United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge United States District
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.
Factual Background & Procedural
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).
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
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.
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).
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).
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).
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).
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.
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
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.
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
Retroactive Applicability of Guidelines Amendments
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.
Ineffective Assistance of Counsel
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.
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)).
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).
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 ...