Lee v. USA

Filing 4

ORDER DENYING MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255 AND DENYING A CERTIFICATE OF APPEALABILITY. Signed by JUDGE LESLIE E. KOBAYASHI on 01/30/2017. Lee's Motion under 28 U.S.C. § 2255 to Vacate, Set As ide, or Correct Sentence by a Person in Federal Custody, filed June 20, 2016, is HEREBY DENIED. In addition, this Court DENIES a certificate of appealability (eps, )CERTIFICATE OF SERVICEParticipants regis tered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
ROBIN LEE,
)
)
)
Defendant.
_____________________________ )

CR 13-00860(05) LEK
CV 16-00331 LEK-RLP

ORDER DENYING MOTION TO CORRECT SENTENCE UNDER
28 U.S.C. § 2255 AND DENYING A CERTIFICATE OF APPEALABILITY
Before the Court is pro se Defendant/Petitioner
Robin M. Lee’s (“Lee”) Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody
(“§ 2255 Motion”), filed on June 20, 2016.

[Dkt. nos. 1030

(§ 2255 Motion), 1031 (memorandum in support).1]
Plaintiff/Respondent the United States of America (“the
Government”) filed its response to the § 2255 Motion (“Response”)
on August 31, 2016.
exhibits).]

[Dkt. nos. 1058 (Response), 1059 (sealed

After careful consideration of the § 2255 Motion,

the supporting and opposing memoranda, and the relevant legal
authority, Lee’s § 2255 Motion is HEREBY DENIED, and a
certificate of appealability is also DENIED, for the reasons set
forth below.
1

The § 2255 Motion is filed both in United States v. Lee,
CR 13-00860(05) LEK, and Lee v. United States, CV 16-00331 LEKRLP. In this Order, unless otherwise specified, all citations to
the record refer to the filings in CR 13-00860.

BACKGROUND
On September 12, 2013, Lee and seventeen others were
indicted in an eleven-count Indictment.

[Dkt. no. 1.]

The

Indictment alleged that the defendants, and others, “were members
and associates of a criminal organization in Hawaii known as the
‘USO Family,’ whose members and associates engaged in acts
involving narcotics trafficking, violence, threats of violence,
bribery, and fraud.”2

[Indictment at 2.]

Lee was indicted for

racketeering conspiracy, in violation of 18 U.S.C. § 1962(d)
(“Count One”), [id. at 7-9,] and seven counts of making false
claims to the United States Government, in violation of 18 U.S.C.
§ 287 (“Counts Five-Eleven”) [id. at 13-14].
Lee initially entered a plea of not guilty, [Minutes,
filed 11/20/13 (dkt. no. 183),] but, on July 30, 2014, he
withdrew his plea and entered a plea of guilty to Count One,
pursuant to a plea agreement.

[Dkt. nos. 416 (Minutes), 423

(Memorandum of Plea Agreement (“Plea Agreement”)).]

In the Plea

Agreement, Lee acknowledged that the conduct which formed the
basis of Counts Five-Eleven would be considered by this Court at
sentencing.

[Plea Agreement at ¶ 4.]

“Gary” Singh, Esq., represented Lee.

As of May 5, 2014, Gurmail
[CJA 20 form, filed 5/9/14

(dkt. no. 304).]

2

“The USO Family was formed in the State of Hawaii prison
system, but operates both inside and outside the State of Hawaii
Department of Public Safety prison system.” [Indictment at 3.]
2

This Court held Lee’s sentencing hearing on December 4,
2014.

[Minutes, filed 12/4/14 (dkt. no. 766).]

It accepted the

plea agreement and adopted the factual findings in the
presentence report.

[Presentence Investigation Report (“PSR”),

filed 12/12/14 (dkt. no. 774).]

The PSR found that Lee’s base

offense level for conspiracy to possess with intent to distribute
methamphetamine and marijuana was fourteen, with a two-level
increase because the conspiracy involved the distribution of a
controlled substance in a correctional facility, and another twolevel increase for bribing a law enforcement officer, resulting
in an adjusted offense level of nineteen because the offense
level was less than the minimum alternative level.
¶¶ 71-76.]

[Id. at

For the mail fraud and wire fraud activities, the

base offense level was seven, with a twelve-level increase for
the actual or intended tax loss, and a four-level increase for a
leadership role in the offense, for an adjusted offense level of
twenty-three.

[Id. at ¶¶ 77-82.]

The PSR took the greater of

the two offense levels, with a two-level adjustment, for a
combined adjusted offense level of twenty-five.

