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United States v. Egwuekwe

United States District Court, M.D. Pennsylvania

November 2, 2017

UNITED STATES OF AMERICA
v.
EJIKE EGWUEKWE, Defendant

          MEMORANDUM

          Christopher C. Conner, Chief Judge United States District Court

         The court sentenced defendant Ejike Egwuekwe ("Egwuekwe") to 46 months' imprisonment for mail fraud. (Doc. 189). Presently before the court is Egwuekwe's pro se motion (Doc. 236) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Egwuekwe asserts that he was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. For the reasons that follow, the court will deny Egwuekwe's motion.

         I. Factual Background & Procedural History[1]

         On January 8, 2014, a grand jury returned an indictment charging Egwuekwe with one count of conspiracy to commit mail fraud, wire fraud, and money laundering in violation of 18 U.S.C. §§ 371, 1341, 1343, 1956, and 1957; four counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 1342; eleven counts of wire fraud in violation of 18 U.S.C. §§ 2 and 1343; twenty-two counts of laundering of monetary instruments in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (1)(B), (2); five counts of engaging in unlawful monetary transactions in violation of 18 U.S.C. §§ 2 and 1957(a); and criminal forfeiture pursuant to 18 U.S.C. § 982(a)(1). (Doc. 1). Egwuekwe initially pled not guilty. (Doc. 52).

         Magistrate Judge Susan E. Schwab ordered that Egwuekwe be detained pending trial on February 21, 2014. (Doc. 61). Egwuekwe refused to cooperate with his first two court appointed attorneys, both of whom were permitted to withdraw. (Docs. 75, 108). On October 6, 2014, the court appointed a third attorney, Jeffrey A. Conrad, Esquire ("Attorney Conrad") to represent Egwuekwe. (Doc. 109). Shortly thereafter, Egwuekwe filed a motion to change his detention status and requested the court release him into the supervision of a cousin. (Doc. 116). Attorney Conrad withdrew the motion at the December 29, 2014 bail hearing when Egwuekwe's cousin failed to appear. (Doc. 119; Doc. 238 ¶ 7).

         Egwuekwe executed a waiver of indictment and a written plea agreement on April 21, 2015 wherein he agreed to plead guilty to a superseding felony information, (Doc. 131), charging one count of mail fraud. (Docs. 134, 138, 139). Egwuekwe affirmed that he fully understood and voluntarily agreed to the plea agreement. (Doc. 134 at 30). Therein, Egwuekwe expressly waived any right to challenge his conviction and sentence by direct appeal. (Id. ¶ 37). The agreement did not include a waiver of Egwuekwe's right to a collateral attack under 28 U.S.C. § 2255. (See id.) The court explained the appellate waiver provision to Egwuekwe at his plea hearing, whereupon Egwuekwe reaffirmed his consent to the entirety of the written plea agreement. (4/21/15 Tr. 15:8-16:22).

         The presentence report ("PSR") identified a total of 136 victims who suffered a total loss amount of $413, 370.25 on account of Egwuekwe's fraud. (Doc. 171 ¶ 15). Egwuekwe received a 14-level enhancement based on a loss amount greater than $400, 000 but less than $1, 000, 000 pursuant to Section 2Bl.l(b)(1)(H) of the United States Sentencing Guidelines ("Guidelines"). (Id. ¶ 21). His offense level was further increased by four levels under Section 2B1.1(b)(2)(B) because his fraud involved 50 or more victims. (Id. ¶ 22). A two-level enhancement was applied for Egwuekwe's use of sophisticated means to conceal the fraudulent scheme pursuant to Section 2Bl.l(b)(10)(C). (Id., ¶¶ 9, 23). The PSR calculated Egwuekwe's total offense level at 24 and his criminal history category at II. (Id. ¶¶ 30, 35). The resulting Guidelines imprisonment range was 57 to 71 months. (Id. ¶ 56). Attorney Conrad filed a sentencing memorandum on Egwuekwe's behalf seeking a downward departure from the total offense level. (Doc. 182 at 7-9).

         At sentencing on October 30, 2015, the court granted the government's motion for a two-level downward departure in recognition of Egwuekwe's cooperation. (10/30/15 Tr. 4:18-24). This departure brought Egwuekwe's offense level to 22 and the Guidelines imprisonment range to 46 to 57 months' imprisonment. (Id. at 4:25-5:4). The court denied Egwuekwe's request to otherwise depart from or reject the Guidelines range. (Id. at 2:19-3:10, 15:14-17). In weighing aggravating and mitigating factors, the court noted that Egwuekwe's offense involved over 100 victims and that "[t]his was a serious and complex fraud scheme with significant financial consequences to the victims." (Id. at 15:9-12).

         The court sentenced Egwuekwe to 46 months' imprisonment followed by a two-year term of supervised release. (Doc. 189 at 2-3). The court also ordered Egwuekwe to pay restitution in the amount of $301, 041.25. (Id. at 6). At the conclusion of the sentencing proceeding, the court explicitly reviewed the defendant's appellate rights, and noted that Egwuekwe had entered into a plea agreement which contained an appellate waiver. (10/30/15 Tr. 18:2-19).

