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Estrich v. United States

United States District Court, W.D. North Carolina, Charlotte Division

July 16, 2018



          Max O. Cogburn Jr., United States District Judge

         THIS 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.

         I. BACKGROUND

         Petitioner 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).

         The 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 ¶ 116).

         Defense 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).

         At the 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 due.

(3:13-cr-160, Doc. No. 44 at 8).

         Counsel 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).

         The 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).

         Petitioner 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).

         Petitioner 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).


         A 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).

         The 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 ...

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