Viator v. United States of America

Filing 26

ORDER adopting 22 Report and Recommendations re 1 Motion to Vacate, Set Aside, or Correct Sentence. Movant's Objections 25 are OVERRULED, a Certificate of Appealability is DENIED, and the case is CLOSED. Signed by Judge James I. Cohn on 7/26/2013. (npd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-61687-CIV-COHN/WHITE
(Case No. 11-60257-CR-COHN)
RICHARD VIATOR,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
___________________________________/
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND DISMISSING CASE
THIS CAUSE is before the Court upon the Report and Recommendation [DE 22]
(“Report”) of Magistrate Judge Patrick A. White to Movant Richard Viator’s Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [DE 1] (“Motion”).
The Court has conducted a de novo review of the Report and has carefully considered
the Motion, Movant’s Objections to Report and Recommendation [DE 25]
(“Objections”), the record in the case and is otherwise fully advised in the premises.
On December 28, 2011, Movant Richard Viator plead guilty to possessing with
the intent to distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(a). Plea Agreement [CR DE1 78]. The plea agreement included a
waiver of Movant’s appellate/collateral attack rights. Id. ¶ 15. During the change of
plea proceedings, the Court went over the Plea Agreement with Movant, including the
appellate/collateral attack rights waiver and Movant stated that he understood the

1

“CR DE” refers to the docket in case no. 11-60257-CR-COHN.

waiver and had fully discussed it with his attorney. Change of Plea Transcript [CR DE
126] at 9-10. On February 10, 2012, Movant was arrested in Louisiana for passing five
counterfeit twenty dollar bills. As a result of this arrest, at sentencing, the probation
officer did not recommend that Movant receive a reduction for acceptance of
responsibility. The Government also stated that, due to the arrest, it would not be filing
a 5K or Rule 35 motion on Movant’s behalf and recommended a sentence at the high
end of the guidelines. The Court sentenced Movant to 151 months. Judgment [CR DE
118].
In the Report, Judge White recommends that the Motion be denied because
Movant’s claims are procedurally barred. Report at 15. According to Judge White, the
claims Movant raises regarding the lawfulness of his sentence were not raised on direct
appeal and thus, are procedurally barred. Id. at 16. Judge White also found that
Movant’s claims for ineffective assistance of counsel during sentencing have been
rejected by the Eleventh Circuit in similar cases, where as here, a valid appellate waiver
has been entered. Id. at 16-17 (citing Williams v. United States, 396 F.3d 1340, 1342
(11th Cir. 2005)). The Report also discusses how each of Movant’s claims fail on the
merits.
In his Objections, Movant argues that the Government breached the plea
agreement by refusing to file a 5K motion, refusing to give him a reduction for
acceptance of responsibility, and using his alleged obstruction of justice as a basis to
deny him a reduction for acceptance of responsibility. Objections at 1-2. He also
asserts that he is entitled to a reduction for acceptance of responsibility, he is entitled to

2

a reduction pursuant to Dorsey v. United States, and he was denied due process when
the Court refused to hear from ATF agents regarding his substantial assistance. Id.
Upon review, the Court finds that Movant’s Objections are without merit. As Judge
White discusses extensively in the report, Movant knowingly and voluntarily waived his
right to appeal/collaterally attack his sentence. Thus Movant may not collaterally attack
alleged errors that occurred at sentencing. See Burke v. United States, 152 F.3d 1329
(11th Cir. 1998). Moreover, given that Movant did not raise any of these issues on
direct appeal, and has failed to demonstrate any cause for not doing so, he is
procedurally barred from asserting them in the instant Motion. See Bousley v. United
States, 523 U.S. 614, 622-23 (1998).
Despite Movant’s claims to the contrary, there is also no evidence that the
Government breached the Plea Agreement. Instead, the record reflects that Movant,
despite the seriousness of the crime with which he was charged, was permitted out on
bond to facilitate his cooperation with the DEA. Transcript of Sentencing Hearing [DE
8-1] at 3-4. Because of his cooperation, the Government declined to file a § 851
enhancement which would have resulted in a twenty-year mandatory minimum
sentencing. Id. at 4. The Government also stated that Movant was informed that if he
committed any crime while out on bond, he would not receive credit for his assistance.
Id. at 4. The Plea Agreement specifically states that the Government will not be
required to seek a sentence reduction for acceptance of responsibility if Movant
commits any misconduct. Plea Agreement ¶ 7. Moreover, the Plea Agreement is clear

3

that the Government is not required to file a motion for reduction of sentence based on
substantial assistance nor is the Court required to grant such motion. Id. ¶¶ 9-10.
Thus, the record before the Court simply does not support that the Government
breached the plea agreement in any way. Instead, as aptly stated by Judge White:
“Viator did not receive the benefit of acceptance of responsibility not due to any breach
by the government, but due to his subsequent unlawful behavior. Viator has no one to
blame, but himself.” Report at 24. Moreover, because the Government elected not to
file a motion for sentence reduction based on Movant’s substantial assistance, it was
not a violation of Movant’s due process rights for the Court to refuse to hear testimony
from the DEA agents. See Objections at 4; Plea Agreement ¶ 9 (“nothing in this
agreement requires this Office to file any such motions, and that this Office's
assessment of the quality and significance of the defendant's cooperation shall be
binding as it relates to the appropriateness of this Office's filing or non-filing of a motion
to reduce sentence.”). Accordingly, the Court will adopt the Report and overrule
Movant’s Objections.
Therefore, it is ORDERED AND ADJUDGED as follows:
1.

The Magistrate Judge’s Report and Recommendation [DE 22] is hereby
ADOPTED;

2.

The Motion to Vacate, Set Aside, or Correct Sentence [DE 1] is hereby DENIED;

3.

Movant’s Objections [DE 25] are OVERRULED;

4.

The Clerk may CLOSE this case and DENY all pending motions as MOOT; and

4

5.

Pursuant to Rule 11 of the Rules Governing Section 2255 Cases, Movant is
hereby DENIED a certificate of appealabilty because Movant has failed to make
a substantial showing that he was denied a constitutional right. The Court notes
that pursuant to Rule 22(b)(1) of the Federal Rules of Appellate Procedure,
Movant may request issuance of a certificate of appealability from the Eleventh
Circuit.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,

Florida, this 26th day of July, 2013.

Copies provided to counsel of record and pro se parties via CM/ECF

5