United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. STIVERS, CHIEF JUDGE
matter is before the Court on Defendant's Objections (DN
153, 155, 156, 157, 158)to the Magistrate Judge's Findings
of Fact, Conclusions of Law, and Recommendation
(“R&R”) (DN 149) on Defendant's Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255 (DN 85). For the following reasons, the Court
OVERRULES the objections,
ADOPTS the R&R, and
DENIES Defendant's motion.
February 23, 2016, Defendant Devin Thauberger
(“Thauberger”) pleaded guilty to two counts of
health care fraud and four counts of obstruction of criminal
investigation. (R&R 2; Order 1, DN 61). Thauberger was
represented at the plea hearing by retained counsel, Michael
A. Valenti (“Valenti”). (Plea Hr'g Tr.
2:9-11, DN 80). At the hearing, Thauberger testified that he
grew up in Canada and was a resident, but not a citizen, of
the United States. (Hr'g Tr. 3:24-4:4). 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.
(Hr'g Tr. 4:25-5:8). 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
understood the plea agreement, which stated the following in
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.
(Plea Agreement ¶ 5, DN 59; Hr'g Tr. 11:25-12:21).
Thauberger signed the plea agreement, which additionally
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.” (Plea
to sentencing, U.S. Probation prepared a Presentence
Investigation Report (“PSR”). (R&R 3). 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 agreed to this amount. Per application of
the United States Sentencing Guidelines, this loss amount,
coupled with his health care fraud charges, increased
Thauberger's base offense level by ten. Valenti did not
object to this provision of the PSR, only objecting to other
provisions regarding Thauberger's financial condition.
Court sentenced Thauberger to 41 months' imprisonment by
judgment entered on June 13, 2016. (Sentencing Hr'g Tr.
13:18-25, DN 81). On June 5, 2017, Thauberger filed a motion
pursuant to 28 U.S.C. § 2255 seeking to vacate his
sentence on the basis of ineffective assistance of counsel.
(Mot. Vacate 5-7, DN 85). The Magistrate Judge recommended
denial of Thauberger's motion and of a certificate of
appealability. (R&R 22). Thauberger makes three
objections to this court: (1) his counsel rendered
ineffective assistance by not informing him of the severity
of the immigration consequences stemming from his guilty
plea; (2) counsel rendered ineffective assistance by failing
to object to the use of the $214, 672.11 figure in
calculating his base offense level; and (3) a certificate of
appealability should be granted.
STANDARD OF REVIEW
judge of the court shall make a de novo determination of
those portions of the [magistrate judge's] report or
specified proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject,
or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1).
Strickland v. Washington, 466 U.S. 668 (1984), to
succeed on an ineffective assistance of counsel claim, a
defendant must show (1) deficient performance, such that
counsel's representation fell below an objective standard
of reasonableness and (2) resulting prejudice, such that
there is reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. Id. at 687-88, 694.
Thauberger's counsel was not ineffective in informing
Thauberger of the immigration
consequences of his guilty plea.
instant case, Thauberger and Valenti testified at the hearing
before the magistrate judge. (R&R 5; Mot. Vacate Hr'g
Tr. 15:25, 78:15, DN 132). Valenti testified that he had
several conversations with Thauberger about the potential
effect of a plea agreement on Thauberger's immigration
status and that Thauberger expressed concern about that
issue. (R&R 8; Hr'g Tr. 81:4-6, DN 132). Valenti
inquired whether Thauberger had access to an immigration law
attorney. (Hr'g Tr. 81:8). Thauberger told Valenti that
an immigration attorney, Andrew Cumming, was assisting ...