United States District Court, M.D. Florida, Tampa Division
ANTHONY J. KLATCH, II, Petitioner,
UNITED STATES OF AMERICA, Respondent.
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE
THE COURT are Petitioner Klatch's Amended Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence (Dkt. 3), Motion to Add Supplemental Arguments (Dkt.
18), and the United States' response (Dkt. 23). Upon
review, his § 2255 motion is DENIED.
2011, Klatch pleaded guilty to conspiracy, securities fraud,
wire fraud, and money laundering in the Southern District of
Alabama and was sentenced to 60 months in prison and 36
months of supervised release. (cr. Dkt. 13 at 20; cr. Dkt.
S-26 at 13). His supervised release was transferred to the
Middle District of Florida where, from December 2014 to
December 2015, he defrauded investors of more than $500, 000
through his company, Assurance Capital Management, LLC
(“ACM”). (cr. Dkt. 13 at 20-21, 24). As a result
of this conduct, his supervised release was revoked for
failure to disclose financial information, pay restitution,
and answer truthfully questions from his supervising
probation officer. (cr. Dkt. S-26 at 15; Dkt. 3 at 16). He
was sentenced to 9 months in prison, part of which was served
at a residential reentry center in Tampa, and 27 months of
supervised release. (cr. Dkt. S-26 at 15). This conduct also
formed the basis for his 2017 charge and conviction in the
underlying criminal case which is the subject of his §
2255 motion, 8:17-cr-135-T-27JSS.
to Klatch, while he was in the residential reentry center,
his fiancée, Lindsey Heim, became aware that the
Federal Bureau of Investigation “was planning to seek
an indictment against [him] for charges related to his
supervised release revocation.” (Dkt. 3 at 16; Dkt.
23-1 at 17). He fled from the residential reentry center to
the Southern District of Florida, where he was arrested for
using stolen credit card information and identity theft
unrelated to the ACM scheme. (cr. Dkt. S-35 at 4-7; Dkt. 3 at
17; Dkt. 23-1 at 18). In the Southern District of Florida, he
pleaded guilty and was sentenced to 39 months imprisonment.
(cr. Dkt. S-26 at 16).
January 2017, Klatch was charged for the 2014-15 fraudulent
conduct in Tampa. (cr. Dkt. 1). He pleaded guilty pursuant to a
plea agreement to one count of wire fraud. (cr. Dkts. 11, 13,
16). At the change of plea hearing, he testified he had been
diagnosed with various psychological disorders, but they did
not affect his ability to think clearly or to understand the
proceedings. (cr. Dkt 44 at 5-6). He acknowledged that he
had, with a few exceptions, waived his right to appeal,
discussed the waiver with counsel, had no questions, and gave
up his appellate rights freely and voluntarily. (Id.
at 24-25). And he accepted as true the factual basis
presented by the United States. (Id. at 29-35). The
court found that he was competent and the plea was knowing
and voluntary, accepted the guilty plea, and adjudicated him
guilty. (cr. Dkts. 20-22).
response to the initial presentence investigation report
(PSR), his defense counsel sent the probation officer several
written objections. (Dkt. 23-2 at 22-32). Counsel also filed
letters in support of mitigation. (cr. Dkt. 28). At
sentencing, counsel moved for a downward departure,
contending the PSR's calculation
“overrepresented” Klatch's criminal history.
(cr. Dkt. 45 at 4-12; Dkt. 31). Counsel also called Dr.
Valerie McClain, a psychologist, who conducted a forensic
psychological evaluation of Klatch, and diagnosed him with
psychological disorders. (cr. Dkt. 45 at 27-49).
faced a statutory maximum sentence of 20 years imprisonment.
(cr. Dkt. S-26 at 25). His offense level 24 and criminal
history category V resulted in a guidelines range of 92 to
115 months imprisonment. (Id.). He received a
two-level upward adjustment for obstruction of justice and a
reduction of three levels for acceptance of responsibility.
(cr. Dkt. 45 at 25-27). He was sentenced to 115 months
“consecutive to any outstanding sentence.” (cr.
