United States District Court, W.D. Arkansas, El Dorado Division
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. ยง 2255. ECF No. 200. The
Government was ordered to provide a response. ECF No. 201. On
February 15, 2019, the Government ...