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U.S. v. BROWN

October 21, 1999

UNITED STATES OF AMERICA
v.
JASON BROWN, DEFENDANT.



The opinion of the court was delivered by: Katz, Senior District Judge.

MEMORANDUM & ORDER

Jason Brown pled guilty to one count of bank fraud and was subsequently sentenced by this court to ten months of imprisonment followed by five years of supervised release. Mr. Brown now brings this pro se motion for relief pursuant to 28 U.S.C. § 2255, arguing that his counsel was ineffective at the sentencing hearing.

Standards

Claims of ineffective assistance of counsel are evaluated under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. 2052. The defendant bears a heavy burden of showing that, but for counsel's errors, the results of the proceeding would have been different. See id. at 694, 104 S.Ct. 2052.

Discussion

Mr. Brown makes several different claims of ineffective assistance, but none of these claims warrant the relief requested.*fn1

Failure to Object to Loss Calculations

Mr. Brown first argues that his counsel was ineffective for failing to object to the presentence investigation's loss calculations that were used by the court in imposing sentence. Mr. Brown was attributed with $8,000 in intended loss that was prevented only because the bank put a hold on the accounts he was attempting to use. Mr. Brown argues that as U.S.S.G. § 2F1.1 permits the calculation of intended loss based only on losses that could realistically have been inflicted, he should not be penalized for the $8,000 he attempted to steal.

Initially, Mr. Brown cannot claim that his counsel was ineffective for not raising this claim at sentencing because Mr. Brown specifically stipulated to the amount of loss in the plea agreement he signed. See Plea Agmt. ¶ 10(b) (stipulating that loss was between $20,000 and $40,000, an amount that includes the intended loss to which Mr. Brown now objects). Nor can the defendant argue that he was unaware of this issue: The court asked at the plea colloquy whether he agreed with the government's description of events, including the $8,000 in attempted loss, and Mr. Brown stated that he did so. See Transcript of Plea Colloquy at 18-20, 25. Mr. Brown also explicitly stated that he agreed with the pre-sentence report, which included this loss as well. See Sentencing Transcript at 3.

The court accepted the plea agreement and the representation at sentencing in keeping with Third Circuit case law stating that if the estimable intended loss is higher than the actual amount lost, the sentencing court should utilize the higher number. See United States v. Maurello, 76 F.3d 1304, 1309 (3d Cir. 1996); see also U.S.S.G. § 2F1.1 app. note 8 (directing courts to apply intended loss in such situations).. In this case, the amount of intended loss was easy to estimate because Mr. Brown attempted to acquire an $8,000 loan from an account that was not his. The only reason Mr. Brown failed to acquire the $8,000 to which he refers now was that bank personnel had placed a special alert on the account.*fn2 Counsel was not ineffective for failing to object to this loss, as both the law and the facts of the case indicated that including it was appropriate.

Failure to Object to Unforeseeable Conduct

Failure to Request a Downward Departure

Defendant argues that his counsel was ineffective for failing to request a downward departure at sentencing. First, plaintiff objects to counsel's failure to draw the court's attention to U.S.S.G. ยง 2X1.1(b)(1), which reduces the base offense level for certain attempts, conspiracies, and solicitations. However, this section is plainly inapplicable, as Mr. Brown was convicted of bank fraud. Moreover, Mr. Brown would not have been eligible for a three-level decrease in his offense level because the only reason he did not complete portions of his intended fraud was that he was stopped by law enforcement ...


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