Babar v. USA

Filing 43

ORDER: The petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 1 ) is hereby DENIED for the reasons set forth in the attached ruling. Signed by Judge Alvin W. Thompson on 3/31/17. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
SYED A. BABAR,
:
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
:
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Civ. No.

3:13-CV-01095(AWT)

RULING ON MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE
Petitioner Syed A. Babar (“Babar”), proceeding pro se, filed a
motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or
correct his sentence.

He makes two claims:

(1) that his

attorney’s advice to reject an initial plea agreement
constituted constitutionally ineffective assistance of counsel,
and (2) that Alleyne v. United States, 133 S. Ct. 2151 (2013),
rendered his plea invalid.

The court concluded that a hearing

was necessary and appointed counsel for Babar.

For the reasons

set forth below, the motion is being denied after that hearing.
I.

FACTUAL AND PROCEDURAL BACKGROUND
From 2006 to 2010, Babar was the ring leader of a mortgage

fraud ring that obtained millions of dollars in residential real
estate loans through the use of sham sales contracts, false loan

applications and fraudulent property appraisals.

The scheme

involved nearly 30 properties in Connecticut, most of which
ended up in foreclosure.

Babar’s conduct, and that of his co-

defendants, resulted in a loss of over $4 million to various
private lenders and to the Federal Housing Administration, which
insured many of the loans that were fraudulently obtained.
Babar was charged in a Second Superseding Indictment on
July 29, 2010. He had been arrested on the initial Indictment on
May 10, 2010. Jury selection was scheduled for March 14,
2011.

On February 1, 2011, Babar changed his plea to guilty on

all fourteen counts charged against him in the Second
Superseding Indictment.
Babar argued in his sentencing memorandum that the
recommended sentencing guidelines range of 108 to 135 months in
the Presentence Report was “harsher than the sentences received
by all the other co-defendants” and created a “sentencing
disparity” with “co-defendants who had significant roles during
the conspiracy.”

Def.’s Sentencing Mem. at 31.

Babar also

argued in his sentencing memorandum that a downward departure
was necessary to mitigate the allegedly cumulative effects of
overlapping sentencing enhancements pursuant to United States v.
Lauersen, 348 F.3d 329 (2d Cir. 2003), and United States v.
Jackson, 346 F.3d 22 (2d Cir. 2003).

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The court sentenced Babar to 120 months of imprisonment.
He appealed his sentence.
Cir. 2013).

U.S. v. Babar, 512 Fed.Appx. 78 (2

In his appeal, Babar made five arguments.

First,

Babar argued that the leadership role enhancement imposed at his
sentencing was not supported by sufficient factual findings.
Second, Babar claimed that his sentence was grossly
disproportionate to the lesser sentences received by his codefendants.

Third, he contended that the district court should

have given him an additional one-point reduction for his
acceptance of responsibility.

Fourth, he argued that he should

have received a downward departure for overlapping sentencing
enhancements.

Finally, he maintained that his sentence was

substantively unreasonable.

The Second Circuit found all of

Babar’s arguments unpersuasive and upheld the sentence.
II.

LEGAL STANDARD

Federal prisoners can challenge a criminal sentence
pursuant to 28 U.S.C. § 2255 “only for a constitutional error, a
lack of jurisdiction in the sentencing court, or an error of law
or fact that constitutes a fundamental defect which inherently
results in complete miscarriage of justice.”

Graziano v. United

States, 83 F.3d 587, 590 (2d Cir. 1996) (internal citation and
quotation marks omitted).

A petitioner may obtain review of his

claims if he has raised them at trial or on direct appeal; if
not, such a procedural default can be overcome by a showing of
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“cause” and “prejudice”, Ciak v. United States, 59 F.3d 296, 302
(2d Cir. 1995) abrogated on other grounds by Mickens v. Taylor,
535 U.S. 162 (2002) (quoting Wainwright v. Sykes, 433 U.S. 72,
87 (1977)), or a showing of constitutionally ineffective
assistance of counsel, see Murray v. Carrier, 477 U.S. 478, 48788 (1986); Johnson v. United States, 313 F.3d 815, 817 (2d Cir.
2002).
To prevail on an ineffective assistance of counsel claim,
the petitioner must show that his “counsel’s representation fell
below an objective standard of reasonableness” and that “there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.”
694 (1984).