Dkt. 45 at 64; cr. Dkt. 33).
imposing the consecutive sentence, the court acknowledged the
§ 3553(a) factors, including the need for a sentence
that reflects the seriousness of the offense, promotes
respect for the law, and protects the public from further
crime by the defendant. (Dkt. 45 at 61-62, 70). Although
counsel objected to the “substantive
reasonableness” of the sentence (cr. Dkt. 45 at 69-70),
Klatch did not file a direct appeal. (Dkt. 3 at 1).
filed a timely § 2255 motion. (Dkt. 1). In his amended
motion, he raised four grounds for relief. (Dkt. 3). Each
ground states that the “supporting facts” are
“extrapolated in attached exhibit A, paragraphs
1-78.” (Dkt. 3 at 4-6, 8). Notwithstanding, it is not
clear which paragraphs in the exhibit correspond to which
grounds. Construed liberally, the majority of Klatch's
claims are for ineffective assistance of counsel, which he
“sum[s] up” as follows:
A) Failing to make this court aware of the [Southern District
judge's] statements regarding [his] punishment and [his]
mental healthcare despite [him] formally demanding this of
B) Failing to make this court aware that [he] received a
variance for his mental healthcare just seven months prior
without ever leaving custody; C) Failing to prepare a
presentencing memoranda that formally requested variances for
[his] mental health care, for [his] time spent in state
custody, and for [his] level of cooperation;
D) Failing to object to this court ruling that this sentence
run consecutively, when such a ruling violates the Ex Post
Facto clause of the U.S. Constitution as well as violating
the recommendations of the U.S.S.G. Commission rules
regarding the sentencing of an individual for related crimes
via multiple charging instruments, as outlined in Chapter 5
of the guidelines; and
E) Failing to inform [him] that he would be subject to an
enhancement for “Obstruction to Justice” prior to
filing information in this case, as well as then, failing to
object to this guideline enhancement because, although [his]
actions were detrimental to his case, his actions lacked any
mens rea in order to obstruct justice, which is easily
provable by the fact that [he] willingly told on himself over
three months before any formal charges being filed in this
(Id. at 22). He also brought additional claims in a
motion to supplement,  arguing that (1) “counsel was
ineffective in challenging paragraphs '33-37' of the
final PSR . . . when counsel failed to argue that
[Klatch's] alleged obstructive conduct was not presented
by the [United States] in the ‘Facts' section of
[his] plea agreement”; and (2) “counsel was
ineffective in challenging paragraph ‘101' of the
PSR” because chapter 5 of the sentencing guidelines
states that when crimes are similar “the worst offense
should be used and all other offenses should run
concurrent.” (Dkt. 18 at 5).
summary, Klatch raises claims relating to his consecutive
sentence, his criminal history score, the obstruction of
justice adjustment, counsel's failure to submit a
sentencing memorandum, the reasonableness of his sentence,
vindictive and selective prosecution, counsel's failure
to mention at sentencing a variance for mental health he
received in the Southern District, and counsel's advice
not to appeal. Whether his claims are brought as ineffective
assistance of counsel claims or otherwise, they are without
establish ineffective assistance of counsel, Klatch must
demonstrate that (1) counsel's performance was
constitutionally deficient, and (2) he was prejudiced as a
result. Strickland v. Washington, 466 U.S. 668, 687
(1984). “Judicial scrutiny of counsel's performance
must be highly deferential. . . . A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time.” Id. at 689. And “a court
must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.”
Id. (citation and internal quotation marks omitted).
Strickland test also applies to challenges of guilty
pleas. See Scott v. United States, 325 Fed.Appx.
822, 824 (11th Cir. 2009). The Eleventh Circuit explains:
In this context, the first prong of Strickland
requires the defendant to show his plea was not voluntary
because he received advice from counsel that was not within
the range of competence demanded of attorneys in criminal
cases. The second prong focuses on whether counsel's
constitutionally ineffective performance affected the outcome
of the plea process, meaning the defendant must show a
reasonable probability that, but for counsel's errors, he
would have entered a different plea.
Id. at 824 (internal quotation marks and citations
omitted); see also Lafler v. Cooper, 566 U.S. 156
(2012). “[C]ounsel owes a lesser duty to a client who
pleads guilty than to one who decides to go to trial, ”
and “need only provide his client with an understanding
of the law in relation to the facts, so that the accused may
make an informed and conscious choice between accepting the
prosecution's offer and going to trial.”
Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th
Cir. 1984). Counsel must make an “independent
examination of the facts, circumstances, pleadings and laws
involved, [and] offer his informed opinion as to the best
course to be followed in protecting the interests of the
client.” Id. Collateral relief is only
available if a petitioner “prove[s] serious
derelictions on the part of counsel sufficient to show that
his plea was not, after all, a knowing and intelligent
act.” Lopez v. Reid, No. 214CV584FTM38MRM,
2017 WL 2869405, at *2 (M.D. Fla. July 5, 2017) (quoting
McMann v. Richardson, 397 U.S. 759, 774 (1970)).
