United States v. Atkins

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 filed pro se by Kenneth W. Atkins (“Atkins”), an inmate confined at the Montgomery Federal Prison Camp in Montgomery, Alabama.

         The Motion was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case. The United States of America (hereinafter referred to as the “Government”) has responded to the Motion. ECF No. 210. The Court has considered the entire record, and this matter is ready for decision. For the reasons stated below, the Court recommends the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 200) be DENIED.

         1. Background:

         On November 19, 2014, Atkins was indicted on one count: Conspiracy to Commit Wire Fraud under 18 U.S.C. §§ 1349 & 1343. ECF No. 1. Count One provided as follows:

From on or about January 2011 through on or about March 2012, the exact dates being unknown to the Grand Jury, in the Western District of Arkansas and elsewhere, the Defendant, KENNETH ATKINS, and others, both known and unknown to the Grand Jury, knowingly and willfully combined, conspired, confederated, agreed to commit an offense against the United States in violation of Title 18, United States Code, Section 1343, namely, to knowingly and intentionally devise a scheme and artifice to defraud and to obtain money from Georgia Pacific by means of false and fraudulent pretenses, representations, and promises, as set forth above in paragraphs 1 through 9, all in violation of Title 18, United States Code, § 1349.

ECF No. 1 at 3.

         On December 16, 2014, Atkins was arraigned before the Honorable Barry A. Bryant on Count One. ECF No. 5. The Court appointed Bill McLean to represent Atkins. Id. Atkins entered a not guilty plea, and was released on bond. Id. On May 26, 2015, Atkins filed a Motion to Substitute Attorney. ECF No. 30. On May 28, 2015, this Motion was granted, and Atkins was allowed to proceed pro se with Bill McLean to be utilized as “standby counsel to assist in defense.” ECF No. 33.

         On June 3, 2015, a Superseding Indictment was entered against Atkins, and Atkins was charged on four counts (Counts One to Four). ECF No. 35. Count One provided as follows:

From on or about January 2011 through on about March 2012, the exact dates being unknown to the Grand Jury, in the Western District of Arkansas and elsewhere, the Defendant, KENNETH W. ATKINS aka “KEN ATKINS”, and others, both known and unknown to the Grand Jury, knowingly and willfully combined, conspired, confederated, agreed to commit an offense against the United States in violation of Title 18, United States Code, Section 1343, namely, to knowingly and intentionally devise a scheme and artifice to defraud and to obtain money from Georgia Pacific by means of false and fraudulent pretenses, representations, and promises, as set forth in paragraphs 1 through 9, all in violation of Title 18, United States Code, Section 1349.

         Count Two provided as follows:

On or about August 26, 2011, in the Western District of Arkansas, El Dorado Division and elsewhere, the Defendant, KENNETH W. ATKINS aka “KEN ATKINS”, knowingly engaged and attempted to engage in a monetary transaction through a financial institution, affecting interstate commence, in criminally derived property of a value greater than $10, 000.00 that was derived from a specified unlawful activity; that is wire fraud in violation of Title 18, United States Code, Section 1343, to wit: KENNETH W. ATKINS caused cashier's check #108803 in the amount of $9, 000.00 and cashier's check # 108804 in the amount of $4, 000.00 to be issued from First National Bank in Crossett, Arkansas, which purchased a $13, 000.00 tractor when said funds consisted of the proceeds of the specified unlawful activity of wire fraud; all in violation of Title 18, United States Code, Section 1957(a) and (d).

