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Patel v. United States

United States District Court, N.D. Georgia, Atlanta Division

January 4, 2019

DIPAKKUMAR S. PATEL, BOP Reg. # 52328-424, Movant,
v.
UNITED STATES, Respondent.

         MOTION TO VACATE 28 U.S.C. § 2255

          MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          J. Clay Fuller J. Clay Fuller United States Magistrate Judge

         Movant, Dipakkumar S. Patel, has filed a 28 U.S.C. § 2255 motion to vacate his sentence. (Doc. 20). IT IS RECOMMENDED that the motion be DENIED.

         I. Background

In 2013, law enforcement began to investigate a massive telephone impersonation scheme in which U.S. citizens and foreign nationals living throughout the United States were being scammed. Typically, victims reported being contacted by persons claiming to be government officials . . . . The victims were told that they had an outstanding order of deportation or tax debt and [were] threatened with immediate arrest and/or deportation from the United States unless they agreed to pay the scammers large sums of money. . . .
A network of runners in the U.S. - many of whom operated in regional crews - were paid to purchase [prepaid debit] cards and transmit their unique card numbers to India-based conspirators who registered the cards and loaded them with victim funds. The U.S. runners then liquidated scam funds from the [debit] cards through the purchase of money orders and deposited those funds into various bank accounts.

(Doc. 29 (Gov't Resp.) at 1-3). On May 3, 2017, Movant was indicted in 1:17-cr-158 for passport fraud; on August 17, the government filed a criminal information in 1:17-cr-277, charging Movant with participating as a runner in a conspiracy to launder the funds obtained as described above (see Doc. 1); on that same day, Movant pleaded guilty in both cases; and on February 14, 2018, he was sentenced jointly in the two cases to 51 months' imprisonment. (Gov't Resp. at 3, 6).

[After] plea discussions, [which began on or about June 21, 2017, Movant] agreed to waive indictment in the fraud and money laundering conspiracy case and plead guilty pursuant to a criminal information that charged one count of general conspiracy in violation of 18 U.S.C. § 371, in case number 1:17-cr-277-ELR; and to the indictment's sole charge of passport fraud in violation of 18 U.S.C. § 1543, in case number 1:17-cr-158-ELR. By resolving his liability to the money laundering conspiracy in the Northern District of Georgia through a pre-indictment plea, he escaped indictment in the related case brought in the Southern District of Texas.

(Id. at 3-4 (citing Doc. 3-1 (Guilty Plea and Plea Agreement))).

[Movant] reached several additional agreements with the government in his written plea agreement. First, the parties agreed that the applicable guideline under the United States Sentencing Guidelines (U.S.S.G.) for calculating [Movant's] advisory guidelines range for the conspiracy charge was § 2S1.1; and that the proper loss/value of laundered funds amount attributable to [Movant] was between $1.5 and $3.5 million, resulting in a 16-level increase of [Movant's] offense level [under § 2B1.1(b)(1)(I)]. (Doc. 3-1 ¶ 12.) Second, the government agreed to recommend a three-level downward adjustment for acceptance of responsibility under § 3E1.1. (Id. ¶ 13.) Third, the government agreed to recommend that [Movant] be sentenced at the low end of his adjusted guideline range. (Id. ¶ 19.) Fourth, the parties agreed to recommend that [Movant] receive an additional one-level downward variance at sentencing predicated on his expeditious guilty plea. (Id. ¶ 20.) Finally, the plea agreement [stated] that if [Movant's] cooperation was determined by the government to qualify as substantial assistance, the government would file a motion for downward departure [under] U.S.S.G. § 5K1.1, or [under] Federal Rule of Criminal Procedure 35(b) if after sentencing. (Id. ¶ 18.)

(Id. at 4-5; see Plea Agreement ¶ 18 (“[T]he Defendant understands that the determination as to whether Defendant has provided ‘substantial assistance' rests solely with the Government. Good faith efforts by the Defendant that do not substantially assist in the investigation or prosecution of another person who has committed a crime will not result in either a motion for downward departure or a Rule 35 motion.”)). In sentencing Movant to concurrent 51-month terms of imprisonment, “the Court granted the requested one-level downward variance for [Movant's] expeditious guilty plea and imposed a sentence at the low-end of the advisory guidelines range.” (Gov't Resp. at 6).

         Movant's plea agreement also includes a Limited Waiver of his right to file an appeal or a § 2255 motion, except that─other than in circumstances that do not apply here─he may raise claims of ineffective assistance of counsel in a § 2255 motion, as he has now done. (Id. at 5; see Plea Agreement ¶ 31). Movant raises 13 such claims, set forth in detail below. (See Doc. 20-1 (Movant's Mem. of Law) at 8-10).

         II. Standard of Review

         A federal prisoner may file a motion to vacate his sentence “upon the ground that the sentence was imposed in violation of the Constitution or 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.” 28 U.S.C. § 2255(a). But it is well-settled that “to obtain collateral relief, a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982).

         III. Movant's Grounds For Relief: Ineffective Assistance Of Counsel

         The Supreme Court set forth the standard for evaluating claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984); see Dell v. United States, 710 F.3d 1267, 1272 (11th Cir. 2013) (applying Strickland standard of review to ineffective-assistance-of-counsel claim raised in § 2255 motion). “An ineffectiveness claim . . . is an attack on the fundamental fairness of the proceeding whose result is challenged.” Strickland, 466 U.S. at 697. The analysis involves two components, but a court need not address both if the petitioner “makes an insufficient showing on one.” Id.

         First, a federal court determines “whether, in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.” Id. at 690. The court “must be highly deferential” in scrutinizing counsel's performance and “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. In other words, the petitioner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (Internal quotations omitted). “Given the strong presumption in favor of competence, the petitioner's burden of persuasion-though the presumption is not insurmountable-is a heavy one.” Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). Second, a federal court determines whether counsel's challenged acts or omissions prejudiced the petitioner, i.e., whether “there is a reasonable probability” - one “sufficient to undermine confidence in the outcome” - that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

To prevail on a claim of ineffective assistance, a defendant must establish two things: (1) “counsel's performance was deficient, ” meaning it “fell below an objective standard of reasonableness, ” and (2) “the deficient performance prejudiced the defense.” Strickland[], 466 U.S. [at] 687-88 []. To satisfy the deficient-performance prong, the defendant must show that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687. The defendant must rebut the strong presumption that his counsel's conduct fell within the range of reasonable professional assistance. Id. at 689.

Connolly v. United States, 568 Fed.Appx. 770, 770-71 (11th Cir. 2014).

         The undersigned has concluded, after carefully examining Movant's claims and the government's responses, that none of his claims has merit. Below, a general summary follows the presentation of all of Movant's claims. More detailed discussions of particular claims are included as needed.[1] And where Movant's reply brief adds something of substance to his initial Memorandum of Law, the arguments in his reply brief are addressed as well.

         A. Counsel Failed To Argue That Movant Had Affirmatively Withdrawn From The Money Laundering Conspiracy.

         Movant asserts that he “affirmatively withdrew” from the money laundering conspiracy in June 2015. (Doc. 20-1 at 7). He contends that had counsel argued withdrawal to this Court, “there was a very reasonable probability that the charges for Conspiracy to Commit Money Laundering could have been dismissed on this ground alone.” (Id. at 8).