Klatch cannot demonstrate that his counsel's performance
was constitutionally deficient or that he was prejudiced as a
result of any deficiency, his ineffective assistance of
counsel claims fail. Moreover, the grounds relating to his
sentence that are not brought as ineffective assistance
counsel claims are not cognizable in a § 2255
proceeding. See Marion v. United States, No.
16-15971-G, 2017 WL 8233896, at *7 (11th Cir. Oct. 24, 2017);
see also Spencer v. United States, 773 F.3d 1132,
1139 (11th Cir. 2014). And those claims are procedurally
defaulted because he did not raise them on direct appeal.
See McKay v. United States, 657 F.3d 1190, 1196
(11th Cir. 2011) (“Under the procedural default rule, a
defendant generally must advance an available challenge to a
criminal conviction or sentence on direct appeal or else the
defendant is barred from presenting that claim in a §
2255 proceeding.” (internal quotation marks and
citation omitted)). Any other ground for relief is without
merit, and an evidentiary hearing is not
raises several arguments relating to his consecutive
sentence. First, he argues a consecutive sentence was
improper because the Southern District court imposed its
sentence concurrent to any future sentence. (Dkt. 3 at 23).
While he acknowledges that a judge cannot “require
another judge to impose a concurrent rather than consecutive
sentence in the future, ” United States v.
Rivas, 649 Fed.Appx. 761, 762 (11th Cir. 2016), he
argues that application of Rivas, which was decided
after his 2014-15 criminal conduct in the Middle District,
would violate the ex post facto clause of the U.S.
Constitution. (Dkt. 3 at 23-25). Rivas, however,
merely confirmed that a judge cannot require another judge to
impose a concurrent rather than a consecutive sentence.
Applying Rivas to this case does not violate the ex
post facto clause.
Constitution forbids the passage of ex post facto
laws, a category that includes every law that changes the
punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed.” United
States v. Peugh, 569 U.S. 530, 532-33 (2013) (citations
and internal quotation marks omitted). An example is the
imposition of sentencing guidelines that did not exist at the
time of the offending conduct. Id.
the cases Klatch relies on, the time between his 2014-15
criminal conduct and his sentencing did not result in a
conviction for conduct that was previously lawful, or a
sentence under guidelines promulgated after his crimes were
committed. E.g., id.; see also Miller
v. Florida, 482 U.S. 423 (1987). As the United States
correctly points out, since Klatch had an undischarged term
of imprisonment, his sentence could be imposed concurrently,
partially concurrently, or consecutive to the undischarged
term to “achieve a reasonable punishment for the
instant offense.” (Dkt. 23 at 4); USSG
§5G1.3. Indeed, this Circuit recognizes that 18
U.S.C. § 3584(a) and the sentencing guidelines
“evince a preference for a consecutive sentence when
imprisonment terms are imposed at different times.”
United States v. Ballard, 6 F.3d 1502, 1506 (11th
Cir. 1993); United States v. Williams, 592 Fed.Appx.
828, 830 (11th Cir. 2014). Accordingly, Klatch's
contention that it was error to impose a consecutive sentence
is without merit.
was not ineffective in failing to raise a meritless argument,
and Klatch suffered no prejudice because the court was
authorized to impose a consecutive sentence, notwithstanding
any objection. See Street v. United States, 359
Fed.Appx. 109, 112 (11th Cir. 2009) (“Because there was
no legal basis for objecting to [the defendant's]
sentence, his counsel was not deficient for failing to do so
and his failure to do so did not prejudice [him].”).
Indeed, in his affidavit filed with the United States'
response to the § 2255 motion, counsel avers that he did
not object to the consecutive sentence because such an
objection would not be “supported by law.” (Dkt.
23-1 at 7). Notwithstanding, counsel did argue for a
concurrent sentence, pointing out that the “federal
judge in Miami ordered that his federal sentence run
concurrent with any future sentence he was to receive,
” which the court acknowledged. (cr. Dkt. 45 at 6, 21).
The PSR also noted the Southern District judge's ruling
as well as the possibility of a consecutive sentence. (cr.
