United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD, UNITED STATES DISTRICT JUDGE
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.
§ 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.
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.
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.
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.
ASSISTANCE OF COUNSEL
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.
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).
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.
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. § 3664(h), does not
change the ...