United States District Court, E.D. Pennsylvania
BEETLESTONE, U.S. DISTRICT JUDGE
NOW this 17th day of October, 2019, upon
careful and independent consideration of Adolphus William
Cato's petition for writ of habeas corpus (Doc. No. 627),
the United States' response in opposition (Doc. No. 632),
Cato's reply (Doc. No. 635), and the Report and
Recommendation of U.S. Magistrate Judge Richard A. Lloret, it
is ORDERED that:
Report and Recommendation of Magistrate Judge Richard A.
Lloret is APPROVED and
Cato's Petition for Writ of Habeas Corpus is
DENIED and DISMISSED with
prejudice by separate Judgment, filed contemporaneously with
this Order. See Federal Rule of Civil Procedure
58(a); Rules Governing Section 2255 Cases in the United
States District Courts, Rule 12;
certificate of appealability shall issue under 28 U.S.C.
§ 2253(c)(1)(B) because "the applicant has [not]
made a substantial showing of the denial of a constitutional
right[, J" under 28 U.S.C. § 2253(c)(2), since he
has not demonstrated that "reasonable jurists"
would find my "assessment of the constitutional claims
debatable or wrong." Slack v. McDaniel, 529
U.S. 473, 484 (2000); see United States v. Cepero,
224 F.3d 256, 262-63 (3d Cir.2000), abrogated on other
grounds by Gonzalez v. Thaler, 565 U.S. 134 (2012); and,
4. The Clerk of Court shall mark this file closed.
accordance with the Court's separate Order, filed
contemporaneously with this Judgment, on this 17th
day of October, 2019, JUDGMENT IS ENTERED
AND DISMISSING WITH PREJUDICE Adolphus William
Cato's Petition for Writ of Habeas Corpus.
RICHARD A. LLORET, U.S. MAGISTRATE JUDGE
Cato (also referred to as the "defendant") has
filed a motion under 28 U.S.C. § 2255 to vacate his
conviction for aggravated identity theft. See Doc.
No. 627. He entered a plea of guilty to the
charge on August 25, 2015. See Doc. No. 396 (change
of plea hearing transcript). After a colloquy under oath, the
court accepted his guilty plea, and later sentenced Mr. Cato
to eighty months incarceration and five years supervised
release, along with an order of restitution of $149, 907.64
and a special assessment of $700.00. See Doc. No.
Cato claims that he did not understand that the government
had to prove he knowingly used a real person's
identifying information to convict him of aggravated identity
theft, and that his attorney did not tell him about this
requirement. Mr. Cato claims he would not have pleaded guilty
if he had known this, and that his attorney's failure to
inform him was a violation of his Sixth Amendment right to
counsel. Mr. Cato also argues that the Government failed to
demonstrate, at his guilty plea hearing, that he knew the
personal identifying information he used to commit bank fraud
belonged to a real person.
AND PROCEDURAL HISTORY
Cato was charged with conspiracy to commit bank fraud, in
violation of 18 U.S.C. § 371; seven counts of bank
fraud, in violation of 18 U.S.C. § 1344; two counts of
aggravated identity theft, in violation of 18 U.S.C. §
lo28A(a)(i); and three counts of the use of a counterfeit and
unauthorized access device, in violation of 18 U.S.C. §
1029(a)(2). Doc. No. 95. Mr. Cato and his eight
co-conspirators stole personal identification information and
used this information to get bank loans, from which money was
then taken, and cash fraudulent checks. Id. On
August 25, 2015, the defendant pleaded guilty to conspiracy
to commit bank fraud, in violation of 18 U.S.C. § 371
(Count 1); five counts of bank fraud, in violation of 18
U.S.C. § 1344 (Counts 3, 4, 6, 7, and 8); and one count
of aggravated identity theft, in violation of 18 U.S.C.
§ lo28A(a)(i) (Count 9). Doc. Nos. 316, 396. On June 21,
2016, Judge Wendy Beetlestone sentenced Mr. Cato to fifty-six
months' imprisonment on the conspiracy and bank fraud
counts, to be served concurrently, followed by a mandatory,
consecutive twenty-four-month term of incarceration for the
aggravated identity theft count. The court also imposed five
years of supervised release, a $149, 907.64 restitution
obligation, and a special assessment of $700. Doc. No. 539.
Cato appealed his sentence. Doc. No. 534. In his appeal, he
argued that the trial court erred in determining the amount
of intended fraud loss for purposes of calculating his
advisory sentencing guidelines range. United States v.
Cato,718 Fed.Appx. 123 (3d Cir. 2017) [hereinafter
Cato I]. The court of appeals rejected Mr.
Cato's argument and affirmed his conviction and
sentence. Doc. No. 604. The defendant then filed
a pro se motion to vacate his twenty-four-month