After a total

decrease of three levels for acceptance of responsibility, Lee’s
total offense level was twenty-two.
criminal history category was VI.

[Id. at ¶¶ 84-90.]

[Id. at ¶ 134.]

His

His

imprisonment range under the United States Sentencing Guidelines
(“U.S.S.G.” or “the Guidelines”) was therefore 84 to 105 months,

3

and his range for supervised release was 1 to 3 years.
¶¶ 202, 205.]

[Id. at

The PSR noted that restitution in the amount of

$353,810.00 to the Internal Revenue Service (“IRS”) was to be
ordered pursuant to the plea agreement.

[Id. at ¶ 212.]

This Court sentenced Lee to 105 months of imprisonment
and three years of supervised release, and it ordered Lee to pay
$353,810.00 in restitution and a $100 special assessment.

This

Court granted the Government’s oral motion to dismiss Counts Five
through Eleven.

[Minutes, filed 12/4/14 (dkt. no. 766).]

The

Judgment in a Criminal Case was filed on December 8, 2014.

[Dkt.

no. 769.]
Lee filed his Notice of Appeal on December 16, 2014.
[Dkt. no. 777.]

Lee’s counsel filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967) (“Anders Brief”), along with a
motion to withdraw as counsel.

[United States v. Lee, No. 14-

10553 (9th Cir.) (“Lee Appeal”), Appellant’s Opening Brief &
Motion to Be Relieved of Counsel Pursuant to Filing an Anders
Brief on Behalf of Appellant Robin Lee, filed 4/9/15 (dkt. nos.
8-1, 8-2).]

Lee filed a pro se supplemental opening brief on

June 1, 2015.

[Id., dkt. no. 15.]

The Ninth Circuit Court of

Appeals disposed of the appeal and granted the motion to withdraw
in a memorandum disposition, filed on August 5, 2015 (“Memorandum
Opinion”).

[Dkt. no. 920.]

The Ninth Circuit affirmed the

Judgment as to the amount of restitution ordered and declined to

4

review Lee’s ineffective assistance claims.

It dismissed the

remainder of Lee’s appeal in light of the valid waiver of his
appeal rights.
28, 2015.

The Ninth Circuit issued its Mandate on August

[Dkt. no. 922.]
In the § 2255 Motion, Lee argues that: 1) his guilty

plea “was unlawfully induced, not made voluntarily and without
understanding the consequences of the plea” (“Ground One”);
[§ 2255 Motion at 5;] and 2) he was denied the effective
assistance of counsel, in violation of the Sixth Amendment to the
United States Constitution (“Ground Two”) [id. at 6].

In

addition, although not identified as numbered grounds in the
§ 2255 Motion, Lee raises the following arguments in his
Memorandum in Support: prosecutorial misconduct deprived him of a
fair trial and of his right to appeal, in violation of the Fifth
Amendment (“Ground Three”); a challenge to the amount of the
restitution order (“Ground Four”); a challenge to the imposition
of the four-point enhancement for a leadership role
(“Ground Five”); and an argument that his sentence should be
overturned because it does not reflect his significant history of
mental illness and substance abuse and because it is
disproportionate to the sentences given to his co-defendants
(“Ground Six”).

Lee cites various events which occurred during

the course of this case that he alleges support each ground.

The

Government responds that all of Lee’s arguments, except for those

5

asserting ineffective assistance of counsel, are waived in light
of the Plea Agreement and the Ninth Circuit’s Memorandum Opinion.
The Government also argues that Lee has failed to establish that
his counsel rendered ineffective assistance.
STANDARD
Section 2255(a) states:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right
to be released upon the ground that the sentence
was imposed in violation of the Constitution or
laws of the United States, or that the court was
without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to
collateral attack, may move the court which
imposed the sentence to vacate, set aside or
correct the sentence.
This district court has described the standards applicable to
§ 2255 motions as follows:
A court may dismiss a § 2255 motion 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.”
R. 4(b), Rules Governing Section 2255 Proceedings.
A court need not hold an evidentiary hearing if
the allegations are “palpably incredible [or]
patently frivolous,” Blackledge v. Allison, 431
U.S. 63, 76 (1977), or if the issues can be
conclusively decided on the basis of the evidence
in the record. See United States v. Mejia-Mesa,
153 F.3d 925, 929 (9th Cir. 1998) (noting that a
“district court has discretion to deny an
evidentiary hearing on a § 2255 claim where the
files and records conclusively show that the
movant is not entitled to relief”). . . .
Leon v. United States, Civ. No. 15-00099 JMS-BMK, 2015 WL
3965895, at *4 (D. Hawai`i June 29, 2015) (some alterations in
6

Leon).
The issues raised in Lee’s § 2255 Motion are legal
issues that “can be conclusively decided on the basis of the
evidence in the record,” including the record of the underlying
proceedings.

