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United States v. Alam

United States District Court, D. Kansas

January 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MANJUR ALAM, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE.

         In 2013, Defendant Manjur Alam pleaded guilty to one count of conspiracy to commit wire and bank fraud for his involvement in a mortgage-fraud scheme. The Court sentenced him to a prison term of 72 months, to be followed by five years of supervisory release, and ordered him to pay $258, 309.21 in restitution. Alam seeks to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Doc. 176). He asserts that his sentence is unlawful because (1) he received ineffective assistance of trial counsel in violation of the Sixth Amendment, (2) he received ineffective assistance of appellate counsel in violation of the Sixth Amendment, and (3) his right to a fair trial under the due process clause of the Fifth Amendment was violated as a result of the Government's failure to disclose victim statements under 18 U.S.C. § 3664.

         Upon review, Alam's motion is denied in part, as identified below. The Court orders the parties to submit briefing on Alam's allegation that trial counsel withheld evidence from the Government.

         I. Factual and Procedural Background

         In 2006, Alam was convicted of conspiracy to defraud the U.S. Department of Housing and Urban Development and received 12 months' probation. Between 2006 and April 2008, including while on probation, Alam developed a new fraudulent scheme. Under the scheme, unqualified buyers submitted home-loan applications containing false representations and Alam provided false supporting documentation, including letters of credit and verifications of rent. Foreclosure proceedings commenced after the buyers defaulted. The lenders bid on the properties at the sheriff's sales and then sold the properties for less than the outstanding balances.

         Alam was originally indicted on March 26, 2013. On April 23, 2013, Alam and six co-defendants were charged by a ten-count superseding indictment. Roger Falk and James McIntyre with the Law Office of Roger L. Falk, P.A. represented Alam in the criminal proceedings before the Court.[1] On November 5, 2013, Alam pleaded guilty to count one of the superseding indictment, conspiracy to commit wire fraud and bank fraud in violation of 18 U.S.C. § 1349 and 18 U.S.C. § 1343. In accordance with the plea agreement, the Government moved to dismiss the remaining nine counts.

         Trial counsel submitted 35 objections to the draft presentence investigation report (“PSR”) prepared by the United States Probation Officer (“USPO”) assigned to Alam's case.[2]After the USPO filed the report with the Court on March 28, 2014, counsel filed a 30-page brief containing 13 objections to the PSR, as well as a 35-page sentencing memorandum, a reply to the Government's sentencing memorandum, and a reply to the Court's request for additional information.[3] Most of this briefing focused on the proper method for calculating loss, and the ultimate calculation of the amount of loss. The amount of loss was the most significant factor affecting the total offense level and the sentencing range under the U.S. Sentencing Guidelines (“Guidelines”).

         The Court held an evidentiary hearing on April 21, 2014, regarding determination of the proper amount of loss. In the briefing and at the hearing, defense counsel objected to the losses as computed in the PSR, the loss calculation method advanced by the Government, the evidence submitted by the Government in support of its calculations, and the allegedly improper inclusion of certain homes in the loss calculation.[4] Counsel proposed alternative methods for calculating loss in order to achieve a lower total offense level, and objected to the Government's evidence of loss as unreliable, inadmissible, and a denial of Alam's right to confront witnesses.

         Following Tenth Circuit precedent, the Court determined “that actual loss is the amount of money owed to each lending institution as of the dates the borrowers defaulted on their payments” and the “credit against loss is the amount each property ultimately sold for.”[5] The Court rejected all of the defense's alternate loss calculation methods and, aside from sustaining two objections reducing the calculation of loss, largely overruled the defense's remaining objections as legally flawed or meritless.[6]

         After reviewing the parties' arguments and evidence, the Court adopted the figures summarized by the Government in Doc. 130-1, with two reductions reflecting Alam's objections that were sustained. It determined the total amount of loss as $485, 192.70 and the total offense level as 22. The Court found the amount of loss associated with each property as follows:[7]

         Amount of loss for properties included as part of the convicted offense:

