GARCIA

v.

UNITED STATES

THIS CAUSE came before the Court upon pro se Movant Carlos J. Garcia’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (“Mot.”) (ECF No. 1). The Court referred the matter to the Honorable Lisette M. Reid, United States Magistrate Judge, who issued a Report and Recommendation recommending that the Motion be DENIED. (“R&R”) (ECF No. 11). Movant did not file objections and the time to do so has passed. The matter is now ripe for review. As set forth below, the Court ADOPTS the R&R. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

On August 28, 2018, Movant pled guilty to conspiring to commit health care fraud in violation of 18 U.S.C. § 1349. (CR-ECF Nos. 46, 47, 48).1 On November 6, 2018, Movant was sentenced to a total term of eighty-seven (87) months’ imprisonment, followed by three (3) years’

of $2,572,916.00. Id.

On October 7, 2019, Movant filed his Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No¹).

Therein, Movant asserted the following claims: (1) ineffective assistance of counsel because Movant’s lawyer advised him that the Plea Agreement held him accountable for $1,120,862.00, but he was “sentenced for $2,572,916.00”; and (2) Movant was prejudiced by his attorney not providing signed documents in Spanish. Id. at 4–5. As set forth in the R&R, Magistrate Judge Reid recommends that the Motion be denied on the merits. R&R at 11. Specifically, Magistrate Judge Reid finds that “Movant wholly fails to meet his burden of demonstrating deficient performance or prejudice under Strickland.” Id. at 10; Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).

Magistrate Judge Reid finds that Movant

“fails to plead any facts to suggest that but for counsel’s alleged misadvice, he would not have pled guilty and would have instead gone to trial.” Id. at 8. Magistrate Judge Reid finds that counsel’s advice to Movant to plead guilty under the terms of the Plea Agreement “was not patently unreasonable,” and “even if counsel’s performance could somehow be deemed deficient . . . any such deficiency was cured by the Court’s thorough plea colloquy.” Id. at 9. Magistrate Judge Reid finds that Movant is not entitled to an evidentiary hearing in this matter. Id. at 10.

Finally, Magistrate Judge Reid recommends that no certificate of appealability issue, because Movant cannot meet his burden to show that reasonable jurists could find the denial of his § 2255 motion debatable. Id. at 11. The Court agrees. UPON CONSIDERATION of the Motion, the R&R, the pertinent portions of the record,

and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Magistrate Judge Reid’s Report and Recommendation (ECF No. 11) is ADOPTED and Movant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 1) is DENIED. The Clerk of Court is instructed to CLOSE this case. All pending motions, if any, are DENIED AS MOOT. DONE AND ORDERED in Chambers at Miami, Florida, this 26th_ day of February, 2021.

é MICHAEL MOORE

CHIEF UNITED STATES DISTRICT JUDGE

c: All counsel of record Carlos J. Garcia 18773-104

D. Ray James

Correctional Institution Inmate Mail/Parcels Post Office Box 2000 Folkston, GA 31537

PRO SE