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Thauberger v. United States

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

November 4, 2019




         This matter is before the Court on Defendant's Objections (DN 153, 155, 156, 157, 158)[1]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.

         I. BACKGROUND

         On 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 relevant part:

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 Agreement 14).

         Prior 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.

         The 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.


         “A 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).


         Under 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.

         A. Thauberger's counsel was not ineffective in informing Thauberger of the immigration consequences of his guilty plea.

         In the 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 ...

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