• 1244 S. Emporia $28, 479.46
• 2208 S. Glendale $39, 589.99
• 2050 Santa Fe $39, 739.52
• 8431 Hildreth $53, 568.16[8]
• 1044 S. Sedgwick $31, 758.10
• 2431 S. Lulu $40, 994.69
• 1510 N. Market $57, 042.00

         Amount of loss for properties considered as relevant conduct:[9]

• 354 S. All Hallows St. $16, 912.23
• 1901 E. Gary $40, 112.00
• 2664 Classen $44, 541.42
• 1118 S. Laura $31, 500.00
• 735 S. Elizabeth $13, 200.00[10]
• 5600 S. St. Francis $47, 755.13

         The Court also informed the parties that it was considering an upward variance, and directed that any objections to its memorandum include no more than five double-spaced pages and be filed by July 30, 2014. Defense counsel timely submitted a five-page response, incorporating by reference the issues raised in prior objections, memoranda, responses, and replies, and offering new arguments against a sentence above the recommended range.

         On August 11, 2014, the Court held a sentencing hearing and exercised its discretion to sentence Alam to a 72-month term of imprisonment, above the Guidelines' recommended range of 46-57 months, and five years of supervisory release. The Court also ordered restitution in the total amount of $258, 309.21.

         David Moses of Moses & Pate, L.L.C. represented Alam in his appeal. On appeal, counsel argued that the Court utilized an erroneous loss determination methodology that resulted in a higher loss, total offense level, and recommended sentencing range, and that the Court abused its discretion in varying upward from the recommended range.

         On August 14, 2015, the United States Court of Appeals for the Tenth Circuit affirmed Alam's sentence. The Tenth Circuit relied on United States v. Washington, [11] which also involved a scheme to purchase real estate in Kansas using fraudulently obtained mortgages, and held that “[w]here a lender has foreclosed and sold the collateral, the net loss should be determined by subtracting the sales price from the outstanding balance on the loan.”[12] The Tenth Circuit rejected Alam's arguments for a more favorable loss calculation methodology, and found that the Court “did not abuse its discretion in varying upward.”[13] The Supreme Court denied certiorari review on April 4, 2016.[14]

         Proceeding pro se, Alam filed the current motion under 28 U.S.C. § 2255 on March 30, 2017. Alam's motion alleges that he received ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and that the Government violated his due process rights by failing to disclose victim statements under 18 U.S.C. § 3664. Alam attached 166 pages of background and legal argument to his motion, filed a 74-page reply to the Government's response, and filed over 100 pages of exhibits.[15] A review of the current briefing, as well as the record and files of this case, conclusively shows that Alam is not entitled to relief on the issues decided below. Alam's motion to vacate is denied in part, and further briefing is ordered regarding Alam's allegation that trial counsel withheld evidence from the Government.

         II. Legal Standards

         Title 28 U.S.C. § 2255 allows a “prisoner in custody . . . claiming the right to be released” to petition the court to vacate, set aside, or correct a sentence on various grounds, including where “the sentence was imposed in violation of the Constitution or laws of the United States.”[16] A § 2255 motion is not an avenue for parties to challenge the proper calculation of restitution where those calculations did not also affect the prison sentence.[17] When alleging constitutional error, “the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the verdict.”[18] When alleging non-constitutional error, “the petitioner must show a fundamental defect in the proceedings resulting in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process.”[19] The petitioner is entitled to a hearing on his motion, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”[20]

         “The Sixth Amendment guarantees a defendant the effective assistance of counsel at ‘critical stages of a criminal proceeding.' ”[21] This includes when a defendant pleads guilty, during sentencing proceedings, and on the first appeal as of right.[22] The Supreme Court established a two-prong test to evaluate whether a defendant received ineffective assistance of counsel in Strickland v. Washington.[23] Under this test, the defendant bears the burden of showing that he received ineffective assistance of counsel and “must show [1] that counsel's representation ‘fell below an objective standard of reasonableness' and [2] that he was prejudiced as a result.”[24] “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.”[25] “To be entitled to a hearing on this claim, ” the petitioner “must have alleged facts which, if proven, would establish he received ineffective assistance of counsel.”[26] The Court, however, is “not required to hold evidentiary hearings in collateral attacks without a firm idea of what the testimony will encompass and how it will support a movant's claim.”[27]

         In evaluating whether counsel's representation fell below an objective standard of reasonableness, “substantial deference must be accorded to counsel's judgment.”[28] Counsel retains “wide latitude . . . in making tactical decisions, ” and the Court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”[29] “[T]he defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.”[30] To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”[31] “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”[32] “This requires that ‘[t]he likelihood of a different result must be substantial, not just conceivable.' ”[33]

         III. Analysis

         Alam's § 2255 motion argues that he received ineffective assistance of trial counsel, he received ineffective assistance of appellate counsel, and the Government failed to disclose victim statements pursuant to 18 U.S.C. § 3664. The Court addresses each argument below.

         A. Alam received effective assistance from trial counsel.

         Alam dedicates the bulk of his motion to arguing that he did not receive effective assistance from trial counsel. Generally, his allegations either attack his decision to plead guilty or counsel's actions or inactions relating to sentencing. He further contends that the cumulative effect of the representation constitutes ineffective assistance of counsel.

         Several of Alam's arguments require the Court to ignore prior representations that Alam made under oath. Thus, as a preliminary matter, the Court first addresses Alam's contention that he did not voluntarily enter into the plea agreement and his request that we ignore his prior representations and statements made in connection with the plea agreement, petition to enter the plea agreement, and change of plea hearing.

         1. Alam cannot show that he entered the plea agreement involuntarily or that the plea agreement contains false information or representations.

         “The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' ”[34] The “burden to show that his guilty plea was not knowing or voluntary” rests on the defendant.[35] “[C]oercion by the accused's counsel can render a plea involuntary.”[36] A guilty plea also may be involuntary if “an attorney materially misinforms the defendant of the consequences of the plea, ” falsely alleges “that promises or guarantees exist, ” or “if counsel informs the defendant that he has no choice, he must plead guilty.”[37] “[S]trong urging” does not invalidate a guilty plea.[38] When a guilty plea is entered based on advice of counsel, its voluntariness “depends on whether counsel's advice ‘was within the range of competence demanded of attorneys in criminal cases.' ”[39]

         Alam claims that counsel threatened that Alam's wife would be indicted if he did not plead guilty, and that counsel advised him to plead guilty based on impermissible factors and without learning the facts of the case. These allegations conflict with Alam's prior representations and affirmations under oath, which he has failed to sufficiently contest.

         The “colloquy between a judge and a defendant before accepting a guilty plea is not pro forma and without legal significance. Rather, it is an important safeguard that protects defendants from incompetent counsel or misunderstandings.”[40] Statements made by a defendant at the plea hearing “carry a strong presumption of verity, ” and ordinarily may not be repudiated.[41] Although there is no per se rule rendering a defendant's statements “uniformly invulnerable to subsequent challenge, ”[42] representations made by the defendant, his lawyer, and the Government, “as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceeding.”[43] A later attack on the voluntary nature of a defendant's guilty plea “is subject to summary dismissal” if the petitioner merely asserts “conclusory allegations unsupported by specifics” or “contentions that in the face of the record are wholly incredible.”[44] A defendant seeking to repudiate prior sworn statements is entitled to “an evidentiary hearing only in the most extraordinary circumstances.”[45]

         Until this motion, Alam repeatedly represented that he voluntarily chose to plead guilty after consultation with his attorney regarding the facts of the case. His current assertions are conclusory, unsubstantiated, and wholly incredible in light of the record. Nothing in the briefing, record, or files in this case supports Alam's claims and there is no valid, believable reason to justify a departure from his prior representations.[46]

         a. Coercion

         Alam's brief alleges that trial counsel threatened that Alam's wife would be indicted if he did not plead guilty, that pleading guilty “was an act singularly aimed at minimizing the ‘damage' ” to his wife, and that “[b]ut for the coercion, it is a reasonable probability, if not a certainty, ” that he “would not have agreed to the terms of the plea agreement.”[47]

