Criminal No. 10-50022 Civil No. 11-5262
NOW on this 11th day of May 2012, comes on for consideration the Report and Recommendation of the Magistrate Judge (Doc. 58), and defendant's objections thereto (Doc. 61).
The Court has reviewed the Report and Recommendation, the plea agreement, the presentence investigation report, the transcript from the change of plea hearing (held on July 20, 2010) and the sentencing hearing (held on November 16, 2010), as well as other pleadings filed in the record in this case, from all of which the Court finds and orders as follows:
1. On July 20, 2010, the defendant pled guilty pursuant to a plea agreement to Count 2 of the indictment, which charged him with possession with intent to distribute methamphetamine. Pursuant to the plea agreement, defendant stipulated, among other things, that he should be held accountable for at least 150 grams but less than 500 grams of actual methamphetamine.
2. Defendant was sentenced by the undersigned on November 16, 2010, to 135 months imprisonment, five years supervised release, a $100 special assessment and a $15,000 fine. Defendant did not appeal his sentence.
3. On November 16, 2011, defendant filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. As grounds for his motion, the defendant asserts ineffective assistance of counsel.
4. Defendant's motion was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). On March 19, 2012, the Magistrate Judge filed his Report and Recommendation, which this Court has carefully reviewed.
5. On April 12, 2012, defendant filed his objections to the Magistrate Judge's Report and Recommendation. Defendant raises the following objections to the Magistrate Judge's findings:
* the Magistrate Judge failed to take into account the fact that his counsel did not properly apprise him of the law on certain legal theories or the consequence of his plea and the stipulations he made;
* the Magistrate Judge did not properly consider that he pled guilty "under the wrong understanding of the law" and that his attorney should have argued that his role in the offense was minor, among other things; and
* the Magistrate Judge failed to take into account that his attorney should have raised certain objections to the presentence investigation report.
6. The Court has considered defendant's objections and has reviewed the matter de novo. Based on the Court's de novo review of the matter, the Court finds that the Magistrate Judge's findings are sound in all respects and should be adopted in toto. The Court further finds that defendant's objections should be overruled.
IT IS THEREFORE ORDERED that defendant's objections are overruled.
IT IS FURTHER ORDERED that the Magistrate Judge's Report and
Recommendation is adopted in toto.
IT IS FURTHER ORDERED that, for the reasons stated in the Magistrate Judge's Report and Recommendation, the Motion to Vacate (Doc. 49) is hereby DENIED.
IT IS SO ORDERED.
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE