Alexander v. United States

• Court: District Court, D. Connecticut
• Decided: September 19, 2022
• Docket: 3:19-cv-00545
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Petitioner MARC ALEXANDER, v. , Civil No. 3:19-cv-00545 (JBA)

September 19, 2022 Respondent. UNITED STATES OF AMERICA,

RULING ON PETITIONER’S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Petitioner Marc Alexander filed a motion to vacate, set aside or correct his sentence for conspiracy to commit mail fraud and wire fraud under 28 U.S.C. § 2255 on April 12, 2019. [Doc. #1]. Petitioner makes two ineffective assistance of counsel claims: counsel should not have alloweFda thiciom to enter a guilty plea while impaired, and counsel should have sought a hearing at sentencing to determine Petitioner’s loss liability under the Sentencing Guidelines. [Doc. I#d .1 2]. Petitioner asks the Court either to vacate his guilty plea or resentence him. ( at 22-23.) For the Ifo. llowinLge graeal sSotanns,d Paertdit ioner’s motion is denied. To succeed on an ineffective assistance of counsel claim, a petiSttiroincekrla mndu svt. sWaatisshfyin gbtootnh prongs of the test established by the Supreme Court in , 466 U.S. 668 (1984). A petitioner must “(1) demonstrate[e] that his attorney's performance ‘fell below an objective standard of reasonableness’ in light of ‘prevailing professional norms,’ and (2) ‘affiUrmniatetidv Setlya tperso vv. eC parraejcuadpipcae’ arising from counsel's allegedly deficienStt rreicpkrleasnedntation.” , 614 F.3d 30, 46 (2d Cir. 2010) (quoting , 466 U.S. at 688, 693 (1984)). Review under the first prong “must be highly deferential” and “indulge a strong presumption that .S t[raincdkl]a envdery effort [must] be made to eliminate the distorting effects of hindsight.” , 466 U.S. at 689. To satisfy the second prong when alleging defects at sentencing, a petitioner must show a “reasonable probability that, but for coLuanflseerl 'vs. sCuobosptearndard performance, he would have received a less severe sentence.” , 566 U.S. 156, 164 (2012). Unlike tMheo rfgirasnt pv.r Uonngit,e tdh Set asetecsond prong may be considered “with the benefit of hindsight.” Lockhart v., FNroe.t w06e lCliv. 1247, 2009 WL 1172849, at *5 (E.D.N.Y. May 1, 2009) (citing , 506 U.S. 3II6. 4, 37C1l–a7im3 ( o1f9 I9n3e)f)f.e ctive Assistance of Counsel at Guilty Plea Proceedings A. Factual Background

The Court held a hearing on January 17, 2017, to afford petitioner the opportunity to plead guilty to conspiracy to commit mail fraud and wire fraud, and advised at the start that it would conduct questioning to ensure that it was a valid plea: “you know what rights you're giving up, that you're competent to enter a guilty plea, that you are doing it voluntarily and not under any duress, and that there's a 1 factual basis for your guilty plea.” (3:16-cr-00073-JBA-1, [Doc. #240] at 3.) After Petitioner confirmed he Idu.nderstood the purpose of the hearing, the Court commenced questioning. ( ) Petitioner responded that he had read and discussed the written plea agreement with hisI dc.o unsel and that he was satisfied with his counsel’s advice and representation. ( at 8-9, 14.) When Petitioner began to appear unsteady after standing, the Court asked him if he needed to sit down, and Petitioner’s counsel explained that Petitioner “hasn’t eaten in several days because of various situations [at] Wyatt. And also, it’s quite warm in here. So I think the combination of that is affecting his – his ability to stand

1 Petitioner’s counsel also aIdff.irmed that he had discussed the case with Petitioner, Id. up.” ( at 25.) Petitioner’s counsel offered to explain the “various reasons” for which Petitioner was “not eating the food” at thIde. correctional facility Wyatt, and the Court held a sidebar to speak with counsel. ( at 25-26.) After the side bar, the Court paused the proceeding so that Mr. Alexander could eat, noting that “although he cIedr.t ainly appears fully attentive to what is going on here, one cannot be too careful.” ( at 32.) After the recess, the Court and Petitioner’s counsel had the following discussion on the record: THE COURT: All right, please be seated, counsel. We are continuing the hearing in US versus Marc Alexander. Are you feeling refreshed, Mr. Alexander?

THE DEFENDANT: Yes, ma'am, thank you.