         Alam's prior representations plainly state that he was not threatened or coerced. The plea agreement, signed by Alam, explicitly “acknowledges that he has read the plea agreement, understands it and agrees it is true and accurate and not the result of any threats, duress or coercion, ” and that he “is entering into this agreement and is pleading guilty because [he] is guilty and is doing so freely and voluntarily.”[48] Alam swore that he offered his plea “freely and voluntarily, ” and that he “read, understood, and discussed with [his] attorney, each and every part of [the] Petition to Plea Guilty, and that the answers which appear in every part of [the] Petition are true and correct.”[49] Likewise, when asked by the Court if it was his decision to plead guilty, Alam responded with an unwavering, “Yes.”[50]

         Not only do Alam's recent allegations contradict his sworn statements, but they also conflict with other allegations he makes in the same brief. Alam claims that he “agreed to plea guilty” in May 2013, and instructed counsel to negotiate a plea agreement at that time.[51] The alleged threat to his wife did not occur until October 2013.[52] It is illogical that Alam agreed to plead guilty and instructed counsel to negotiate a plea agreement in May based on a threat that had not yet been made. While a defendant may change his mind before actually pleading guilty, nothing in the record suggests that Alam had such a change of heart and Alam does not make such an allegation. Alam offers only unsubstantiated, conclusory allegations, which, based on the record, are also wholly incredible. Accordingly, this claim is subject to summary dismissal.[53]

         b. Advising Alam to plead guilty

         Alam contends that counsel failed to properly investigate the charges, review discovery, or interview him regarding the facts of the case before advising him to plead guilty. Instead, he contends that counsel advised him to plead guilty on the day he was retained based on conviction rates for federal indictments, Alam's prior conviction for similar conduct, and the potential consequences if found guilty at trial. Alam claims that but for this advice, it is reasonably probable that he would not have pleaded guilty and would have insisted on going to trial.[54]

         Alam's sworn statements, as well as the briefing and oral argument in this case, demonstrate the wholly incredible nature of his assertion that counsel never interviewed him about the facts of the case.[55] Alam swore: “I told my lawyer all the facts and circumstances known to me about the charges made against me in the Superceding [sic] Indictment filed herein, ” “I believe that my lawyer is fully informed on all such matters, ” “I read the Superceding [sic] Indictment and have discussed it with my lawyer, ” “I fully understand every charge made against me, ” and “[m]y lawyer has counseled and advised me on the nature of each charge, on all lesser included charges, and on all possible defenses that I might have in this case.”[56] He also swore to the truth of the factual basis described in the plea agreement and repeated in the petition.[57] At the plea hearing Alam told the Court that he had sufficient time to discuss his case with counsel, he was satisfied with his counsel's handling of the case, he had “carefully gone over and discussed” the factual basis for the guilty plea with his counsel, and the factual basis for the guilty plea “accurately state[d] what happened and what [Alam] did.”[58] Alam did not question the accuracy of any part of the plea agreement, question the consequences of his guilty plea, appear in any way confused, or hesitate before pleading guilty. Alam has failed to assert facts sufficient to surmount the “formidable barrier” created by his prior sworn representations.[59]

         Alam's contention that trial counsel did not review discovery is similarly contradictory and unsupported by the briefing, record, and files in this case. Alam sometimes claims that counsel never reviewed any discovery, but at other times alleges that while counsel reviewed some discovery, he did not spend enough time reviewing discovery. The attachments submitted by Alam show, at a minimum, that his counsel reviewed at least some discovery, reviewed at least some witness statements, and obtained information relating to at least one co-defendant before Alam pleaded guilty.[60] A review of the briefing and transcripts from oral argument confirms the incredible nature of Alam's contention that counsel never investigated or discussed the facts of the case with Alam.[61]

         Alam unpersuasively argues that his decision to plead guilty should be set aside because counsel advised that Alam likely would be found guilty at trial because of his prior conviction for similar conduct and the high conviction rate for federal crimes. Counsel also advised that Alam would likely receive a harsher sentence if found guilty at trial. Alam contends that he decided to plead guilty based on these impermissible factors. The Federal Rules of Evidence allow the presentation of evidence of prior crimes under certain circumstances; accordingly, it is reasonable to consider past crimes of a similar nature.[62] The conviction rate for federal indictments is information a defendant would likely want to know; regardless, it is not unreasonable to share that information in discussing a potential plea.[63] Finally, Alam was indicted on ten counts, with the single count he pleaded guilty to alone carrying a 30 year maximum sentence.[64] Thus, Alam could have received a much harsher sentence had he proceeded to trial. Trial counsel did not act unreasonably.