         On May 20, 2016, Egwuekwe filed a pro se motion to modify his sentence in light of Guidelines Amendments 790 through 792 which took effect November 1, 2015-two days after he was sentenced. (Doc. 217). Egwuekwe filed a follow-up motion clarifying that he sought sentence modification under 18 U.S.C. § 3582(c)(2). (Doc. 218). The court denied Egwuekwe's motions for two reasons: first, the relevant amendments to the Guidelines were not retroactively applicable; and second, Egwuekwe's motions were more properly brought pursuant to 28 U.S.C. § 2255. (See Doc. 219). Egwuekwe appealed the court's order, (Doc. 220), and the Third Circuit Court of Appeals affirmed on September 16, 2016. See United States v. Egwuekwe, 668 Fed.Appx. 421, 422 (3d Cir. 2016).

         Egwuekwe now moves to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. 236). The motion is fully briefed and ripe for disposition.[2]

         II. Legal Standard

         Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. 28 U.S.C. § 2255. Courts may afford relief under Section 2255 on a number of grounds including, inter alia, "that the sentence was imposed in violation of the Constitution or the laws of the United States." 28 U.S.C. § 2255(a); see also R. Governing § 2255 Cases R.l(a). The statute provides that, as a remedy for an unlawfully-imposed sentence, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). The court accepts the truth of the defendant's allegations when reviewing a Section 2255 motion unless those allegations are "clearly frivolous based on the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). A court is required to hold an evidentiary hearing when the motion "allege[s] any facts warranting § 2255 relief that are not clearly resolved by the record." United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (quoting Booth. 432 F.3d at 546).

         III. Discussion

         Egwuekwe asserts several grounds in support of his request for Section 2255 relief. First, Egwuekwe avers generally that he should benefit from Guidelines Amendments 790 through 794, which took effect November 1, 2015 ("2015 amendments"). Only two of the 2015 amendments ostensibly apply sub judice: Amendment 791, which adjusts the monetary tables in § 2B1.1, see U.S.S.G. app. C, amend. 791, and Amendment 792, which makes several changes to § 2B1.1 to account for harm suffered by victims of economic crimes and the culpability and intent of defendants, see U.S.S.G. app. C, amend. 792.[3]

         Second, Egwuekwe presents an ineffective assistance of counsel claim premised on five secondary arguments: (1) that counsel failed to request a two-day continuance to allow the 2015 amendments to take effect prior to sentencing; (2) that counsel failed to file a Rule 35(a) motion to correct his sentence; (3) that counsel failed to file a notice of appeal; (4) that counsel failed to object to a notation in the PSR regarding a prior misdemeanor conviction; and (5) that counsel withdrew a motion for a new detention hearing and failed to refile at Egwuekwe's request. The court will address Egwuekwe's claims seriatim.

         A. Retroactive Applicability of Guidelines Amendments

         Egwuekwe asserts that because his hearing took place on October 30, 2015, and the district court did not enter the judgment until November 2, 2015, he should benefit from the 2015 amendments. (Doc. 237 at 2-4). A Section 2255 motion may not be used to relitigate questions that were raised and resolved on direct appeal. See United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014); United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993). The Third Circuit reviewed this issue on direct appeal from Egwuekwe's post-judgment motion to reduce his sentence. See Egwuekwe, 668 Fed.Appx. at 421-22. The court found that Egwuekwe was not entitled to the benefit of Amendments 790, 791, or 792 because the Sentencing Commission did not list them as applying retroactively. Id. at 422 (citing U.S.S.G. § 1B1.10(d)). The Third Circuit further rejected Egwuekwe's argument he should benefit from the 2015 amendments which went into effect one day before judgment was formally entered on November 2, 2015. Id. The court explained that "[i]f the amendments did not come into effect until after he was sentenced, they are not retroactively applicable." IcL (emphasis added). We will not revisit this issue on collateral review. See Travillion, 759 F.3d at 288; DeRewal 10 F.3d at 105 n.4.

         B. Ineffective Assistance of Counsel

         A collateral attack based on ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this claim, a defendant must demonstrate, first, that trial counsel's representation fell below an objective level of reasonableness based on prevailing professional norms and, second, that the deficient representation was prejudicial.

         See id. at 687-88. Conclusory allegations are insufficient to entitle a defendant to relief under Section 2255. See United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000); Sepulveda v. United States, 69 F.Supp.2d 633, 639-40 (D.N.J. 1999) (citing Blackledge v. Allison, 431 U.S. 63 (1977)).

         In determining whether counsel has satisfied the objective standard of reasonableness under the first prong, courts must be highly deferential toward counsel's conduct. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989). Only a "rare claim" of ineffectiveness of counsel should succeed "under the properly deferential standard to be applied in scrutinizing counsel's performance." IcL at 711 (citing Strickland, 466 U.S. at 689-90). Counsel will not be deemed ineffective for failing to raise a meritless claim. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).

         To satisfy the prejudice prong, the defendant must establish a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 694. The district court need not conduct its analysis of the two prongs in a particular order or even address both prongs of the inquiry if the defendant makes an ...


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