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United States v. Kuran

United States District Court, E.D. Pennsylvania

March 8, 2017

FEDA KURAN, Defendant


          GERALD J. PAPPERT, J.

         Feda Kuran seeks to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. For the following reasons, her motion is denied and no certificate of appealability shall issue. Kuran was charged by information with one count of healthcare fraud in violation of 18 U.S.C. §§ 1347 and 2, one count of a violation of the anti-kickback statute, 42 U.S.C. § 1320a-7b(b)(2), and aiding and abetting in violation of 18 U.S.C. § 2. (ECF No. 1.) Kuran owned and managed ambulance companies that defrauded Medicare by transporting patients whose medical condition did not require ambulance services.

         Kuran pleaded guilty to both counts on April 17, 2013, (ECF No. 8.), and on November 5, 2014 was sentenced by Judge William H. Yohn, Jr. to 64 months imprisonment, 3 years of supervised release, a $200 special assessment and $2, 015, 712.52 in restitution, (ECF No. 37). Her sentence was within the 57 to 71 month Guidelines range, as calculated in the Pre-Sentence Report and explained by the Court. (Tr. of Sentencing Hr'g, at 5:3-15, ECF No. 49-2.) On September 6, 2016 she filed a pro se motion under 28 U.S.C. § 2255, contending that: (1) the government did not “prove the actual amount vs. the intended loss, which caused an enhancement of [the] base offense level;” (2) restitution damages were improperly calculated and split among the parties; (3) she played a “minor role” and is entitled to a retroactive reduction in her sentence under Amendment 794; and (4) her counsel was ineffective.


         Kuran's motion is time-barred and she offers no reason why this Court should apply equitable tolling. Moreover, even if the motion had been timely filed, it would fail because Kuran knowingly and voluntarily waived her right to collaterally attack her sentence and enforcing this waiver will not work a miscarriage of justice.

         Kuran filed her motion more than nine months after the statutory deadline. A Section 2255 motion is subject to a one-year statute of limitations. See 28 U.S.C. § 2255(f). The limitations period runs from the latest of the following: “(1) the date on which the judgment becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of diligence.” Id.

         The Court entered judgment on November 17, 2014. (ECF No. 41.) Because Kuran did not file a direct appeal of her sentence, she was required to file her motion on or before November 17, 2015 unless one of the alternate-timing provisions applied. Kuran asserts that Section 2255(f)(4) applies, making her September 6, 2016 motion timely. Aside from claiming “information found after the fact per due diligence, ” (Def.'s Mot., at 11, ECF No. 46), Kuran offers no explanation why her supposedly newly discovered facts could not have been discovered prior to the expiration of the statute of limitations. Kuran never explains what new information she has. Moreover, all of her objections involve information that she would have known at the time of her sentencing. For example, Kuran challenges the government's calculation of “actual loss” and the allocation and calculation of restitution damages. Yet Kuran knew the government's calculation of both of these figures at the time of her sentencing because she stipulated and agreed to the actual loss calculation in her signed plea agreement. (Plea Agmt., at 3 & 5, ECF No. 8.)

         For similar reasons, equitable tolling should not apply to Kuran's motion. “A litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). Kuran has not established either element.

         In a reply brief, Kuran argues that her motion is timely because the Supreme Court's decision in Molina-Martinez v. United States, 136 S.Ct. 1338 (2016), announced a new rule which applies retroactively to her case. See also 28 U.S.C. § 2255(f)(3). In Molina-Martinez, a defendant who pleaded guilty to being unlawfully present in the United States was sentenced to 77 months imprisonment. Id. at 1343. On appeal, the defendant argued that the district court erred in calculating his guideline range. Because the defendant did not object to the calculation at the time of his sentence, “he was entitled to relief only if he could satisfy [Federal Rule of Criminal Procedure] 52(b)'s requirements.” Id. at 1344.

         A court of appeals has discretion to “remedy a forfeited error” under Rule 52(b) provided three conditions are met. Id. at 1343. “First, there must be an error that has not been intentionally relinquished or abandoned.” Id. Second, this error must be “clear or obvious.” Id. Finally, the error “must have affected the defendant's substantial rights” meaning that “but for the error, the outcome of the proceeding would have been different.” Id. (quotation and citation omitted). The question facing the Supreme Court in Molina-Martinez was whether the defendant, in establishing an effect on substantial rights, had to “make some further showing of prejudice beyond the fact that the erroneous, and higher, Guidelines range set the wrong framework for the sentencing proceedings.” Id. at 1345. The Court held that the defendant did not have to make this additional showing. Id.

         Molina-Martinez concerned the application of Rule 52 and the evidentiary burden facing a defendant in the context of a direct appeal of a sentence and obviously does not apply here. Moreover, in Molina-Martinez, the defendant pleaded guilty without a plea agreement. See Brief for the United States at 4, Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) (No. 14-8913), 2015 WL 9181065, at *20. Kuran seeks to attack her sentence under Section 2255 after she pleaded guilty and “intentionally relinquished or abandoned” her right to collaterally attack her sentence in a Section 2255(b) motion. Id. at 1343; see infra Part II. Thus, even if Rule 52 was applicable, Kuran would not satisfy its requirements.


         Kuran's motion also fails because she waived her rights to collaterally challenge her sentence. Criminal defendants “may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver.” United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008). When a criminal defendant waives collateral challenge rights, the Court must evaluate the validity of the waiver by examining two factors: (1) whether ...

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