See Mejia-Mesa, 153 F.3d at 929.

This Court has

previously concluded that an evidentiary hearing is not necessary
in this case.

See Order Denying Def.’s Request for an

Evidentiary Hearing & Denying Def.’s Request for the Appointment
of Counsel, filed 9/7/16 (dkt. no. 1062).
DISCUSSION
I.

Waiver and the Law of the Case
At the outset, the Government argues that this Court

cannot consider Lee’s arguments, except for those associated with
Ground Two, because Lee waived his right to bring such challenges
on appeal and on collateral review.

In the Plea Agreement, Lee

agreed:
14. Defendant is aware that he has the right
to appeal his conviction and the sentence imposed.
Defendant knowingly waives the right to appeal,
except as indicated in subparagraph “b” below, his
conviction and any sentence within the maximum
provided in the statute(s) of conviction or the
manner in which that sentence was determined, on
any ground whatever, in exchange for the
concessions made by the prosecution in this plea
agreement.
a.
Defendant also waives his right to
challenge his conviction or sentence or the manner
in which it was determined in any collateral
attack, including, but not limited to, a motion
brought under Title 28, United States Code,
7

Section 2255, except that defendant may make such
a challenge (1) as indicated in subparagraph “b”
below, or (2) based on a claim of ineffective
assistance of counsel.
b.
If the Court imposes a sentence
greater than specified in the guideline range
determined by the Court to be applicable to
Defendant, Defendant retains the right to appeal
the portion of his sentence greater than specified
in that guideline range and the manner in which
that portion was determined under Section 3742 and
to challenge that portion of his sentence in a
collateral attack.
[Plea Agreement at 9.]
This Court acknowledges that Lee has taken the position
that the Plea Agreement is invalid because, among other things,
he asserts that he did not enter into the Plea Agreement
knowingly and voluntarily.

However, the Ninth Circuit has

already held that Lee made a valid waiver of his right to appeal
his conviction and sentence, except for challenges to the amount
of the restitution order.

[Memorandum Opinion at 2.]

The Ninth

Circuit’s ruling “is the law of the case,” and this Court must
follow it in considering Lee’s § 2255 Motion.

See United States

v. Jingles, 702 F.3d 494, 498 (9th Cir. 2012) (citing In re
Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir. 1996) (“[T]he
decision of an appellate court on a legal issue must be followed
in all subsequent proceedings in the same case”); Odom v. United
States, 455 F.2d 159, 160 (9th Cir. 1972) (“The law in this
circuit is clear that when a matter has been decided adversely on
appeal from a conviction, it cannot be litigated again on a 2255
8

motion”) (some citations omitted)).
Because the Ninth Circuit has already ruled that the
waiver of Lee’s appellate and collateral review rights in the
Plea Agreement is valid, this Court DENIES Lee’s § 2255 Motion as
to Ground One.
Lee’s waiver of his appellate and collateral review
rights was subject to only two exceptions – ineffective
assistance of counsel and the imposition of a sentence that
exceeded either the statutory maximum or the Guideline range
applicable to him.

Because there was no express exception for

prosecutorial misconduct, Lee also waived any argument – on
appeal or on collateral review – alleging prosecutorial
misconduct.

See, e.g., United States v. Dykstra, No. 93-55747,

1994 WL 5726, at *2 (9th Cir. Jan. 7, 1994) (holding that the
defendant was “precluded from raising these issues [of alleged
prosecutorial misconduct] in her § 2255 motion because she made a
knowing and voluntary waiver of her right to appeal in her plea
agreement” (citing United States v. Broce, 488 U.S. 563, 569
(1989); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.
1993) (some citations omitted))); United States v. Coleman, Case
No. 11-cr-00904-PJH-1, 2015 WL 1548986, at *3 (N.D. Cal. Apr. 7,
2015) (noting in order dismissing a § 2255 motion that, “[b]y
entering the plea agreement, . . . movant waived any claim of
prosecutorial misconduct or request to withdraw the guilty

9

plea”).

In addition, Lee also waived the arguments that he

raises in Ground Five and Ground Six.
This Court therefore DENIES Lee’s § 2255 Motion as to
Ground Three, Ground Five, and Ground Six, based on the valid
waiver in his Plea Agreement of his appellate and collateral
review rights.
Ground Four challenges the amount of the restitution
order.

