United States District Court, N.D. Georgia, Atlanta Division
DIPAKKUMAR S. PATEL, BOP Reg. # 52328-424, Movant,
UNITED STATES, Respondent.
TO VACATE 28 U.S.C. § 2255
MAGISTRATE JUDGE'S FINAL REPORT AND
Clay Fuller J. Clay Fuller United States Magistrate Judge
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
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
[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).
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).
Standard of Review
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).
Movant's Grounds For Relief: Ineffective Assistance
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.
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
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
Connolly v. United States, 568 Fed.Appx. 770, 770-71
(11th Cir. 2014).
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. 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.
Counsel Failed To Argue That Movant Had Affirmatively
Withdrawn From The Money Laundering Conspiracy.
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
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).
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.
Counsel Failed To Inform Movant About All The Details Of
His Charges And That He Could Have Negotiated A Different
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
(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).
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 “above
your signature indicates that you have reviewed the