United States v. Cato

          ORDER

          WENDY BEETLESTONE, U.S. DISTRICT JUDGE

         AND NOW this 17^th 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:

         1. The, Report and Recommendation of Magistrate Judge Richard A. Lloret is APPROVED and ADOPTED;

         2. 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;

         3. No 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.

         JUDGMENT

         In accordance with the Court's separate Order, filed contemporaneously with this Judgment, on this 17^th day of October, 2019, JUDGMENT IS ENTERED

         DENYING AND DISMISSING WITH PREJUDICE Adolphus William Cato's Petition for Writ of Habeas Corpus.

         September 10, 2019

         REPORT AND RECOMMENDATION

          RICHARD A. LLORET, U.S. MAGISTRATE JUDGE

         Mr. 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.^[1] 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. 530.

         Mr. 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.

         FACTUAL AND PROCEDURAL HISTORY

         Mr. 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.

         Mr. 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.^[2] Doc. No. 604. The defendant then filed a pro se motion to vacate his twenty-four-month ...