         2. Counsel did not unreasonably fail to negotiate a more favorable plea agreement.

         Alam claims that he “would likely not have agreed to the terms of the plea agreement regarding the amount of loss” had trial counsel provided him effective assistance of counsel. He cites numerous actions counsel should have taken to obtain a more favorable plea agreement.[65]Alam appears to be confusing the plea agreement, which contained no specific terms relating to the amount of loss, with the PSR, which went into great detail on the amount of loss. The plea agreement does not include specific terms regarding “the amount of loss, ” but rather, specifically reserves the right for Alam “to present argument and evidence on the proper loss value” and the right to “appeal any loss amount determined by the Court.”[66] Alam cannot attack the validity of his guilty plea based on his subsequent unfavorable sentence, and he understood that if he received a sentence he did not like, he could not withdraw his plea and have a trial.[67] Nothing in Alam's contentions or the record in this case supports a finding that trial counsel's conduct fell below an objective standard of reasonableness.

         Additionally, Alam has not alleged any “facts that would suggest that his attorney could have successfully negotiated a plea agreement” on more favorable terms, or what those terms would have been.[68] Because of his failure to allege prejudice adequately, Alam's ineffective assistance of trial counsel claim further lacks “any colorable merit.”[69]

         3. Alam's additional arguments attacking the plea agreement are meritless.

         Alam argues that his counsel did not require the Government to prove its allegations before Alam pleaded guilty.[70] Inherent in the plea process, however, is the agreement that the government is not required to independently prove the elements of the offense and can instead conserve resources because the defendant admits to the factual basis underlying the offense.[71]

         Alam contends that counsel advised him to plead guilty to a sentence equal to or higher than a sentence he could have received if he had gone to trial and lost. First, Alam did not plead guilty to a specific sentence.[72] Second, Alam's 72-month sentence is below the applicable maximum sentence of not more than 30 years of imprisonment, and he avoided the risk of a guilty verdict on the nine dismissed counts. Counsel did not act unreasonably.

         4. Alam cannot show that trial counsel provided ineffective assistance in the sentencing proceedings.

         Alam makes numerous allegations against trial counsel that he claims support his ineffective assistance of counsel claim. The briefing, files, and records in this case conclusively show that Alam is not entitled to relief on the issues decided below.

         a. Inclusion of false allegations in the plea agreement, PSR, and Court's Sentencing Memorandum and Rule 32(h) notice

         Alam claims that trial counsel allowed false allegations from the indictment to be repeated in the plea agreement, the PSR, and the Court's Sentencing Memorandum and Rule 32(h) notice. His allegations do not support a claim for ineffective assistance of counsel.

         With regard to the plea agreement, Alam pleaded guilty to the allegations contained in the plea agreement and swore that the facts contained in the plea agreement are true. As discussed above, Alam cannot overcome the presumption of truth attached to these statements. His contentions relating to the PSR and Court's memorandum are discussed below.

         1) PSR

         Alam's contentions regarding allegedly false statements in the PSR are meritless. Counsel did not have control over which allegations the USPO included in the report. Still, counsel submitted 35 objections to the draft report, and filed 13 objections with the Court after the report was filed.[73] The PSR repeatedly recognizes Alam's denial of factual assertions, typically in a footnote.[74] The alleged inaccuracies without such footnotes are immaterial, [75]previously sworn to be true by Alam, [76] or objected to by counsel.[77]

         The defense's 30-page brief objecting to the PSR argued that the total offense level should be lower than reflected in the PSR, which included a base offense level of seven, with two upward adjustments.[78] The PSR reflected a 12-point adjustment for the amount of loss caused by Alam's participation in the fraudulent scheme and a four-point adjustment for his role as an organizer or leader.[79] Counsel devoted almost the entire brief to arguing that the 12-point adjustment for loss should be lower.