         The government responds that Movant's assertion, which it does not dispute, is immaterial because he was charged and sentenced based on his participation in the money laundering conspiracy “from in or around September 2014 through around June 2015.” (Gov't Resp. at 11 (quoting -158, Doc. 37 (Plea Hr'g Tr.) at 31)). “All of the actions that [Movant] took, and which were described on the record at the plea hearing as the factual basis to his conspiracy plea, occurred [when he] was laundering funds . . . from about September 2014 to June 2015.” (Id.). And Movant acknowledges that he understood by January 2015 that his activities constituted fraud and were illegal, but he continued to engage in those activities until June 2015. (Doc. 20-2 (Movant Aff.) ¶ 12 (“[A]fter a couple of months [of laundering funds], I read on the internet [] about Pre-paid Debit Card Frauds in the United Sates. Therefore, around January of 2015, I told my friend that I did not want to do this work anymore. . . . [W]e both decided to quit.”)). Moreover, counsel informed the Court at the sentencing hearing that Movant had “left the conspiracy voluntarily.” (Doc. 26 (Sentencing Hr'g Tr.) at 23).

         Movant has failed to establish that counsel's performance was deficient or that he was prejudiced by that performance. Because Movant's sentence was not based on money laundering activity that took place after he withdrew from the conspiracy in June 2015, his first claim of ineffective assistance of counsel fails.

         B. Counsel Failed To Inform Movant About All The Details Of His Charges And That He Could Have Negotiated A Different Plea.

         Movant presents no argument in his memorandum of law to support his next claim, that his plea was in part unknowing, although in his affidavit he states that a couple of weeks after his May 2017 indictment for passport fraud, “my attorney came [to] see me with some evidence of a money laundering conspiracy and some printouts with surveillance photos in Walmart where I was seen standing in front of a customer service desk and also in front of a bank teller counter. I told him everything about my job, how I started working and what was my part in this job.” (Movant Aff. ¶ 21). Then, a couple of months after his June 21, 2017 interview with federal investigators, counsel visited him and “gave [him] a plea agreement.” Because Movant “did not understand English fluently, ” he asked for a translation into his native language, Gujarati. (Id. ¶ 24).

Several weeks later, Mr. Alper [Movant's counsel] came to me with it translated and he told me to read it and if I didn't understand it to call him. He did not tell me that I could ask for a different plea or make any changes. I told him about my part in the job and asked him, why I had to take a plea? I told him that I just worked for my boss and that I did not know about the $1.5 million to $3.5 million. I never touched that money. I worked for a monthly salary. Mr. Alper said that it was not only me, everybody had to accept that amount because of conspiracy but Mr. Alper told me that I did not have [to] worry about the amount. He explained the word “conspiracy” to me with an example of a “bank robbery” case. He told me not to worry about the amount because the government did not need me because they were looking for the big fish in the telephone fraud scam. I argued again with him about the amount of $1.5 million to $3.5 million. I told Mr. Alper that I will not accept that amount because I did not launder[] that money. I have never seen that much money in my entire life.

(Id. ¶ 25 (emphasis added)).

August 17, 2017 was my day to sign my plea agreement. I tried to tell the Honorable Judge the truth but my attorney Mr. Alper stopped me and said ‘we had already discussed the plea before I signed so I have to sign or go to trial.' My attorney advised me that if I went to trial and lost, I would get more than ten years. So I became afraid and I took the plea[, ] as Mr. Alper said [] I would get between 18 months to 21 months which was Base Offense Level 16.

(Id. ¶ 26).

         The government responds that Movant's claim that his plea was somehow coerced or unknowing is belied by his plea colloquy, during which he acknowledged that he had read the criminal information against him-having waived indictment and formal arraignment-and that he understood the charges in both the -277 information and the -158 indictment. (Gov't Resp. at 13-14 (citing Plea Hr'g Tr. at 7-9)). Later, “after a prosecutor summarized the relevant plea terms, [Movant] acknowledged that he understood and agreed with the terms of the written plea agreement; that no one had forced or coerced him in any way to enter the plea agreement; and that he entered the plea freely and voluntarily.” (Id. at 14 (citing Plea Hr'g Tr. at 19)). Asked by the prosecutor if a paragraph in the Plea Agreement ÔÇťabove your signature indicates that you have reviewed the ...


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