United States District Court, E.D. Oklahoma
A. WHITE UNITED STATES DISTRICT JUDGE
the court is Petitioner's motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside or correct sentence [Docket
No. 1]. Petitioner's motion is timely. On September 19,
2013, Petitioner pled guilty to count one of the Indictment,
charging him with conspiracy to commit wire fraud in
violation of 18 U.S.C. § 1349. On June 11, 2014,
Petitioner was sentenced to 63 months in the custody of the
United States Bureau of Prisons, followed by 3 years of
supervised release. Additionally, Petitioner was ordered to
pay a $100 assessment and $240, 682.27 in restitution. The
Judgment was entered on June 20, 2014.
filed an appeal, arguing that the court, in determining his
total offense level and the length of his sentence, erred in
calculating the loss amount associated with his conduct. He
also argued that the court erred in determining the
restitution he owed pursuant to the Mandatory Victims
Restitution Act, 18 U.S.C. § 3663A (“MVRA”).
On June 8, 2015, the United States Court of Appeals for the
Tenth Circuit issued its Decision, affirming the court's
calculation of loss associated with Petitioner's conduct,
but reversing the court's calculation of the amount of
restitution owed under the MVRA and remanding for
resentencing on that issue. Petitioner appealed the Tenth
Circuit's Decision. The Supreme Court of the United
States denied his petition for a writ of certiorari on
October 19, 2015.
was resentenced in this court on October 1, 2015. When the
court addressed the calculation of the amount of restitution
owed under the MVRA, counsel announced a stipulation had been
reached as to the loss amount. The court limited the
restitution to the agreed amount of $84, 734.84. The
remainder of Petitioner's sentenced remained the same.
now brings this § 2255 motion, alleging ineffective
assistance of counsel and reurging issues already decided on
appeal. Specifically, he argues that his sentence “is
too long” for the dollar amount for which he accepted
responsibility and should have been reduced at the
resentencing. He argues that his counsel “lie[d] to
[him] by stating [his] case was reopened only for the issue
of the restitution amount” and was ineffective for
failing to advocate for a recalculation of his custodial
sentence. In fact, the court's calculation of the loss
amount associated with his conduct was already addressed and
upheld on appeal. The action was remanded for recalculation
of the restitution amount only. Accordingly, Petitioner's
counsel was not ineffective for not advocating for a
recalculation of his custodial sentence on resentencing. The
motion is DENIED as to this argument.
Imposed on Resentencing
also argues that the stipulated restitution amount of
“$84, 000.00 was reached through mathematical equations
that are not supported on his admitted responsability (sic)
of being a driver only for another person in the alleged
conspiracy as it should be related only to the specific dates
where the Government readily accept (sic) Alisuretove was
involved.” As the Government argues, Petitioner's
guilty plea to count one of the Indictment serves as an
admission of the facts upon which restitution was imposed at
the resentencing hearing.
importantly, the proper avenue for challenging the
restitution amount imposed at resentencing was upon direct
appeal. “A defendant's failure to present an issue
on direct appeal bars him from raising the issue in his
§ 2255 motion, unless he can show cause excusing his
procedural default and actual prejudice resulting from the
errors of which he complains, or can show that a fundamental
miscarriage of justice will occur if his claim is not
addressed.” United States v. Cook, 997 F.2d
1312, 1320 (10th Cir. 1993). Petitioner has not alleged
ineffective assistance of counsel for failure to appeal the
restitution amount imposed at resentencing or otherwise shown
cause for his failure to appeal. He also has not shown that a
fundamental miscarriage of justice will occur if his claim is
not addressed. Accordingly, his motion is DENIED as to this
further argues that his counsel was ineffective on appeal for
not pursuing or for abandoning the issue of a mitigating role
reduction. In order to prevail on his claims of ineffective
assistance of counsel, Petitioner must satisfy the two-prong
test set out in Strickland v. Washington, 466 U.S.
668 (1984). Under this test, Petitioner must show both that
his counsel's performance was deficient and that the
deficiency prejudiced his defense. Id. at 687. In
other words, he must first show that his counsel's
“representation fell below an objective standard of
reasonableness.” Id. at 688.
Judicial scrutiny of counsel's performance must be highly
deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court,
examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable.
Id. at 689.
reviewing court must make every effort “to evaluate the
conduct from counsel's perspective at the time.”
Id. Moreover, a defendant “must overcome the
presumption that, under the circumstances, the challenged
action ‘might be considered sound trial
strategy.'” Id. (citation omitted).
“There are countless ways to provide effective
assistance in any given ...