United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr., United States District Judge
MATTER is before the Court on Petitioner's
Amended Motion to Vacate, Set Aside or Correct Sentence under
28 U.S.C. § 2255, (Doc. No. 4), the Government's
Response, (Doc. No. 6), and Petitioner's pro se
Letter, (Doc. No. 7), that is construed in part as a Reply.
was indicted for conspiring with Joye Strong in a health care
fraud conspiracy with: Count (1), health care fraud
conspiracy; Counts (2)-(5), health care fraud; Counts
(6)-(9), false statements relating to health care matters;
Counts (10)-(17), aggravated identity theft; Count (18),
money laundering; and Count (19), false statements.
(3:13-cr-160, Doc. No. 1). A jury found him guilty of all
counts. (Id., Doc. No. 23).
Presentence Investigation Report (“PSR”)
calculated the total offense level for Counts (1)-(9), (18),
and (19) as 24. This resulted from using the conspiracy base
offense level of six and adding 14 levels for a reasonably
foreseeable loss amount between $400, 000 and $1, 000, 000,
two levels for abusing a position of trust, and two levels
for obstruction of justice. (Id., Doc. No. 26 at
¶¶ 74, 76, 77, 78). Petitioner had zero criminal
history points and a criminal history category of I.
(Id., Doc. No. 26 at ¶ 94). The advisory
guideline range for those Counts was 51 to 63 months'
imprisonment, plus a mandatory consecutive sentence of not
less than two years each for the aggravated identity theft
convictions, Counts (10)-(17). (Id., Doc. No. 26 at
counsel filed written Objections to the PSR arguing,
inter alia, that enhancements for obstruction of
justice and abusing a position of trust should be removed.
(Id., Doc. No. 27).
sentencing hearing, Petitioner admitted that he had read the
PSR, looked at it, was familiar with it, and filled part of
it out. (3:13-cr-160, Doc. No. 44 at 2-3). He said he
“didn't go over it with” counsel but
“went over it by email.” (3:13-cr-160, Doc. No.
44 at 3). Counsel clarified that:
I was never ready or willing or able to meet Mr. Estrich. He
just did not keep all the appointments we had. He said he had
a lot of ill family members and he couldn't meet with me
when he said he would come and meet with me and he
wouldn't meet with me. And actually, he got the
presentence report through email on the same day it was
filed. And I reminded him when the objections were
(3:13-cr-160, Doc. No. 44 at 8).
asked Petitioner for his objections, which he emailed to her.
(3:13-cr-160, Doc. No. 44 at 3). However, the only objection
she received was Petitioner was his denial that he was
“working with this lady and her companies, ”
(3:13-cr-160, Doc. No. 44 at 9), which counsel determined
would not impact the sentence, so she filed objections that
she felt were appropriate. (3:13-cr-160, Doc. No. 44 at 6).
Petitioner acknowledged that he understood what counsel said
about his objections having no effect on the guidelines.
(3:13-cr-160, Doc. No. 44 at 7).
Court overruled Petitioner's PSR objections and imposed a
below-guideline sentence of 63 months' imprisonment,
comprised of 39 months on each of Counts (1)-(9), (18) and
(19), concurrent, and 24 months on each of Counts (10)-(17),
concurrent with each other but consecutive to Counts (1)-(9),
(18), and (19). (Id., Doc. No. 36).
argued on direct appeal that the Government committed plain
error by vouching for the credibility of a cooperating
co-conspirator during closing argument. The Fourth Circuit
Court of Appeals affirmed. United States v. Estrich,
624 Fed.Appx. 99 (4th Cir. 2015).
filed the original § 2255 Motion to Vacate in the
instant case on August 29, 2016, arguing that counsel was
ineffective during trial preparation, at trial, and at
sentencing. (Doc. No. 1). On May 1, 2017, he filed the
Amended § 2255 Motion to Vacate which re-alleges the
ineffective assistance claims and adds a claim of
prosecutorial misconduct. (Doc. No. 4).
SECTION 2255 STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a).
Sixth Amendment to the U.S. Constitution guarantees that in
all criminal prosecutions, the accused has the right to the
assistance of counsel for his defense. See U.S.
Const. Amend. VI. To show ineffective assistance of counsel,
Petitioner must first establish deficient performance by
counsel and, second, that the deficient performance
prejudiced him. See Strickland v. Washington, 466
U.S. 668, 687-88 (1984). The deficiency prong turns on
whether “counsel's representation fell below an
objective standard of reasonableness ... under prevailing
professional norms.” Id. at 688. A reviewing
court “must apply a ‘strong presumption' that
counsel's representation was within the ‘wide
range' of reasonable professional assistance.”
Harrington v. Richter, 562 U.S. 86, 104 (2011)
(quoting Strickland, 466 U.S. at 689). The
Strickland standard is difficult to satisfy in that
the “Sixth Amendment guarantees reasonable competence,
not perfect advocacy judged with the benefit of
hindsight.” See Yarborough v. Gentry, 540 U.S.
1, 8 (2003). The prejudice prong addresses whether
counsel's deficiency affected the judgment. See
Strickland, 466 U.S. at 691. A petitioner must
demonstrate “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. In
considering the prejudice prong of the analysis, a court
cannot grant relief solely because the outcome would have
been different absent counsel's deficient performance,
but rather, it “can only grant relief under . . .
Strickland if the ‘result of the proceeding
was fundamentally unfair or unreliable.'”
Sexton v. French, 163 F.3d 874, 882 (4t ...