         Alam faults counsel for not also challenging the four-point adjustment and now denies the factual basis for the adjustment-that he recruited co-conspirators or served as a ring leader. Alam, however, admitted under oath to recruiting his co-conspirators, and co-defendants Ginyard, Dykes, Young, Pearson, Sr., and Pelz had previously represented that Alam recruited them.[80] Counsel did not unreasonably focus the defense's efforts on challenging the actual loss adjustment as it was the largest contributing factor to the total offense level and the other alleged inaccuracies were either immaterial or previously admitted as true.

         2) Court's memorandum (Doc. 132)

         That the Court quoted statements from the PSR that Alam now alleges are false similarly does not amount to ineffective assistance of counsel. In its Rule 32(h) notification, the Court identified reasons for a potential upward variance, including: (1) the seriousness of the offense, (2) the nine additional counts relating to the fraudulent scheme, (3) Alam's action in recruiting others, and (4) the fact that the offense “was committed while defendant was on probation from a conviction in this court of essentially the same conduct.”[81] The Court recognized its fourth reason as “especially serious.”[82] Aside from item (3), which Alam swore to be true under oath, the Court did not base its upward variance on any of the facts Alam now disputes.

         Litigants do not control the contents of the Court's orders. There are prescribed ways to communicate disagreements to the Court, and in this case, trial counsel followed the Court's instruction that objections to its memorandum be filed by July 30, 2014, and contain no more than five, double-spaced pages. Rather than rehash prior arguments, counsel incorporated the defense's prior objections and arguments by reference and utilized the limited space allowed to argue against an upward variance. Counsel's failure to object to the inclusion of immaterial facts that did not affect the total offense level or to facts Alam previously represented as true does not fall below an objective level of reasonableness.[83]

         b. Court rulings

         On pages 55-67 of his brief, Alam identifies numerous alleged failures of the Court. He asserts that the Court did not rule on certain arguments and objections and that counsel failed to object to the Court's “remarkably faulty, ” “arbitrary, ” and “trivial” rulings. Much of his brief is spent arguing why the Court utilized the wrong method for calculating loss or incorrectly calculated the amount of loss. The purpose of this proceeding is not to reexamine the Court's rulings on these issues, [84] but rather, to examine counsel's actions and whether they fell below an objective level of reasonableness resulting in prejudice to Alam.[85]

         Trial counsel repeatedly objected to the method of calculation as well as to the amount of loss determined for each property included in the total amount of loss.[86] The Court rejected counsel's methodology arguments and largely overruled counsel's objections relating to specific calculations.[87] Even if the Court inadvertently failed to rule on an objection, contrary to Alam's assertions, defense counsel filed a response to the Court's Sentencing Memorandum and Rule 32(h) Notice incorporating all of the defendant's prior objections, [88] and stated on the record at the sentencing hearing that counsel wanted “to make it clear that we aren't giving up any of the arguments that were raised concerning sentencing.”[89] Especially in light of the page limit for any response to the Court's memorandum, it is not unreasonable for counsel to incorporate by reference arguments already presented to the Court and advocate alternative arguments in favor of his client.

         c. Failure to object to improper calculation of restitution

         Alam argues that counsel failed to recognize and correct the Court's allegedly incorrect calculation of the amount of restitution, and due to these errors, Alam received a higher adjustment and total offense level under the Guidelines. Counsel did not act unreasonably.

         1) Total loss vs. restitution

         Loss and restitution are not always equivalent. The calculation of total loss under the Guidelines includes consideration of losses caused not only by the conduct underlying the offense of conviction but also other “relevant conduct.”[90] Restitution, on the other hand, is ordered “only for the loss caused by the specific conduct that is the basis of the offense of conviction.”[91] Accordingly, a district court may consider a wider range of conduct and losses for purposes of sentencing than it may include in a restitution order.