Strickland v. Washington, 466 U.S. 668, 688,

“The court ‘must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable
professional assistance,’ bearing in mind that ‘[t]here are
countless ways to provide effective assistance in any given
case’ and that ‘[e]ven the best criminal defense attorneys would
not defend a particular client in the same way.’”

United States

v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990) (quoting
Strickland, 466 U.S. at 689).

Courts should not second-guess

the decisions made by defense counsel on tactical and strategic
matters.

See United States v. Luciano, 158 F.3d 655, 660 (2d

Cir. 1998).

“The court’s central concern is not with ‘grad[ing]
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counsel’s performance,’ but with discerning ‘whether, despite
the strong presumption of reliability, the result of the
particular proceeding is unreliable because of a breakdown in
the adversarial process that our system counts on to produce
just results.’”

Aguirre, 912 F.2d at 561 (quoting Strickland,

466 U.S. at 696-67) (internal citations omitted)).
III. DISCUSSION
A. Ineffective Assistance of Counsel
In Ground One Babar alleges that
Counsel rendered ineffective assistance when he advised
Babar to reject the government's plea offer and later
advised him to plead guilty in open Court to the 14 Counts
in the indictment which resulted in a longer sentence.
Sec. 2255 Mot., Mem. in Supp., Doc. No. 1-2, at 2 (“Doc. No. 12”).

Babar also alleges that he would have accepted the initial

plea agreement had he been advised properly.
In his post-hearing brief, Babar argues that (1) his
counsel, Attorney Hasse (“Hasse”), was ineffective when he
advised Babar to reject a plea agreement offered by the
government; (2) in the alternative, his counsel was ineffective
because he provided no advice on whether Babar should accept the
government’s offer; (3) his counsel was ineffective by allowing
him to lose the benefit of the third point for acceptance of
responsibility; and (4) his counsel was ineffective because he
failed to move for a third point for acceptance of

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responsibility.

The court finds each of these arguments

unpersuasive.
Babar was offered three plea agreements before ultimately
pleading guilty without a plea agreement.

The October 7, 2010

plea agreement contained a stipulation that the petitioner’s
advisory Sentencing Guidelines range was 97-121 months of
imprisonment, based on a Total Offense Level of 30.

In arriving

at that calculation, the parties included a three-level decrease
for acceptance of responsibility under Guidelines § 3E1.1.

The

agreement also included a stipulation of offense conduct, and a
waiver of Babar’s right to appeal or collaterally attack his
sentence if his sentence did not exceed 121 months of
imprisonment.
On December 3, 2010, government counsel advised Babar’s
counsel that the October 7, 2010 plea agreement would expire on
December 17, 2010.

The government advised Hasse that, if Babar

went to trial, it would make a substantial difference in the way
the government would have to prepare for trial, and that this
deadline was necessary in order to give the government an
appropriate amount of time to prepare.

Government counsel

stated that this deadline gave the government the minimum time
required.
On December 11, 2010, Hasse visited Babar to discuss that
deadline.

Hasse later requested an extension, and eventually
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government counsel agreed to extend the deadline for accepting
the first plea agreement to January 10, 2011.
When the October 7, 2010 agreement was not accepted by
January 10, 2011, counsel for the government sent the first of
two plea agreements dated January 11, 2011.

This revised plea

agreement also contained a stipulation of offense conduct.

It

stated that the parties had no agreement as to whether Babar
qualified for acceptance of responsibility under § 3E1.1.

It

contained a waiver of right to appeal or collaterally attack the
sentence if the sentence did not exceed 168 months of
imprisonment, a five-year term of supervised release and a
$175,000 fine.