MR. PAETZOLD: Your Honor, just for the record, while Mrs. Alexander's change of plea was taking place, I met with Mr. Alexander to make sure that one, he was -- he received the meal, which he did. And number two, that he was coherent and understood what was happening. And so I conducted a number of inquiries of Mr. Alexander to see whether he was aware of what was taking place here prior to him kind of passing out. And also –

THE COURT: I wouldn't call it passing out. I would call it stumbling.

MR. PAETZOLD: Stumbling, all right. I didn't -- I just saw him going to the side. Nonetheless, he indicates to me that he is aware of what is taking place, that this is a change of plea, and that he intends to continue with the change of plea. And I encourage the Court to ask any further qIude. stions.

( at 32-33.) Petitioner thenI da.ffirmed that he was in a more comfortable state, and that he was ready to proceed. ( at 33.) In a declaration by Petitioner’s counsel, William Paetzold, he states that “[m]y understanding is that [Petitioner] had not eaten for at least a few days prior to his appearance in court for the guilty plea.” [Doc. # 12-1] at 2-3. He recites that he and questions about the number of cars that the government sought to hIdo.l d him accountable for under the Sentencing Guidelines upon a guilty plea. ( at 3.) Attorney Paetzold “believed that [Petitioner] was prepared to proceIedd. as he began answering the Court’s questions as part of the plea allocution.” ( ) During the allocution, Attorney Paetzold states that “Mr. Alexander whispered to me that he was feeling a little nauseous and dizzy. It was warm in the courtroom. I recall that Mr. AIlde.xander’s breath smelled very bad. He stumbled at some point as if about to faint.” ( ) Petitioner alleges that his bad breath was a symptom of ketosis, “a condition 2 caused by inadequate intake of carbohydrates.” (Pet’r’s Mem. at 7.) Mr. Paetzold states that although he advised the Court that Mr. Alexander understood what was going on in court “based on my inquiries of Mr. Alexander,” he had “no independent basis to say that Mr. Alexander was Iidn. adequate condition to proceed or able to evaluate and attest to his condition.” ( ) Petitioner also submitted a declaration dated June 2, 2021 stating that he had not been “up to something as important as agreeing to plead guilty” based on his condition at the time of the change of plea hearing and that he still “had questions about the government’s view of loss, the number of cars for which I could be properly held accountable, whether or not it was best to plead guilty with a plea agreement, among other things,” but that he “did not resolve those questions to [his] satisfaction” before pBl.e adinDg igsucuiltsys.i [oDno c. # 12-2] at 2-3.)

