Mack v. United States of America

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 1 Motion (Complaint) to Vacate/Set Aside/Correct Sentence (2255) filed by Christopher Mack ; adopting Report and Recommendations re 18 Report and Recommendations; Denying Motion to Vacate Sentence; Court Does Not Issue a Certificate of Appealability; Closing Case. Signed by Judge Robert N. Scola, Jr. on 1/31/2020. See attached document for full details. (ls)

United States District Court
for the
Southern District of Florida
Christopher M. Mack, Petitioner,
v.
United States of America,
Respondent.

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Civil Action No. 17-23791-Civ-Scola
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Order Adopting Magistrate Judge’s Report And Recommendation
This case was referred to United States Magistrate Judge Lisette M. Reid,
consistent with Administrative Order 2019-02 of this Court, for a ruling on all
pre-trial, nondispositive matters and for a report and recommendation on any
dispositive matters. On November 27, 2019, Judge Reid issued a report,
recommending that Court deny the motion to vacate Petitioner Mack’s sentence
and dismiss the case. (Report of Magistrate, ECF No. 18.) The Petitioner filed
objections to the report. (ECF No. 20.)
The Petitioner’s objections to Judge Reid’s report address two specific
issues. First, the Petitioner argues that counsel’s performance was ineffective
because counsel failed to raise a discrepancy in the detective’s testimony. (ECF
No. 20 at 2.) The affidavits in support of the criminal complaint and arrest
warrant state that the Movant’s apartment was searched between 2:15 a.m.
and 2:45 a.m. (Id. at 15.) Detective Monros, however, stated in his deposition
that he did not obtain the search warrant until 4:00 a.m. (Id.) Judge Reid
concluded that this misstatement is insignificant and counsel was not
ineffective for failing to raise this non-meritorious issue. (Id. at 16.) Upon
review, the Court agrees. The Movant filed a motion to suppress the initial
sweep conducted of his apartment. The Court conducted an evidentiary
hearing and denied the motion to suppress, finding that the security sweep of
the apartment was proper. The Court also found that there was probable case
for both the arrest and the search warrant. (Id. at 6.) Whether the detective
obtained the warrant at 2 a.m. or 4 a.m. does not alter the Court’s finding of
probable cause. Moreover, counsel’s decision not to raise this issue does not
rise to the level of “so patently unreasonable that no competent attorney would
have chosen it.” Dingle v. Sec’y for Dep’t of Corr., 480 F.3d 1092, 1099 (11th
Cir. 2007).
The Petitioner also objects to counsel’s failure to object to the presentence report (PSI) because it erroneously stated that the offense involved

more than 10 victims. (ECF No. 18 at 18-19.) The Petitioner argues that his
guilty plea as to Count 4 involved only one victim. (Id.) Judge Reid concluded
that under Count 2, the Government charged the Petitioner with possession of
133 counterfeit credit cards, personal identifying information for 600
individuals, and social security numbers of approximately 1,000 individuals.
(Id. at 19.) Accordingly, there was more than sufficient evidence to support a
finding of ten or more victims. (Id.) The Court agrees. Moreover, the PSI, with
the inclusion of 10 victims, indicated an advisory sentencing guideline range of
37 to 46 months of imprisonment. (ECF No. 18 at 8.) The Petitioner agreed to
accept a sentence of 102 months because it was a global settlement of his state
court case and federal case. (Id. at 9.) The court, counsel, and the Petitioner all
acknowledged that this was above the guideline range because it was a global
settlement of his pending case. Accordingly, Petitioner cannot argue prejudice
regarding the number of victims when he agreed to an upward variance.
Accordingly, the Court affirms and adopts Judge Reid’s report and
recommendation (ECF No. 18). The Court denies the motion to vacate sentence
(ECF No. 1). The Court does not issue a certificate of appealability. Finally, the
Court directs the Clerk to close this case. Any pending motions are denied as
moot.
Done and ordered, at Miami, Florida, on January 31, 2020.
_______________________________
Robert N. Scola, Jr.
United States District Judge