Gross v. USA

Filing 66

ORDER: The Court concludes that Gross's Objections should be and hereby are OVERRULED; The Court Accepts and Adopts the U.S. Magistrate Judges recommendations and DENIES 62 Gross's Motion to Vacate. The request for a Certificate of Appealability is denied. (Ordered by Judge Mark Pittman on 1/28/2020) (dsr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ROBERT HADLEY GROSS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

§
§
§
§
§
§
§
§
§

Civil Action No. 6:16-cv-00071-P

ORDER
The United States Magistrate Judge issued findings and conclusions and
recommended denying Robert Hadley Gross’s Motion to Vacate, Set Aside or Correct
Sentence. See FCRs, ECF No. 62. Before the Court is Gross’s Objections to the
abovementioned findings, conclusions and recommendations (ECF No. 62), filed
December 26, 2019. Having considered the FCRs, briefing, and applicable law, the Court
concludes that Gross’s Objections should be and hereby are OVERRULED. The Court
accepts the U.S. Magistrate Judge’s recommendations and DENIES Gross’s Motion to
Vacate.
BACKGROUND
On October 15, 2014, Gross was charged by indictment with multiple counts of the
felony offense of Health Care Fraud in violation of 8 U.S.C. § 1347. See United States v.
Robert Hadley Gross, No. 6:14-CR-38. Criminal Case ECF No. 1. On October 16, 2014,
an initial appearance was held before United States Magistrate Judge E. Scott Frost, and
Gross was represented at said hearing by retained counsel, Mr. John Young, Esq. See id.,

ECF No. 5. On October 27, 2014, Gross was arraigned before United States Magistrate
Judge Nancy M. Koenig, while he was still represented by Mr. Young. See id. ECF No. 10.
On October 28, 2014, Mr. Young filed a Motion to Withdraw as Attorney prior to the
hearing on the Government’s motion to detain. See id. ECF No. 14. Mr. Young’s motion
cited Gross’s inability to afford retained counsel after seizure of his assets. Id. The motion
to withdraw as attorney was granted (ECF No. 15), and on the same date Judge Koenig
appointed the Federal Public Defender’s Office (“FPD”) to represent Gross. Ms. Sherylynn
A. Kime-Goodwin, Esq. filed her notice of appearance that same day. See id. ECF Nos. 16,
18. Thus, Gross was represented by retained counsel in this matter solely for his initial
appearance and arraignment.
On November 10, 2014, the FPD filed a Motion to Declare Complex Litigation
based on the difficulty and expansiveness of the case, which was granted by United States
District Judge Sam Cummings. See id. ECF Nos. 29, 31. On August 4, 2015, Gross filed a
motion to recuse Judge Cummings after his rejection of the Plea Agreement, which was
later granted based on possible interference with plea negotiations during the Judge’s
rejection of the Plea Agreement. See ECF Nos. 81, 83–84. The case was reassigned to the
Amarillo Division and to United States Senior District Judge Mary Lou Robinson.
On September 23, 2015, a Plea Agreement and Factual Resume was filed, and a rearraignment hearing was held. See ECF Nos. 85–86. Judge Robinson accepted the Plea
Agreement and Factual Resume which did not include a waiver of Gross’s appellate rights
agreement. See ECF No. 89. Pursuant to the written Plea Agreement, Gross acknowledged
the maximum penalties the Court could impose, stated he understood the Court would
2

impose the sentence after consideration of the United States Sentencing Guidelines, and
that the guidelines were not binding on the Court. See ECF No. 119. Gross also
acknowledged he had reviewed the guidelines with counsel but understood no one could
predict with certainty the outcome of the Court’s consideration of the guidelines in his case,
acknowledged he would not be allowed to withdraw his plea if his sentence was higher
than expected, and that he fully understood the actual sentence imposed was solely in the
discretion of the Court. Id. Gross averred not only that there had been no guarantees or
promises from anyone as to what sentence the Court would impose, but also that he had
thoroughly reviewed all legal and factual aspects of his case with his lawyer and was fully
satisfied with his attorney’s legal representation. Id.
On December 16, 2015, Gross was convicted of a single count (number 11) of
Health Care Fraud and sentenced to a term of 71 months of incarceration in the Bureau of
Prisons with a three-year term of supervised release to follow. See ECF No. 98–99.
Pursuant to the Plea Agreement, the Government moved to dismiss counts 1–10 and counts
12–52 of the Indictment. Id. Gross was also ordered to pay $1,832,869.21 in restitution and
allowed to use forfeited and seized funds to pay the restitution. Id. An additional $100,000
fine was imposed. Id. Property seized pursuant to pre-trial forfeiture notices was ordered
forfeited as part of the Final Order of Forfeiture issued on March 23, 2016, and the
Amended Final Order of Forfeiture issued June 1, 2016. See ECF Nos. 110, 113. Money
from a T. Rowe Price Account Number XXXXXXX569-8 was eventually returned as part
of the negotiated terms of the guilty plea. At the sentencing hearing, the District Judge
advised Gross of his appeal rights. See ECF No. 98, 120. The court entered Judgment that
3