Later that day, government counsel sent Hasse a

slightly revised plea agreement which had the same provisions
with respect to acceptance of responsibility and the appellate
waiver.
On February 1, 2011 Babar pled guilty to all counts in the
Second Superseding Indictment, without any plea agreement.

At

the plea hearing, Babar indicated that his mind was clear and
that he understood everything that was occurring in court.
T.2/1/11 at 8.

See

He advised the court that he had read and

discussed with his attorney the memorandum filed by the
government in connection with his plea.

See T.2/1/11 at 10-11.

Babar was asked whether he was “satisfied” to have Hasse
represent him.

T.2/1/11 at 10.

Babar answered “yes.”
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Id.

Subsequently, when Hasse noted that “There wasn’t an appeal
waiver,” Babar interjected, “That’s why I choose to do open
plea”.

T.2/1/11 at 17.

An attorney “must give the client the benefit of counsel’s
professional advice [on whether to plead]”, but “the decision
must ultimately be left to the client’s wishes.

Boria v. Keane,

99 F.3d 492, 497 (2d. Cir. 1996).
In his affidavit, Babar states with respect to the October
7, 2010 plea agreement that “I was prepared to accept the plea
offer but Hasse advised me to reject it stating, “it doesn’t
allow [him] to object to the enhancement.”
1-1, at 1.

Babar Aff., Doc. No.

During the evidentiary hearing Hasse testified about

his discussions with his client concerning this plea agreement:
Q. So you in fact advised Mr. Babar to reject this
plea agreement, did you not?
A. No.
Q. You advise[d] him to accept this plea agreement?
A. I don't advise anybody to accept or reject a plea
agreement. What I do is I explain to them the terms of
it. The ultimate decision is the Court's. This is a
recommendation made between the government and defense
counsel for the Court to consider in imposing sentence.
A whole lot of other things come into play. With
Mr. Babar a whole lot of things came into play as well.
And he went through the plea agreement. He would never
agree with all –
Q. Just so we're clear, you don't advise your clients
whether to plead guilty or not?
A. That's an ultimate decision that's up to the
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client.
Q. But you don't give them advice about whether to
enter into a plea agreement with the government or not?
A. I give them the benefits and drawbacks of whatever
decision they make. I also share with them some
background that I have with the Sentencing Guidelines,
with the sentencing judge and other things that come
into play when you have to make an important decision
like that.
5/16/2016 Evidentiary Hr’g Tr. page 23, line 9 to page 24, line
8.

The court finds this testimony credible, and it reflects

that Babar’s counsel did not give ineffective assistance.

The

petitioner made a zealous effort to persuade the court that his
former counsel was not credible but fell well short of
persuading the court that this was so.
Babar suggests that Hasse advised him to reject the
proposed plea agreements because he was interested in extending
the negotiations in order to increase his attorney’s fees.

He

points to deficiencies in Hasse’s recordkeeping and billing
practices and how high the fee ultimately was.

With respect to

Hasse’s visits to his client at Wyatt Detention Center, he
points to discrepancies between Hasse’s billing records and the
visitor log at Wyatt (failing to acknowledge that the Wyatt
records indicate Hasse visited Babar at the detention center on
more occasions than he actually billed for).

Babar argues that

Hasse was evasive when responding to questions from Babar’s new
attorney, but that was not the conclusion the court reached.
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Rather, the court concludes that, after reviewing the plea
agreements with his counsel, Babar rejected each one because
Babar had objections, and that the decision to reject each plea
agreement was one Babar made knowingly and voluntarily.

Babar’s

comments during the plea hearing (i.e., when he interjected that
the reason he was choosing to do an open plea was because there
was not an appellate waiver) reflect not only that particular
provisions were important to him, but also how actively involved
he was.

No one had put a question to Babar at the time he made

that statement.

He simply interjected.

The defendant’s second argument is that, in the
alternative, Hasse was ineffective by not providing any advice
to Babar as to whether he should accept the government’s plea
offer.