2 According to Petitioner’s submissions,S keee tosis is not always severe enough to be considered an impairment, as there are diets that specifically seek to induce a state of ketosis as part of a weight loss plan. ( Pet’r’s Mem. at 7, citing “10 Signs and Petitioner argues that his counsel erred in not requesting a rescheduling of his guilty plea because counsel knew Petitioner had not eaten for some period of days and was exhibiting visible symptoms of unwellness. (Pet’r’s Mem at 21-22.) He claims that there was a “reasonable probability” that he would not have entered the plea, or at least the paIdrt.icular plea as presented, if counsel “properly requested an adjournment.” ( ) According to Petitioner, counsel should have “at least” requested that the Court re-start the Rule 11(b)Id q.uestioning from the beginning after Petitioner was provided the chance to eat. ( ) In Petitioner’s view, neither the sandwich provided to relieve Petitioner’s hunger nor his “expressed sense of his ability” to proceed were sufficient to satisfy the requirements of a voluntary and intelligent plea because “[t]he fact that a defendant seems competent Iwdh. en answeringU nthitee dju Sdtagtee’ss qv.u Heastridoinmso ant, t he plea hearing should not be conclusive.” ( at 22) (citing 70 F.3d 940, 943 (7th Cir. 2012)). Respondent argues that Petitioner’s claim is barred by the mandate rule, prohibiting “’re-litigationY icokf Misasune Ms uail vre. Uadnyit edde Sctiadteeds on direct appeal.’” (Response [Doc. # 14] at 14) (citing , 614 F.3d 50, 53 (2d Cir. 2010)). Specifically, Respondent references Petitioner’s unsuccessful challenge to the validity of his guilty plea under these circumstances in the Second Circuit, arguing that since the Second Circuit has rejected it, iUt cnoitueldd Sntoatt ebse v r. ePceorneszi,d ered without running afoul of the Second Circuit’s decision in which explicitly applied the mandate rule to a § 2255 motion. (Response at 14) (citing 129 F.3d 255, 26S0tr (i2ckdl aCnird. 1997)). ResIpdo.ndent also argues that the claim fails on the merits under the standard. ( ) Respondent points to counsel’s steps to prepare his client for the change of plea proceeding, his communication with his client during it, ensuring his client ate during recess, speaking to him about resuming thIed .p roceeding, and affirming that his client was aware of what was taking place. ( at 22.) Further, Respondent argues, there is no prejudice because Petitioner does not claim actual inIdn.ocence, only dissatisfaction with the sentence he received as a result of the plea. ( ) Finally, Respondent argues that Petitioner’s affidavit only reflects what is already in thIed .record, rather than presenting the court with any new factual information. ( ) In reply, Petitioner maintains that the prejudice caused was twofold: he still had lingering questions about both the implications of his plea and his possible sentence that might have been resolved if his plea hearing had been postponed, and he might have then narrowed the terms of his plea to reduce his possible sentence. The remedy he seeks is to “assure that his guilty plea and sentence serve to hold him accountable only for the loss for which he is truly responsible,” not to enter a plea of actual innocence. (Replyat 3.) The mandate rule “bars re-litigation of issues already decided on direct appeal,” whether “expressly decidYeidc kb yM tahne aMpupiellate court” or “impliedly resolved by the appellate court's mandate.” , 614 F.3d at 53 (2d Cir. 2010). An appellate court implicitly rejects an ineffective assistance of counsel claim, later brought in a § 2255 petiSteioe nid, .i f the underlying facts and arguments were considered and rejected on appeal. The Second Circuit considered and rejecUtendit ePde tSittaiotnese rv’.s H aarrgruisment that his guilty plea had not been knowing and voluntary. , 813 F. App'x 710, 715 (2d Cir. 2020) (summary order). It held that “the district court did not plainly err in determining that Marc Alexander was competent to enter a knowing, intelligent, and voluntary plea” because it did so after “determining that Marc Alexander was competent to change his plea, then taking concrete steps to address concerns about his mental and physical state that arose in the middle of tIhde. proceeding and conducting an inquiry to ensure the effectiveness of those steps.” ( at 3-4.) The Second Circuit’s opinion precludes this Court from finding otherwise and, by implication, also requires a finding that counsel’s performance was not deficient. If the plea proceeding was not deficient, then there was no need to reschedule it or restart the Rule 11 colloqu y, making counsel’s decision not to request either course of action a reasonable one. Petitioner maintains without elaboration that a challenge to a guilty plea is distinguishable fromP aenre izneffective assistance of counsel claim for purposes of the mandate rule under . (Reply [Doc. # 15] at 2.) However, litigants cannot evade the binding nature of an appellate ruling by merely repackaging a substantive claim as ineffective assistance of counsel; if a claim is “premised on the Usanmiteed f aScttast easn vd. Preitscth[se]r on the same legal ground” as one brought on direcSt eaep Jpoenaels, v. United States , 559 F.3d 120, 124 (2d Cir. 2009), it will be barred. , 543 F. App'x 67, 71 (2d Cir. 2013) (finding that where the Second Circuit affirmed the district court’s refusal to instruct on multiple conspiracies to the jury, petitioner’s claim that counsel was ineffective in failing to request the same instruction “fare[s] no better wheJonn eres,framed as an ineffective assistance of counsel claim.”) Like the petitioner in Petitioner’s attempt to reframe his guilty plea challenge as an ineffective assistance of counsel fares no better than his original unsuccessful 3 arguments before the Second Circuit. 3 court’s In fact, Petitioner doSeese not cite authorities that address the responsibilities and Hduatrideism oof nc,o unsel, but primarily on cases that explain a rejuspdognesibility during a Rule 11(b) colloquy. ( Petition at 21-22). For example, when Petitioner cites to 70 F.3d 943, the quoted portion states that “A Id. is required to investigate the defendant’s mentadl issttartiect i f cthoeurret’ sare indications at the plea hearing or later of an impairment that made him incompetent to plead.” ( ) (emphasis added). Petitioner reiterates that “[a] failure to follow [Rule 11(b)’s] requirements requirIde.s that aU nrietveide wStiantge s cvo. uRrotd r‘iegxuaemz,i ne critically even slight procedural deficiencies to ensure that the defendant’s guilty plea was a voluntary and intelligent choice.’” ( ) (citing 725 F.3d 271, 277 n.3 (2d The declaration of Attorney Paetzold largely confirms what is already in the record: that Mr. Alexander was not feeling well after several days without food; that at one point he stumbled in court, which resulted in a temporary recess of the proceedings; and that counsel conducted an inquiry to determine PetitioneSre’es competency to understand what had transpired up to that point and to proceed. ( Exhibit 1.) Petitioner’s own declaration provides additional insight on his own view of his competency that day but adduces no new facts warranting a different outcome from the Second Circuit’s concSleues ion that Petitioner entered a valid guilty plea while represented by his attorney. ( Exhibit 2.) III. TClhaei mCoeudr tI nDeEfNfeIcEtSi vPee tAitsisoinsetar’ns cree qouf eCsot uton svealc afoter hFiasi gluurilet yt op lReae.q uest a Fatico Hearing on Loss Calculation A. Factual Background