Dkt. S-26 at 16, 25). Counsel's performance was not
deficient, considering these facts.
to the extent he raises these claims independent of an
ineffective assistance of counsel claim, his claims are
procedurally defaulted, not cognizable in a § 2255
motion, and, in any event, without merit.
contends that application of his sentencing guidelines
violated the ex post facto clause and Eighth Amendment,
reasoning that “a criminal history score is calculated
at the time of sentencing, and in most cases, due to the time
factor of criminality, this leads to a lower criminal history
score, ” and his intervening convictions resulted in an
increased criminal history score. (Dkt. 3 at 26; cr. Dkt.
S-26 at 15-17). Specifically, he argues that his criminal
conduct in the Middle District occurred in 2014-15 and
“had [he] been charged and convicted of that offense at
that time . . . [he] would have likely been sentenced in this
case with a Criminal History score of III instead of
V.” (Dkt. 3 at 26). He cites no authority to support his
contentions, which are without merit.
discussed, an “ex post facto law is a law that
punishes for conduct that was not criminal at the time it
occurred or that increases the punishment for an act after
the act is done.” United States v. Bucaro, 898
F.2d 368, 371 (3d Cir. 1990) (citations omitted). The court
in Bucaro, for example, held the sentencing
guidelines did not violate the ex post facto clause in
considering prior, juvenile convictions. As the court
explained, the defendant
is not now being punished for his juvenile conduct. The
sentence he received in federal district court was for his
involvement in a conspiracy to possess and distribute
[controlled substances]. These actions were criminal at the
time they were committed, and the guideline that took his
prior conduct into account was in effect when he committed
the criminal offenses for which the district court imposed
the sentence he now attacks. [The defendant] has not been
given a sentence greater than that prescribed by law in
effect at the time he committed these crimes. When [he]
committed the federal offenses for which he was sentenced,
the sentencing guidelines had already clearly provided that
prior adjudications of juvenile delinquency were a relevant
factor during sentencing. Thus, there is no basis to [his]
ex post facto argument.
Id., at 371; cf. Gryger v. Burke, 334 U.S.
728, 732 (1948) (fact that a conviction triggering habitual
offender statute occurred before the statute was effective
does not make statute invalidly retroactive, since the
sentence was a “stiffened penalty for the latest
crime” and not an “additional penalty for the
the challenged sentencing guidelines provision was in effect
when Klatch committed his crime. He points to no law that was
enacted after his conduct in Tampa that criminalized the
conduct or increased the punishment. Accordingly, there is no
ex post facto violation, and any related ineffective
assistance of counsel claim likewise fails. (Dkt. 3 at 26).
Counsel was not deficient for not raising a meritless
argument, and Klatch suffered no prejudice. To the extent he
raises these claims independent of an ineffective assistance
of counsel claim, they are procedurally defaulted, not
cognizable on a § 2255 motion, and, in any event,
challenges his counsel's failure to discuss with him and
object to the obstruction of justice adjustment. (Dkt. 3 at
27). Notwithstanding, the adjustment was
appropriate because, while in custody, Klatch directed Heim
to transfer proceeds from a brokerage account to her personal
account and tried to persuade her to no longer cooperate with
the government. (Id.; cr. Dkt. 23 at 13). Klatch
also challenges the factual basis of the adjustment,
contending that (1) he thought he would only face a violation
of his supervised release; (2) he directed Heim to move the
proceeds four months after sentencing in the prior case, at
which time he thought the funds were “cleared as
investment capital that could be utilized by Heim”; (3)
he did not intend to obstruct justice; and (4) he never
threatened Heim to no longer cooperate and, at the time, was
distraught and suffering from bipolar disorder. (Dkt. 3 at
the United States explains that the parties' agreement to
the adjustment was in exchange for the United States
supporting a three-level reduction for acceptance of
responsibility. (Dkt. 23 at 14). In his affidavit,
Klatch's counsel explains:
When Mr. Klatch's initial [PSR] was disclosed, Mr. Klatch
was being denied a three level reduction for acceptance of
responsibility, was being given a two level enhancement
because a victim suffered a “substantial financial
hardship, ” and was being given a two-level enhancement
for the authorized transfer or use of a means of
identification. . . .
After meeting with Mr. Klatch, undersigned counsel filed 11
pages of guideline objections. . . .
Part of defense counsel's success in prevailing on these
objections was an agreement that the obstruction of justice
enhancement was appropriate in exchange for an agreement that
notwithstanding this obstructive conduct, Mr. Klatch would