         In his briefing, Alam incorrectly assumes that the amount of restitution ordered, $258, 309.21, governs how many “points” are added for purposes of determining the applicable sentencing range, and attacks the calculations allegedly utilized to arrive at this number. But, it is the amount of total loss that governs the adjustment to the base offense level for purposes of sentencing-not the amount of restitution ultimately ordered.

         At the time of Alam's sentencing, U.S.S.G. § 2B1.1 called for a 12-point adjustment for a loss between $200, 000 and $400, 000, and a 14-point adjustment for a loss between $400, 000 and $1, 000, 000.[92] In determining the total loss, the Court considered the loss incurred on six properties purchased by Alarm's co-conspirators as relevant conduct, as well as the loss incurred on the seven properties included in the factual basis of the plea agreement as part of the fraudulent scheme. Based on evidence submitted by the Government and Alam's objections thereto, the Court calculated the total loss on the 13 properties at $485, 192.70.[93] Thus, under the 2013 Guidelines, 14 points were added to the total offense level, resulting in a total offense level of 22. The Court did not order restitution on the total amount of loss, [94] nor did it base its restitution order on the amount of loss summarized in Doc. 130-1. Instead, it simply ordered that Alam be jointly and severally liable for the amount each co-defendant had previously been ordered to pay in restitution.[95]

         As discussed above, Alam's counsel objected to the specific loss calculations for each of the 13 properties included in the calculation, and made clear that Alam did not waive any of his arguments regarding sentencing. Nothing in the briefing, record, or files of this case supports Alam's claim that counsel acted unreasonably or failed to object to the Court's calculations.

         2) Challenges to the restitution order alone

         A § 2255 motion provides relief to a prisoner in custody “claiming the right to be released”-it does not allow parties to challenge the proper calculation of restitution where the calculation of restitution did not also affect the prison sentence.[96] Alam identifies numerous alleged inconsistencies, errors in calculating restitution, and errors in identifying the proper party to receive restitution, and argues that he received ineffective assistance of counsel due to the alleged errors. To the extent his alleged errors affect only the proper amount of restitution, he cannot pursue those arguments here.[97]

         d. Failure to present legal arguments based on Kansas mortgage law

         Alam argues that trial counsel failed to craft a more detailed argument under K.S.A. § 60-2414(k) regarding the disposition of property under Kansas law and the proper method for calculating loss. Again, much of Alam's argument seems more geared toward re-litigating the Court's findings as opposed to his counsel's failure to pursue arguments. Indeed, trial counsel repeatedly asserted arguments based on the disposition of the subject houses after the buyers defaulted, including citing directly to K.S.A. § 60-2414(k).[98] Even if counsel raised this argument in a “timid and incurious manner, ”[99] as alleged, counsel's actions did not fall below an objective standard of reasonableness. Counsel's focus on different loss calculation arguments is entitled to a strong presumption of reasonableness, and it is assumed “that he did so for tactical reasons rather than through sheer neglect.”[100] Alam cannot overcome this presumption based on his current allegations and the record.

         Alam also faults counsel for not objecting to the Government's characterization that the lenders were “required” to bid on the properties at the sheriff's sale. The record shows that the Government did not represent that the lenders were legally mandated to bid. In context, it appears that use of the term “required” by the Government meant that in order to protect their interests, the lenders needed to control the subsequent disposition of the collateral. Alam cannot show that counsel's failure to object on this ground was unreasonable.

         In addition to advocating for the application of K.S.A. § 60-2414(k), counsel presented alternative arguments that would have resulted in much lower loss calculations and retained an expert to prepare a report to support one alternate argument. Ultimately, the Court adopted the Government's approach, supported by Tenth Circuit precedent, [101] and considered the amount the lenders subsequently sold the houses for in calculating the loss. A review of the briefing, records, and files in this case conclusively shows that Alam's representation did not fall below an objective standard of reasonableness.

         e. Failure to call witnesses, cross-examine the declarants of out-of-court statements, and object on the basis of insufficiency of evidence, and alleged violations of the confrontation clause