         Count Three provided as follows:

On or about January 3, 2012, in the Western District of Arkansas, El Dorado Division and elsewhere, the Defendant, KENNETH W. ATKINS aka “KEN ATKINS”, knowingly engaged and attempted to engage in a monetary transaction through a financial institution, affecting interstate commerce, in criminally derived property of a value greater than $10, 000.00 that was derived from a specified unlawful activity; that is wire fraud in violation of Title 18, United States Code, Section 1343, to wit: KENNETH W. ATKINS caused cashier's check #108803 in the amount of $9, 000.00 and cashier's check # 108804 in the amount of $4, 000.00 to be issued from First National Bank in Crossett, Arkansas, which purchased a $13, 000.00 tractor when said funds consisted of the proceeds of the specified unlawful activity of wire fraud; all in violation of Title 18, United States Code, Section 1957(a) and (d).

         Count Four provided as follows:

On or about January 30, 2013, in the Western District of Arkansas, El Dorado Division and elsewhere, the Defendant, KENNETH W. ATKINS aka “KEN ATKINS”, knowingly engaged and attempted to engage in a monetary transaction through a financial institution, affecting interstate commerce, in criminally derived property of a value greater than $10, 000.00 that was derived from a specified unlawful activity; that is wire fraud in violation of Title 18, United States Code, Section 1343, to wit: KENNETH W. ATKINS received a check in the amount of $24, 150.77 that was issued from Delta Trust in Little Rock, Arkansas as proceeds from the auction of a 2006 Case Super M Series II Loader Backhoe, Serial Number N6C410129, when said backhoe consisted of the proceeds of the specified unlawful activity of wire fraud; all in violation of Title 18, United States Code, Section 1957(a) and (d).

ECF No. 35 at 3-5.

         On June 5, 2015, Atkins was arraigned on Counts One to Four. ECF No. 44. Thereafter, from October 5, 2015 until October 13, 2015, Atkins was tried before a jury. ECF Nos. 100-105. As per the Court's prior Order (ECF No. 33), Atkins represented himself at the trial with Mr. Bill McLean appearing as stand-by counsel during the trial to assist Atkins. On October 14, 2015, Atkins was found guilty by the Jury as to all four Counts of the Superceding Indictment. ECF No. 108. Atkins was allowed to remain on pre-trial release following the verdict and pending sentencing. ECF Nos. 109-110.

         On January 8, 2016, Atkins filed a Motion to Appoint New Counsel. ECF No. 123. With this Motion, Atkins appeared to request appointment of counsel for appeal. Id. On January 11, 2016, the Court granted the Motion and appointed Mr. James M. Pratt, Jr. to represent Atkins. ECF No. 128. Despite having appointed counsel, and having been directed to cease direct communication with the Court, Atkins continued to file to various motions pro se. ECF Nos. 162-164.

         The final Pre-Sentence Report (PSR) was filed in this matter on December 16, 2016. The PSR found that Atkins had a total offense level of 24. ECF No. 170 ¶ 42. Further, the PSR determined Atkins had a criminal history category of II. ECF No. 170 ¶ 49. These scores resulted in a recommended guideline range of 57-71 months imprisonment, $10, 000-$100, 000 fine, and supervised release of not more than three (3) years.

         On December 21, 2016, the U.S. District Judge Susan O. Hickey sentenced Atkins to the following: 68 months imprisonment on each count to run concurrently; three (3) years supervised release with standard and special conditions on each count to run concurrently; $400.00 special assessment; no fine; and $456, 556.91 restitution. ECF No. 171. Judge Hickey had previously ordered forfeiture of $402, 668.92.

         On December 27, 2016, the Court granted Mr. James M. Pratt's Motion to withdraw as counsel. ECF No. 174.

         On January 4, 2017, Atkins filed a pro se notice of appeal. ECF No. 176. The United States Court of Appeals for the Eighth Circuit then appointed Mr. Pratt to represent Atkins on the pending appeal. ECF No. 179. The Eighth Circuit affirmed the Conviction and Sentence on February 1, 2018. ECF No. 197-1.

         On August 27, 2018, Atkins filed the instant pro se Motion pursuant to 28 U.S.C. § 2255. ECF No. 200. The Government was ordered to provide a response. ECF No. 201. On February 15, 2019, the Government ...