This alternative argument fails because it is based on a

false premise.

The petitioner argues that Hasse testified that

he provided no advice on the plea agreement.

That is not so.

Rather his testimony is as set forth above.
The petitioner’s third argument is that his counsel was
ineffective by allowing him to lose the benefit of the third
point for acceptance of responsibility under Guidelines
§ 3E1.1(b).

Babar argues that his counsel could have preserved

his right to the third point by conveying to the government
prior to the expiration of the deadline set by the government
that Babar remained willing to plead guilty, without a plea
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agreement if necessary.

He emphasizes the language in § 3E1.1

which reads: “by timely notifying authorities of intention to
enter a plea of guilty”.

U.S.S.G § 3E1.1.

But he does not

adequately take into account the additional qualifying phrase:
“thereby permitting the government to avoid preparing for trial
. . .”

Id.

Thus, as is also discussed below with respect

Babar’s fourth argument, a defendant cannot simply notify the
government that he or she wishes to plead guilty and thereby
reserve a third point while still causing the government to
prepare for trial.
The petitioner’s fourth argument is that his former counsel
was ineffective because, at sentencing, he failed to move for a
third point for acceptance of responsibility.

“The plain

language of § 3E1.1(b) refers only to the prosecution resources
saved when the defendant's timely guilty plea ‘permit[s] the
government to avoid preparing for trial.’”

United States v.

Lee, 653 F.3d 170, 174 (2d Cir. 2011) (citing U.S.S.G §
3E1.1(b)) (emphasis in original).

“[T]he Government is in the

best position to determine whether the defendant has assisted
authorities in a manner that avoids preparing for trial”.
U.S.S.G § 3E1.1 cmt. n.6.
The petitioner argues that the government was put on notice
that he intended to plead guilty before it was necessary for the
government to begin preparing for trial and that the government
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“did not receive any contrary indication before it determined
not to move for the third point.”
No. 29”) at 42-43.

Pet’r’s Post-Hr’g Br. (“Doc.

The petitioner also contends that the

government knew he intended to plead guilty no later than
December 17, 2010.

He states:

In its sentencing memorandum, it disingenuously wrote: “The
government had to prepare for a lengthy trial against Babar
long before he decided to plead guilty on February 1, 2011.
He did not timely notify the government of his intention to
enter a guilty plea, and as a result he did not permit the
government to avoid preparing for his trial and permit it
[to] save resources in avoiding such preparation.”
Doc. No. 29 at 18-19 (citing United States v. Babar,
3:10cr93(AWT), Doc. No. 694: Gov’t Sentencing Mem. at 18).
However, this was a multi-defendant case where Babar was
the central figure in the mortgage fraud ring, and it is clear
to the court, based on presiding over the trial, that the
government had no choice but to continue to prepare for trial as
if Babar was going to be part of the trial until such time as he
had entered a guilty plea.

In fact, at sentencing the court

observed that it would have been a “much more difficult trial”
had Babar gone to trial.

T.11/28/11 at 30.

There would have

simply not been sufficient time to do the necessary preparation
if the government had relied on an indication that Babar would
plead guilty but he chose not to do so.
As the government notes in its post-hearing brief, it had a
legitimate concern whether Babar would actually plead guilty.
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Moreover, the court agrees that “[t]he intent of the third point
. . . . is not to allow a defendant to say that they intend to
plead guilty, stall until the Government has prepared for the
trial, and then claim their third point.

The Petitioner’s

argument would nullify the third point provision from the
guidelines, allowing a defendant to reserve a third point early
in negotiations, while still causing the Government to prepare
for trial.”

Gov’t’s Resp., Doc. No. 30, at 6.

For these reasons, the court concludes that Babar did not
receive ineffective assistance of counsel.
B. Alleyne
In Ground Two Babar asserts that
[t]he Supreme Court's decision in Alleyne v. United States,
No. 11-9335, June 17, 2013 requiring an indictment to define
the facts that increase the floor of the punishment affixed to
the statute, renders Counts 1, 2-9 and Count 10 absent of the
actual notice requirement and in violation of the due process
clause of the Fifth Amendment and the notice and jury trial
guarantees of the Sixth Amendment, rendering his plea not
knowing and voluntary.