Petitioner’s plea agreement noted disagreement about “the applicability of other sections of the Guidelines,” including the amount of loss under Count 14, which 4 was the title-washing scheme. (3:16-cr-00073-JBA-1 [Doc. # 166] at 4.) In Petitioner’s sentencing memorandum, counsel disputed several of the loss calculations in the Presentence Report for the title washing scheme, pointing out instances where the loss figure wrongly included penalties in violation of U.S.S.G. § 2B1.1, Application Note 3(D)(i), and presenting a proposed figure of $477,736.84 prior to the deduction of any credits unFdaetri cUo.S.S.G. § 2B1.1, Application Note 3(E). (3:16-cr-00073-JBA-1, [Doc. # 191].) No hearing was requested.

4 The Presentence Investigation Report noted that the Government believed the offense level for Count 14 would be increased by fourteen levels “for a loss amount exceeding $550,000 dollars but not more than $1,500,000. (3:16-cr-00073-JBA-1, Instead, both counsel for Petitioner and for the Government made arguments at sentencing as to the proper method of calculation for intended loss, as well as the resulting amount. (3:16-cr-00073-JBA-1, Sent’g Tr. at 6.) Defendant’s counsel disagreed that “all of [the vehicles in the PSR] should be assessed towards Mr. Alexander,” noting that the proposed figures did not necessarily take into account “exclusions from loss,” and contenIdd.i ng “that the loss should be a 12-level increase, as opposed to a 14-level increase.” ( at 8-9.) Counsel argued that “there were only six cars where there was actual title washing that had taken place,” and that given the complexity of the subsequent purchases, repossessions, and seizures, the correct way to proceed was to use a “reasonable estimate” to cIdo.nclude that the offense level would be more than $250,000, but less than $550,000. ( at 12-13.) After hearing from both sides, the Court found: The Court . . . with respect to the amount of intended loss on Count 1 [the postal order fraud], [] is persuaded that he is responsible for the full [$]313,000. Even if we . . . went to Count 14 [the title washing scheme], which the defendant argues is too complex and therefore the Court should estimate, I look at the government’s spreadsheet of the amount financed, [$]1078,000; the amount owed, [$]840 – almost [$]841,000. Take a percentage of any of those, and we are well into the [$]550 category, more than [$]550. And even the defendant, using the figure of [$]477,700, which he says does not embrace all of the credit and fees and so forth that should be taken into account, even if you took 50 percent of that, which has got to be far – a generous exemption for that which should not be included, [you] are still in the [$]550,000 plus category. So it seems to me any way that you slice and dice it, the inIdte. nded loss from these two schemes is – gets a 14-level enhancement.

( at 68.)

Petitioner was sentenced to 96 months imprisonment and on July 25, 2018, restitution was ordered in the amount of $624,308.92 to be paid by Marc Alexander and his wife, Rachael Alexander. The order included a schedule breaking down each entity to whom restitution had to be paid. (3:16-cr-00073-JBA-1 [Doc. # 386].) PeFtaittiiocon er appealed his guilty plea, sentence, and restitution, but raised the lack of a hearing only as grounds for a new restitution proceeding, rather than for a resentencing. The Court has now entered a new order on restitution in accordaBn. ce wiDthi stchues Sseioconn d Circuit’s remand. (3:16-cr-00073-JBA-1 [Doc. # 485].)

