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Klatch v. United States

United States District Court, M.D. Florida, Tampa Division

November 15, 2019

ANTHONY J. KLATCH, II, Petitioner,



         BEFORE 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.


         In 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 As a result of this conduct, his supervised release was revoked for failure to disclose financial information, pay restitution, and answer truthfully questions from his supervising probation officer.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.[1]

         According 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).

         In January 2017, Klatch was charged for the 2014-15 fraudulent conduct in Tampa. (cr. Dkt. 1).[2] 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).

         In 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).

         Klatch 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).

         In 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).

         Klatch 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 counsel;
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 case.

(Id. at 22). He also brought additional claims in a motion to supplement, [3] 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).[4]


         In 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 merit.

         To 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).

         The 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)).

         Because 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)).[5] Any other ground for relief is without merit, and an evidentiary hearing is not required.[6]

         Consecutive Sentence

         Klatch 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.

         “The 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.

         Unlike 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.[7] 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.

         Counsel 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.[8]

         Finally, 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.

         Criminal History Score

         Klatch 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).[9] He cites no authority to support his contentions, which are without merit.

         As 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 earlier crimes”).

         Here, 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, without merit.

         Obstruction of Justice

         Klatch challenges his counsel's failure to discuss with him and object to the obstruction of justice adjustment. (Dkt. 3 at 27).[10] 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 27).[11]

         Further, 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 still ...

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