Doc. No. 1-2 at 9.
Babar takes as his starting point the fact that he was
convicted under statutes which provide that persons who commit
such offenses shall be fined and/or imprisoned.

See 18 U.S.C. §

371 (Count One: a fine and/or up to 5 years for conspiracy), 18
U.S.C. § 1343 (Counts Two through Nine: a fine and/or up to 10
years per count for wire fraud), and 18 U.S.C. § 1341 (Count
Ten: a fine and/or up to 20 years for mail fraud).
13

He then

asserts that the “minimum mandatory penalty” for each offense is
therefore a fine.

Consequently, he argues, the indictment must

define and a jury find facts that increase his punishment to
more than what he calls the “minimum mandatory penalty”, which
is a fine.

Babar states that “what the indictment does not list

are the facts (i.e. monetary amounts) that would aggravate the
minimum penalty from a fine to imprisonment.”

Doc. No. 1-2 at

14. He concludes that “[w]ith Alleyne now requiring the facts
that aggravate the minimum punishment to be put into the
indictment, Babar's indictment suffers a Fifth Amendment and
Sixth Amendment infirmity of failing to provide actual notice
and non-compliance with the due process clause.”

Doc. No. 1-2

at 16.
In Alleyne v. United States, 133 S. Ct. 2151 (2013), the
Supreme Court held that the constitutional rule announced in
Apprendi v. New Jersey, 530 U.S. 466 (2000), applies to facts
that increase the mandatory minimum punishment for a crime, and
that under Apprendi, any fact (other than the fact of a prior
conviction) that increases a mandatory minimum sentence “is an
‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.”

133 S. Ct. at 2155.

The Court explained

that “the essential Sixth Amendment inquiry is whether a fact is
an element of the crime,” and that “[w]hen a finding of fact
alters the legally prescribed punishment so as to aggravate it,
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the fact necessarily forms a constituent part of a new offense
and must be submitted to the jury.”

Id. at 2162. Because a fact

that increases the minimum “aggravates the legally prescribed
range of allowable sentences,” the Court held, “it constitutes
an element of a separate, aggravated offense that must be found
by the jury.”

Id.

The Court noted, however, that its ruling

did not “mean that any fact that influences judicial discretion
must be found by a jury,” and that it had “long recognized that
broad sentencing discretion, informed by judicial factfinding,
does not violate the Sixth Amendment.”

Id. at 2163.

The Court

of Appeals has held, post-Alleyne, that sentencing judges may
continue to apply the Guidelines based on facts found by a
preponderance of the evidence.

See United States v. Figueroa,

530 Fed. Appx. 40, 41 (2d Cir. 2013).
In Babar’s case, however, the statutes under which he was
convicted prescribe no mandatory minimum sentences, as
contemplated by Alleyne, only statutory maximums.

The loss

amounts in his case affected the advisory range under the
Sentencing Guidelines, but they did not affect his minimum
sentence.

His case is unlike Alleyne, where the defendant was

convicted and the sentencing judge made judicial findings that
increased the mandatory minimum sentence from five years to
seven years.

It was under those circumstances that the Supreme

Court held that such a finding was an element of the crime that
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must be found by a jury.

Thus Alleyne is inapposite, and Ground

Two must be dismissed because it lacks merit as a matter of law.
IV.

CONCLUSION

For the reasons set forth above, the motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. No.
1) is hereby DENIED.

The court will not issue a certificate of

appealability because Babar has not made a substantial showing
of the denial of a constitutional right.

See 28 U.S.C. §

2253(c)(2).
The Clerk shall close this case.
It is so ordered.
Signed this 31st day of March, 2017 at Hartford,
Connecticut.
___________/s/AWT___________
Alvin W. Thompson
United States District Judge

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