD THORNTON, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, Chief Judge

         Defendant/Movant Richard Thornton pleaded guilty to conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349. He was sentenced to a term of imprisonment of 136 months and was ordered to pay restitution in the amount of $373, 784.98. [Record No. 402] Thornton has now filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Record No. 516] Thornton asserts that his counsel was ineffective because he failed to: (i) investigate and inform him about sentencing enhancements; (ii) object to the recovery of text messages from his girlfriend's cell phone; (iii) challenge the warrant and affidavit allowing the police to obtain his GPS location; (iv) challenge the warrant to seize and extract data from his computer; and (v) request that the Court make an individualized finding regarding the loss amount sentencing enhancement. According to Thornton, his counsel's failure to explain the loss amount resulted in an ill-informed decision to plead guilty.

         Thornton's motion was referred to United States Magistrate Judge Edward B. Atkins for review and issuance of a report pursuant to 28 U.S.C. § 636(b)(1)(B). Thereafter, Magistrate Judge Atkins recommended that Thornton's § 2255 motion be denied. [Record No. 527] Thornton filed untimely objections to the recommended disposition in which he merely reiterated the arguments made in his original motion.

         The Court reviews de novo those portions of a magistrate judge's recommendation to which timely objections are made, 28 U.S.C. § 636(b)(1)(C). Thomas v. Arn, 474 U.S. 140, 150 (1985). But “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Id. The Court has reviewed the record, the recommended disposition, and Thornton's untimely objections de novo and concluded that Thornton's motion should be denied.

         I.

         Thornton and his co-conspirators were involved in a far-reaching bank fraud conspiracy between March 2014 and February 2015. Thornton stole checks from businesses' mailboxes, used the stolen checks to create fake business checks, and recruited homeless individuals to cash the checks.

         Thornton pleaded guilty to conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349. [Record No. 314] During the plea colloquy, the undersigned confirmed that Thornton had received a copy of the superseding indictment and discussed it specifically --and the case generally -- with his attorney. [Record No. 455');">455');">455');">455');">455');">455');">455');">455, p. 8] Thornton also affirmed that he was satisfied with his attorney's advice. [Id.] Further, the Court reviewed the statutory maximum penalty during the change-of-plea hearing. [Record No. 455');">455');">455');">455');">455');">455');">455');">455, p. 17]

         Thornton's written plea agreement included three recommended enhancements to his base offense level: (i) a 16-level increase based upon the amount of loss under United States Sentencing Guidelines (“U.S.S.G.”) § 2B1.1(b)(1)(I), (ii) a 2-level increase because the offense involved more than 10 victims under U.S.S.G. § 2B1.1(b)(2)(A)(i); and (iii) a 2-level increase because the offense involved the use of “sophisticated means” as that term is defined by U.S.S.G. § 2B1.1(b)(10)(C). [Record No. 396, p. 5] The Court also explained the impact of potential sentencing enhancements on Thornton's non-binding guideline range. Specifically, the undersigned discussed the loss enhancement and explained that a separate hearing would be held to determine the amount of loss. [Record No. 455');">455');">455');">455');">455');">455');">455');">455, p. 20-22] Thornton indicated that he did not have any questions about the guidelines or how they would apply to him.

         The Presentence Report (“PSR”) recommended additional enhancements which were not included in the non-binding plea agreement. Thornton's counsel objected to the enhancement for “production or trafficking of any unauthorized access device or counterfeit access device” and to the “means of identification enhancement.” His counsel was successful in objecting to the production or trafficking an unauthorized access device and the United States Probation Office withdrew that enhancement prior to the sentencing hearing. However, Thornton's objection to the mean of identification enhancement was overruled.

         Thornton was sentenced to a within-guidelines range sentence of 136 months, to be followed by a 5-year term of supervised release. [Record No. 402] He also was ordered to pay $373, 784.98 in restitution. [Id.] Thornton appealed his sentence, asserting that the Court erred in calculating his advisory guideline range by applying a two-level enhancement for using a “means of identification.” [Record No. 499] However, the United States Court of Appeals for the Sixth Circuit upheld this Court's judgment and sentence.

         Thornton contends in his § 2255 motion that his attorney provided ineffective assistance. More specifically, he asserts that his counsel failed to: (i) investigate and explain the sentencing enhancements; (ii) object to the recovery of text messages from his girlfriend's cell phone; (iii) challenge the warrant and affidavit allowing the police to obtain his GPS location; (iv) challenge the warrant to seize and extract data from his computer and the VersaCheck program; and (v) ask the Court to make an individualized finding regarding the loss amount sentencing enhancement.

         Magistrate Judge Atkins directed Thornton to acknowledge whether he waived his attorney-client privilege regarding his claims of ineffective assistance of counsel. [Record No. 518] Thornton declined to acknowledge waiving this privilege while also declining to abandon any of his claims outlined in his § 2255 petition. [Record No. 520] Magistrate Judge Atkins subsequent order explained that Thornton had implicitly waived attorney-client privilege by refusing to abandon claims that placed privileged communications at issue. [Record No. 521]

         Magistrate Judge Atkins has recommended that the undersigned deny Thornton's § 2255 petition. [Record No. 527] At the outset, he concluded that Thornton's claims are largely “conclusory[, ] perfunctory” and insufficient to overcome the presumption of effective assistance of counsel. As noted above, Thornton submitted untimely objections to Magistrate Judge ...


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