Gadsden v. United States of America (INMATE 3)

Filing 40

ORDER as follows: (1) Petitioner David Gadsden's objections are OVERRULED; (2) The 27 Recommendation is ADOPTED; (3) The 1 28 U.S.C. 2255 motion filed by Mr. Gadsden is DENIED; and (4) This action is DISMISSED with prejudice. A final judgment will be entered separately. Signed by Chief Judge William Keith Watkins on 9/14/2018. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DAVID GADSDEN,
Petitioner,
v.
UNITED STATES OF
AMERICA,
Respondent.

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CASE NO. 2:15-CV-933-WKW
[WO]

ORDER
Before the court are the Magistrate Judge’s Recommendation that Petitioner
David Gadsden’s 28 U.S.C. § 2255 motion be denied (Doc. # 27) and Mr. Gadsden’s
objection to the Recommendation (Doc. # 37).
On May 5, 2014, Petitioner David Gadsden pleaded guilty to conspiracy to
commit wire fraud, in violation of 18 U.S.C. § 1349. His offense involved opening
or causing others to open bank accounts with minimum deposits and using bad
checks from those accounts to purchase items from various businesses.

On

November 6, 2014, Mr. Gadsden was sentenced to 120 months in prison. (See Doc.
27, at 1.) Subsequently, Mr. Gadsden filed a motion pursuant to 28 U.S.C. § 2255.
He argued that his trial counsel rendered ineffective assistance of counsel because
(1) he failed to object to the district court’s loss-amount calculation on the ground it

was not supported by sufficient evidence, (2) he admitted that the loss amount was
“definitely above $400,000,” (3) he failed to object to the number of victims
attributed to Mr. Gadsden in determining his sentence, and (4) he did not request a
role reduction to Gadsden’s offense level based on his minimal or minor
participation in the offense. Mr. Gadsden also faulted his appellate counsel for
failure to raise issues (3) and (4) on appeal. (Doc. # 27, at 2.)
On March 29, 2018, the Magistrate Judge filed a Recommendation that Mr.
Gadsden’s 28 U.S.C. § 2255 motion be denied. (Doc. # 27.) The Recommendation
considered each of these claims and found that Mr. Gadsden failed to demonstrate
ineffective assistance of counsel. On June 7, 2018, after no timely objections were
filed and based upon an independent review of the record, the court adopted the
Recommendation, dismissed this action with prejudice, and entered final judgment.
(Docs. # 33, 34.) After the entry of final judgment, Mr. Gadsden asked for and
received an extension of time to file objections. Those objections have been filed
(Doc. # 37), and the Order and Final Judgment have been vacated to permit
consideration of the objections. Having independently reviewed the record and
conducted a de novo review of those portions of the Recommendation to which
objection is made, see 28 U.S.C. § 636(b)(1)(C), the court finds that the objections
lack merit for the following reasons.

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In his objections, Mr. Gadsden reargues his claim that his trial counsel
rendered ineffective assistance of counsel as pertains to the sentencing court’s lossamount calculation. Objecting to the sentencing court’s methodology to determine
that the loss amount was $1,000,000, Mr. Gadsden argues that it was speculative.
(Doc. # 37, at 8–40.)
Mr. Gadsden’s objection adds nothing new to the arguments already
considered and discussed in the Magistrate Judge’s Recommendation. As noted in
the Recommendation, the sentencing court could reasonably conclude that the
Government’s expert witness used a reasonable method to identify the nearly 200
individuals who passed worthless checks to identified businesses; that those
individuals participated in the conspiracy organized and directed by Mr. Gadsden
and his brother; and that the losses reported by the businesses were attributable to
Mr. Gadsden.
Mr. Gadsden neither demonstrates that the loss attributed to him was
improperly calculated nor identifies a plausible argument or any evidence that his
trial counsel should have presented that was reasonably likely to change the loss
determination.

He fails to show that the sentencing court’s methodology for

determining loss was unreasonable or based on speculation, or that the evidence
presented by the government through the expert was vague or unreliable. More
particularly, and as noted in the Recommendation, Mr. Gadsden identifies no
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plausible argument supporting a loss determination of $400,000 or less (the only
determination that could affect his sentence).
Mr. Gadsden also reargues his claim that his trial counsel rendered ineffective
assistance by failing to maintain an objection to the number of victims attributed to
him at sentencing and that his appellate counsel was ineffective for failing to assert
this issue on appeal. (Doc. # 37, at 40–44.)
The presentence investigation report (“PSI”) — and Government exhibits
admitted at sentencing — contained a spreadsheet listing the 120 known victims of
the bad-check scheme and the monetary amounts for the bad checks passed to each
victim. Of the listed victims, 116 were retail-type businesses, while 4 were checkprocessing companies used by some businesses and responsible for covering the
losses of those businesses that used them. Mr. Gadsden reasserts the argument he
made in his § 2255 motion that the check-processing companies covered the losses
of the businesses victimized by the bad-check scheme. However, other than in his
self-generated (and wholly self-serving) exhibits purporting to show that the
victimized businesses had their losses covered, Mr. Gadsden presents no evidence
that the 116 retail-type businesses that sustained losses from the bad checks passed
to them in the conspiracy were reimbursed, fully or partially, by the checkprocessing companies or any other third party.

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As noted in the Recommendation, the monetary amounts for the bad checks
passed to the 116 retail-type businesses listed on the spreadsheet in the PSI (and in
Government exhibits admitted at sentencing) were separate from the listed monetary
amounts that the check-processing companies paid out to the businesses whose
losses were covered by the check-processing companies. Further, and as also noted
in the Recommendation, the restitution ordered by the district court — $1,000,000
— was based on the actual losses of the 120 victims reflected in the PSI and in the
Government’s exhibits. It is obvious from the district court’s restitution order that
50 or more businesses/victims had not been reimbursed when Mr. Gadsden was
sentenced. Mr. Gadsden’s victim-reimbursement argument is meritless, and his
counsel was not ineffective for failing to present it.
For the foregoing reasons, it is ORDERED as follows:
(1)

Petitioner David Gadsden’s objections are OVERRULED;

(2)

The Recommendation (Doc. # 27) is ADOPTED;

(3)

The 28 U.S.C. § 2255 motion filed by Mr. Gadsden is DENIED; and

(4)

This action is DISMISSED with prejudice.

A final judgment will be entered separately.
DONE this 14th September, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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