same date. See ECF No. 99. Gross did not appeal his conviction and sentence to the United
States Court of Appeals for the Fifth Circuit.
On December 19, 2016, Gross filed his original motion to vacate his sentence in the
instant action styled Robert Hadley Gross v. United States and numbered 6:16-CV-071.
See ECF No. 1. Gross contends that he wished to appeal his sentence, but that his defense
counsel was constitutionally ineffective for failing to recognize and advise Gross of a
nonfrivolous basis for appeal. On May 9, 2017, the Government filed its original response
in opposition to Gross’s motion. See ECF No. 14. Gross filed a reply to the Government’s
response. See ECF No. 25. Mr. Brandon Sample, Esq. entered his appearance on behalf of
Gross and the Court allowed Gross to file an Amended Motion to Vacate, the instant
Motion, and allowed further briefing from the parties. See ECF Nos. 37–38. The
Government filed its second response on August 27, 2018. See ECF No. 44. Gross filed a
reply on September 17, 2018. See ECF No. 46.
On February 27, 2019, Magistrate Judge Lee Ann Reno issued her findings,
conclusions and recommendations. See ECF No. 57. On July 20, 2019, Senior Judge
Sidney A. Fitzwater adopted in part and re-referred in part Judge Reno’s findings,
conclusions, and recommendations. See ECF No. 59. On December 12, 2019, Judge Reno
issued her supplemental findings, conclusions and recommendations. See ECF No 62. On
December 26, 2019, Gross filed a number of objections to Judge Reno’s findings,
conclusions, and recommendations. See ECF No. 63. The FCRs and Gross’s objections are
now ripe for review.

4

ANALYSIS
A.

First Objection
Gross’s first objection is that Magistrate Judge Reno used the wrong test in

determining that his appeal was frivolous. See Def.’s Objections (“Objections”) at 5. The
main issue that the Court must resolve is whether Gross’s defense counsel was
constitutionally ineffective for failing to recognize and advise Gross of a nonfrivolous basis
for appeal. “Strickland v. Washington [, 466 U.S. 668 (1984)] provides the proper
framework for evaluating a claim that counsel was constitutionally ineffective for failing
to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470 (2000). Under Strickland, a
defendant must show first that counsel’s representation “fell below an objective standard
of reasonableness,” and second that counsel’s deficient performance prejudiced the
defendant. 466 U.S. at 669. Furthermore, “[a] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. In
addition, the Court in Strickland stated that “[i]t is all too tempting for a defendant to
second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy
for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that
a particular act or omission of counsel was unreasonable.” Id.
Instead of following the standard laid out in Strickland, Gross proposes that the
Court determine whether his counsel scoured the record in search of any nonfrivolous issue
to appeal and then advised him of said appeal. See Objections at 5. This proposed test
directly contravenes the standards established in Strickland. Gross goes as far to state that
he was denied effective assistance of counsel because his counsel failed to raise a possible
5

extension of precedent in the context of a fine. Id, at 7. If this standard were to be upheld,
then every defense counsel in very case would have a constitutional duty to raise possible
extensions of precedent. That is an untenable position. Furthermore, the Fifth Circuit has
established that counsel is only required to raise “[s]olid, meritorious arguments based on
directly controlling precedent should be discovered and brought to the court’s attention.”
United States v. Williamson, 183 F.3d 458, 463 (5th Cir. 1999).
Gross fails to demonstrate in his objections that his counsel failed to meet the
standards of effective counsel with regards to raising appeals elucidated by the Fifth Circuit
and the Supreme Court of the United States. Therefore, the Court OVERRULES Gross’s
first objection.
B.

