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United States v. Tsuhako

United States District Court, D. Nebraska

October 24, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JORGE E. TSUHAKO, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD, UNITED STATES DISTRICT JUDGE

         This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. § 2255 (filing 309) filed by the defendant, Jorge E. Tsuhako. The motion was timely filed less than 1 year after the defendant's conviction became final. See § 2255(f). The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.

         BACKGROUND

         The defendant was convicted, pursuant to a guilty plea, of one count of conspiring to use unauthorized access devices, in violation of 18 U.S.C. § 1029(b)(2). His plea agreement stipulated that the total loss resulting from the conspiracy was $74, 772.50, and that his base offense level would be increased 8 levels pursuant to U.S.S.G. § 2B1.1(b)(1)(E), for a loss of more than $70, 000 but less than $120, 000. Filing 162 at 3-4. The plea agreement also provided that the offense level would be increased another 2 levels pursuant to § 2B1.1(b)(2)(A), because the offense involved more than 10 victims. Filing 162 at 4. The defendant testified at his change of plea hearing that he understood those aspects of the plea agreement. Filing 172 at 15-16. In his plea agreement, the defendant also "knowingly and expressly" waived "any and all rights to contest" his conviction and sentence, "including any proceedings under 28 U.S.C. § 2255, " except for the right to challenge his conviction and sentence "should the Eighth Circuit Court of Appeals or the United States Supreme Court later find that the charge to which the defendant is agreeing to plead guilty fails to state a crime" and the right to "seek post-conviction relief based on ineffective assistance of counsel." Filing 162 at 7.

         Fortunately for the defendant, the Sentencing Guidelines were amended before he was sentenced. See U.S.S.G. Amend. 791. So, the presentence report only assessed a 6-level increase based on the loss calculation, for a loss of more than $40, 000 but less than $95, 000. Filing 259 at 15. And it assessed a 2-level increase for 10 or more victims. Filing 259 at 16. The presentence report listed, in detail, the victims of the offense and the amounts of their losses. Filing 259 at 3-8. Based on an offense level of 19 and a criminal history category I, the presentence report set the Guidelines imprisonment range at 30 to 37 months. Filing 259 at 21. The Court adopted that finding, filing 258 at 1, and imposed a Guidelines sentence of 30 months' imprisonment, filing 257 at 2. The Court also ordered the defendant to pay restitution to five of the victims, in the amount of $5, 712.44. Filing 257 at 4.

         DISCUSSION

         The defendant's § 2255 motion raises four claims: two related claims of ineffective assistance of counsel, a claim that his previous counsel used privileged information against him, and a claim that payments toward his restitution obligation have not been properly credited. Filing 309 at 4-7. None of the defendant's claims have merit.

         INEFFECTIVE ASSISTANCE OF COUNSEL

         To establish a claim of ineffective assistance of counsel, the defendant must show that his attorney's performance was deficient and that this prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance can be shown by demonstrating that counsel's performance fell below an objective standard of reasonableness. Id. at 688. However, the Court's scrutiny of counsel's performance is highly deferential, because the Court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689.

         To satisfy the prejudice prong of Strickland, the defendant must show that counsel's error actually had an adverse effect on the defense. Gregg v. United States, 683 F.3d 941, 944 (8th Cir. 2012). The defendant must do more than show that the errors had some conceivable effect on the outcome of the proceeding. Id. Rather, the 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. Id. A "reasonable probability" is less than "more likely than not, " but it is more than a possibility; it must be sufficient to undermine confidence in the outcome of the case. Paul v. United States, 534 F.3d 832, 837 (8th Cir. 2008).

         The defendant raises two complaints with respect to his trial counsel: that she did not object to the 6-level enhancement based on the loss calculation, and that she did not object to the 2-level enhancement for the number of victims. Filing 309 at 4-5. But the facts he alleges in support of these claims are woefully insufficient. He alleges that he "was not shown the discovery that supported such amounts" and "only got the breakdown of $5, 712.44, " but "was punished for more than $40, 000." Filing 309 at 5.

         It is notable what the defendant does not allege: he does not allege that the losses from the conspiracy were less than $40, 000. Even assuming that the defendant was not shown "the breakdown" of the total loss calculation (and the Court has good reason to question that), the defendant's counsel did not perform deficiently, nor was the defendant prejudiced, by her supposed failure to do so. And the defendant acknowledged the amount of loss caused by the conspiracy in his plea agreement. The fact that restitution in this case was apportioned among multiple defendants, see 18 U.S.C. ยง 3664(h), does not change the ...


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