         Alam's arguments that his counsel acted unreasonably in allowing the Government to submit inadmissible hearsay to establish the amount of loss and allowing Alam's confrontation clause rights to be violated at the sentencing hearing lack merit. The Federal Rules of Evidence do not apply in sentencing, and “[t]he Supreme Court has made clear that the constitutional requirements mandated in a criminal trial as to confrontation and cross-examination do not apply at non-capital sentencing proceedings.”[102] Accordingly, Alam's objections on the basis of admissibility of the Government's exhibits and on the confrontation clause were properly overruled, and any alleged inadequacy of counsel relating to these claims is also meritless.[103]

         Alam also argues that trial counsel unreasonably agreed with the Government that neither party would be required to call their respective witnesses to the stand. According to Alam, if the Government's witness had testified, the Court would have learned that the Government's proof regarding loss relied on out-of-court statements, that these statements were unreliable (missing dates and other important details), and that no victims had submitted any claims of loss. This, according to Alam, proves that the Government's claim of total loss lacked legal foundation.

         First, whether the Government's proof relied on out-of-court statements is irrelevant as the Federal Rules of Evidence do not apply at sentencing.[104] Second, counsel contested the reliability of the evidence submitted by the Government by arguing that the exhibits failed to identify the amount of default for some properties, lacked dates, originated from non-lender entities, were prepared with information not provided by the lender, contained inaccurate information, had unknown authors, and were missing pages and information.[105]

         Third, Alam's contention that cross-examining the Government's witness would have revealed “the absence of any claim of loss submitted by the victims, ” rendering the Government's claim regarding the amount of loss without “legal foundation, ” relies upon a misunderstanding of the law. As discussed below, victims are not required to submit any “statement” or “affidavit” for purposes of determining loss, and the absence of an affidavit from the lenders does not mean that no loss occurred.[106] Because the Federal Rules of Evidence did not apply at Alam's sentencing the Government was not required to establish foundation before the Court could consider its evidence. Regardless, counsel already knew that no victim loss statements had been provided by the Government as counsel referred to this fact in briefing.[107]

         Counsel's agreement with the Government not to call their respective witnesses to the stand is a tactical decision entitled to substantial deference.[108] By not requiring the Government to present its witness, defense counsel secured an agreement that the defense also would not have to subject its expert witness to cross-examination. Further, had the Government's witness taken the stand, he may have been able to explain the discrepancies identified and argued by counsel. Alam has not asserted allegations sufficient to suggest that counsel's decision not to require the Government to put its witness on the stand fell below an objective standard of reasonableness, and his arguments regarding prejudice are hypothetical and conclusory.[109]

         f. Failure to compel Brady material

         Alam alleges his right to a fair trial was violated by the Government's improper withholding of victim statements in the sentencing proceedings in violation of Brady v. Maryland, [110] as well as trial counsel's failure to compel the Government to disclose these statements. Specifically, he argues that the Government had an obligation to obtain statements from the lender-victims, that it did obtain such statements, that it failed to produce the statements, that counsel failed to compel the production of the statements, and had counsel obtained the statements, the Court would not have reached the same conclusion concerning the amount of loss and the sentencing and restitution calculations.[111] Alternatively, Alam argues that if the Government failed to obtain statements then it violated the plea agreement. Alam's contentions are legally flawed, speculative, and rely on hypothetical evidence. The briefing, record, and files in this case conclusively show that Alam cannot meet either prong of Strickland.

         Alam's argument that the Government withheld evidence rests on the faulty premise that the lenders had a duty to provide victim statements. Citing paragraph 10 of the plea petition, Alam asserts that the Government had an obligation to obtain victim impact statements. Paragraph 10, however, states that Alam was “informed that the court may order [him] to make restitution in compliance with 18 U.S.C. § 3663 and § 3664.”[112] Nothing in the petition, plea agreement, § 3663, or § 3664 requires victims to provide statements. Indeed, “[n]o victim shall be required to participate in any phase of a restitution order.”[113] Section 3664 merely allows victims the opportunity to submit an affidavit identifying losses.

         Further, nothing in the record reflects that any statements were withheld. Instead, the record suggests that the Government produced the evidence relating to loss.[114] It was not unreasonable for counsel not to compel the production of documents there was no reason to believe existed. Further, Alam fails to suggest how he has been ...


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