Second Objection
Gross next objects to Magistrate Judge Reno’s application of the plain-error

standard of review in evaluating whether his objections were frivolous. See Objections at
6. Gross cites to a case in the First Circuit where that court held that failure to request plainerror review by the government waives the ability of the court to use said standard. United
States v. Encarnacion-Ruiz, 787 F.3d 581, 584 (1st Cir. 2015). While that might be the law
in the First Circuit, the Fifth Circuit—the circuit in which this Court sits—has held that an
appellate court may invoke the plain-error standard “sua sponte because no party has the
power to control the [appellate court’s] standard of review.” United States v. Duhon, 541
F.3d 391, 394 (5th Cir. 2008) (internal quotations omitted). Therefore, if Gross were to
have raised his objections on appeal, his arguments would have been subject to plain-error

6

review because he failed to object to the fine on any ground. See Puckett v. United States,
556 U.S. 129, 135 (2009). As a result, the Court OVERRULES Gross’s second objection.
C.

Third Objection
Gross next objects to Judge Reno’s conclusion that he could not, on plain-error

review, mount a substantive reasonableness challenge to the $100,000 fine. See Objections
at 8. Gross first argues that a substantive reasonableness challenge to the fine should not
be subject to plain-error review. In support of this argument, Gross states that “while the
Fifth Circuit requires a specific substantive unreasonableness objection to avoid plain-error
review on appeal, it is the only circuit to do so.” See Objections at 9. As Fifth Circuit
precedent is binding on this Court, the Court is disinclined to ignore it.
Gross then argues that “it would not be frivolous to argue that the $100,000 fine was
substantively unreasonable” given his lengthy prison sentence, $1.8 million restitution
order, and the waiver of interest on the fine. See Objections at 12. While these facts are
true, Gross fails to consider other factors that make his argument frivolous, such as the fact
that his carefully crafted and complex plea agreement specifically contemplated that the
Court might impose a fine and actually designated a portion of the $500,000-plus dollars
earmarked for return toward satisfying any such fine. See Criminal Case, ECF No. 86.
Moreover, on the face of his plea agreement, Gross was financially able to pay the fine,
and the fine itself was well below the statutory maximum and well within the Court’s broad
sentencing discretion. See United States v. Pacheco-Alvarado, 782 F.3d 213, 220-21
(5th Cir. 2015). Gross argues that dozens of other defendants have appealed similar fine,
but he also admits that “the Fifth Circuit denied relief in each of these cases.” See
7

Objections at 13. The Court believes that the failure of dozens of similar appeals
demonstrates that Gross’s counsel met the threshold of effective service even though she
did not raise this appeal with her client. Therefore, the Court OVERRULES Gross’s third
objection.
D.

Fourth Objection
Gross objects to Judge Reno’s conclusion that a rational defendant would not want

to appeal because “Gross pled guilty and received the sentence he bargained for.” See
Objections at 13. While it is true that Gross did not agree to pay a specific-dollar amount
for a fine, he did plead guilty with the full understanding that the district judge retained the
discretion to impose a fine up to $250,000, and he did make a specific agreement in his
plea agreement to pay any such fine with designated funds. See Criminal Case ECF No.
86. Gross received everything he bargained for, including a plea agreement, which the
government characterized as so favorable that the prior district judge had refused to accept
it. On these facts, Judge Reno correctly concluded that a reasonable defendant would not
have wanted to appeal and therefore Gross’s counsel met the threshold of effective service
even though she did not raise this possible appeal with her client. Therefore, the Court
OVERRULES Gross’s fourth objection.
E.

Certificate of Appealability
Lastly, Gross requests that if the Court adopts the Magistrate Judge’s conclusions

and recommendations it should also issue a certificate of appealability. Having considered
this request, it is hereby DENIED.

8

CONCLUSION
Following the Court’s review of the FCRs, record, and objections, the Court finds
that the FCRs are correct. Accordingly, Gross’s Objections are hereby OVERRULED.
Judge Reno’s recommendations are hereby ADOPTED and this action is DISMISSED
WITH PREJUDICE.
SO ORDERED on this 28th day of January, 2020.

Mark T. Pittman
UNITED STATES DISTRICT JUDGE

9