Because his co-defendant Rachael Alexander Fcahtaiclolenged the government’s evidence as to the amount of intended loss at her own hearing and reduced the scope of the title-washed cars from twenty-nine cars to eleven, Petitioner therefore reasons that his own counsel was ineffective in not also requesting a chance to reduce the scope of his loss. (Petition at 20). Because his counsel argued instead that the calculation of loss “had too many moving parts to estimate,” Petitioner alleges his performance “fell below an objective standarFda toicf or easonableness under prevailing professional norms.” (Petition at 20). A hearing “would have limited Petitioner's loss to just the cars for which he was truly accountable,” which he maintains only encompasses the seven cars he Ikdn. ew were part of the title fraud, with an associated loss value of only $205,230.67. ( at 12-13, 20.) When combined with the $313,570 postal order fraud loss, Petitioner contends the total loss would have been $528,800.67, which wIoduld have resulted in a 12-point increase to the Guidelines base level instead of 14. ( . at 12-13) At a resentencing, Petitioner argues thaIdt . he would be resentenced under the Guidelines to 63-78 months instead of 77-96. ( at 5 23.)

5 F aRteicsopondent mistakenly maintains that Petitioner cannot establish his ineffective assistance of counsel claim beFcaatuicsoe the Court gave him the opportunity to have a hearing after the direct appeal and remand on issues of restitution. (Response at 16.) The opportunity for a hearing Petitioner was provided was limited to restitution by the Second Circuit’s opinion and did not extend to the loss calculation Fatico “The purpose of a hearing is to permit ‘the prosecution and the Ndaefreannsjoe [vt. oU] ninitterdo dSutacete esvidence relating to the appropriate sentence,’” including loss. report an, dN roe.c 1om3-mCRen-3d5a1ti o(nJS aRd)o, p2t0e2d1 WL 1063442, at *12 (S.D.N.Y. Feb. 26, 2021), United Stat,e Ns ov.. L1o3h-CaRn-351 (JSR), 2021 WL 1317232 (S.D.N.Y. Apr. 8, 2021) (quoting , 945F aFt.2icdo 1214, 1216 (2d Cir. 1991)). Defense counsel “may properly decide to forego a hearing as a matter of strategy, and [the Second Circuit] Fplroerseus-mMee[nsd] ethz avt. sUunciht ead s Strtaatteegs,y is sound absent a strong showing to the contrary,” United StNaote. s1 v3. -SCaRn-t0ia0g3o1, (KBF), 2018 WL 357311, at *2 (S.D.N.Y. Jan. 10, 2018) (citing 330 Fed. App’x 234, 238–39 (2d Cir. 2009) (internal quotations omitted), especially when there is a strong chance the government will present “an enormous amount of dSeaem Sacghinwga mevbiodrenn cve. Urengitaerdd iSntga ttehse seriousness and scope” of a crime oar dchoenrsepdi rtaoc iyn. part on reconsideration , 492 F. Supp. 2d 155, 163 (E.D.N.YC.l)y,m ore v. United States, , 507 F. Supp. 2d 229 (E.D.N.Y. 2007) (citing . 1 64 F.3d 617, 1998 WL 681281, at *2 (2d Cir. February 5, 1998) (summary order) Although the number of title-washed cars was ultimately redFuacteicdo from the government’s proposed twenty-nine cars to eleven after Rachael’s hearing, Scotruicnkslealn’sd conduct must be evaluated without “the distorting effects of hindsight.” , 466 U.S. at 689. At the time of his sentencing, the government alleged Petitioner was responsible for losses associated with twenty-nine cars for a total amount owed of $841,000; it was reasonFaabtliec os trategy for Petitioner’s counsel to conclude at the time that the risk of a hearing that Petitioner would be sentenced on even more than $550,000 outweighed the p ossibility that he could establish it was less. (3:16-cr-00073-JBA-1, Sent’g Tr. at 68.) Strickland Petitioner’s claim fails on the secoFnadt ico prong as well, because Sheee cSatrninckolta nshdow that the failure to request a hearing caused him prejudicFea. tico , 466 U.S. at 697. While Petitioner points to the results of Rachael’s hearing as evidence that he was prejudiced, Rachael received the same 14-point enhancement for losses over $550,000 as Petitioner. (3:16-cr-73-2 (JBA), Sent’g Tr. at 6.) To overcome this hurdle, Pehtiitsi oner advances the convoluted argument that he wRaocuhlade hl’save been successful at hearing because based on the facts adduced at hearing, he is liable for only seven of the eleven cars that the Court found were part of the title-washing scheme. Taken together with his second argument— that the intended loss value for each car should be reduced by its fair market value— Petitioner claims there is a reasonable probability the Court would have found his loss amount to be less than $550,000. At Rachael’s hearing, the Government presented evidence on both intended loss and on restitution; the distinction between the two figures was that restitution amount was reduced to account for any vehicles that were rFeaptoiscsoe ssed a nd resold, thus recouping some of the lost value. (3:16-cr-00073-JBA-2, Day 1Tr. [Doc. # 406] at 79.) At the end of the hearing, the Government concluded the intended loss for the title-washed cars was $5F4a8t.i2c3o7 .97, a nd that restitut ion value was $310,738.92. (3:16-cr-00073-JBA-2, Day 2 Tr. [Doc. # 407] at 117.) In the Court’s recent order on Marc Alexander’s restitution, the same monetary losses associated with the eleven cars Rachael Alexander was held liable for were found reasonably foreseeable to Petitioner as well, rejecting his argSueem ent that he should be responsible for less restitution than Rachael Alexander. ( 3:16-cr-00073-JBA-2 [Doc. # 485].) Like restitution, if a loss is a reasonably foreseeable consequence of the conspiracy, then a defendant can properly be sentenced based on that loss even See United States v. Leslie without proof of direct knowledge or participation. , 658 F.3d 140, 144 (2d Cir. 2011) (holding that the defendant could be sentenced based on losses occurring as a result of the conspiracy even after he was incarcerated because he was the person who devised the fraud scheme, executed it, and taught others to use it, and had never withdrawn from it.). The Court is unpersuaded that Petitioner should be held responsible for less loss than Rachael based on their roles in the conspiracy given that “Rachael and Petitioner were identically-charged and each independently qualified for aggravating role adjustments under U.S.S.G. [§] 3B1.1,” (Pet’r’s Mem. at 13.)S, eaend the Court rejected an identical argument in its recent order on his restitution. ( 3:16-cr-00073-JBA-1 [Doc. # 485].) Petitioner thus has not demonstrated a “reasonable probability” that he would have been sLeanflteernced on less than eleven cars for a total intended loss value less than $550,000. , 566 U.S. at 164. PetitioneFr aatliscoo argues that under Application Note 3(E)(ii), he would have established at a hearing that the amount of loss for each car should be reduced by the fair market value of the vehicle. However, Application Note 3(E)(ii) states that loss should be reduced “[i]n a case involving collateral pledged or otherwise provided by the defendant [by] the amount the victim has recovered at the time of sentencing from disposition of the collateral, or if the collateral has not been disposed of by that time, the fair market value of the collateral at the time of sentencing.” As the Court explained in its recent restitution order, however, the amountF raetcicoov ered from the “disposition of collateral” was taken into consideration at the hearing when calculating restitution, and is thus the same as the value of intended loss minus credits for disposition: $ 310,738.92, which whenS ceoembined with the amount of the postal order fraud [loss], still exceeds $550,000. ( 3:16-cr-00073-JBA-1 [Doc. # 485].) arguendo Even assuming that Petitioner is correct, and he could have established lower loss values for seven of the cars under Application Note 3(E)(ii), the total value of the eleven title-washed cars for which he is liable is still more than $C5a5r0s,0 D0e0f. e ndant contested liability for: Adjusted Loss Value (Intended Loss – Repossession Value) 2013 BMW convertible (128i) $21,500.00

BMW 750Li Xdrive $0

2008 Hummer $12,362.00 204 Jeep Cherokee $32,102.00 Total for four contested cars: $65,964.00 + Defendant’s proposed seven-car total: $205,230.67 Eleven car total: $271,194.67 + ATmotoaul notf oTfi Ptloes-tWala Osrhdinerg Farnadu dP:o stal $313,570.00 Order Fraud with Credits Deducted: $584,764.67 See Fatico F(atic3o: 16-cr-00073-JBA-2, Day 1 Tr. at 118, 123, 132-133; 16-cr-00073- JBA-2, Day 2 Tr. at 22-23.) As seen above, the resulting figure still exceeds $550,000. Because the amount of loss would still have resulted in anF aitniccore ase of 14 Guideline levels regardless of whether his counsel had requested a hearing in connection with his sentencing, Petitioner cFaantnicoot show that he suffered prejudice from his counsel’s decision not to requeFsta tai co hearing. Petitioner’s motion for a IV. Conclusion

For the foregoing reasons, the Court DENIES Petitioner’s motion [Doc. #1].

IT IS SO ORDERED.

___/s/_____________________________ Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut: September 19, 2022