The Ninth Circuit held that Lee’s Plea Agreement did not

waive his right to challenge the amount of restitution.

However,

it also held that its “independent review of the record pursuant
to Penson v. Ohio, 488 U.S. 75, 80 (1988), disclose[d] no
arguable grounds for relief on direct appeal as to the amount of
restitution ordered by the district court.”
at 2.]

[Memorandum Opinion

In Penson, the United States Supreme Court stated:
Once the appellate court receives th[e Anders]
brief, it must then itself conduct “a full
examination of all the proceeding[s] to decide
whether the case is wholly frivolous.” [Anders,
386 U.S. 738.] Only after this separate inquiry,
and only after the appellate court finds no
nonfrivolous issue for appeal, may the court
proceed to consider the appeal on the merits
without the assistance of counsel.

488 U.S. at 80 (some alterations in Penson).

In Lee’s direct

appeal, the Ninth Circuit conducted a full examination of the
record and found that there was no nonfrivolous issue for appeal
of the restitution order.

Thus, the Ninth Circuit’s affirmance

of the restitution order precludes the arguments that Lee now

10

brings in Ground Four.
In the alternative, even if the Ninth Circuit’s holding
in the direct appeal only precludes arguments that Lee expressly
raised in his direct appeal, Ground Four raises the same
challenges to the restitution order as those presented in Lee’s
direct appeal.

In the § 2255 Motion, Lee argues that the

restitution award: included alleged losses from returns that were
not part of the conspiracy; exceeded the amount of the actual
loss because there was no proof that his co-conspirators received
and cashed all of the tax return checks; was disproportionate to
the restitution awards in his co-conspirators’ sentences; and
imposes a severe hardship on him during his incarceration, and
will continue to impose a severe hardship after his release.

He

also argues that all of these errors show that this Court
improperly determined the restitution amount, in violation of his
constitutional right to due process.
The law of the case doctrine would preclude this Court
from revisiting Lee’s challenges to the restitution order if the
are same arguments that the Ninth Circuit rejected in his direct
appeal.

The Anders brief that Lee’s counsel filed in his direct

appeal argued that the Ninth Circuit should vacate the
restitution award because: 1) the Government failed to meet its
burden of proof as to the amount of restitution because it
presented no facts or evidence to support the amount of the

11

award; [Lee Appeal, Anders Brief at 31-33;] 2) the amount of
restitution should not have included the alleged losses
associated with Counts Five-Eleven, which were dismissed; [id. at
33;] 3) although acts that Lee co-defendants committed were
considered in the determination of Lee’s sentence, he was the
only one ordered to pay the total restitution amount; [id. at 3334;] and 4) the restitution portion of Lee’s sentence was
substantively unreasonable [id. at 35-37].

Lee made similar

argument in the supplemental brief that he filed pro se.
Thus, the Ninth Circuit has already considered and
rejected the arguments that Lee raises in the § 2255 Motion
regarding the sufficiency of the evidence and the reasonableness
of the restitution award.

It does not appear that Lee raised the

due process argument during his direct appeal.

However, the

Ninth Circuit’s holding that there was no error in the
determination of the restitution award necessarily means that
Lee’s cumulative effect/due process argument also fails.
Because the Ninth Circuit has already affirmed the
restitution order, this Court DENIES Lee’s § 2255 Motion as to
Ground Four.

The only issue raised in the § 2255 Motion which is

properly before this Court is Ground Two, which alleges that Lee
received constitutionally ineffective assistance of counsel

12

before the district court.3
II.

Ineffective Assistance of Counsel
This district court has stated:
To prevail on an ineffective assistance
claim, a petitioner must show that (1) counsel’s
representation fell below an objective standard of
reasonableness, and (2) there is a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have
been different. Strickland v. Washington, 466
U.S. 668, 687-88 (1984). That is, the petitioner
must also show that the deficiency was
prejudicial. Id. at 692.
Counsel “is strongly presumed to have
rendered adequate assistance and made all
significant decisions in the exercise of
reasonable professional judgment.” Id. at 690.
But, a court need not determine whether counsel’s
performance was deficient before examining the
prejudice suffered by the petitioner as a result
of the alleged deficiencies. See id. at 697. In
other words, any deficiency that does not result
in prejudice necessarily fails.

United States v. Chaves, Cr. No. 14-00579 JMS (03), 2016 WL
5660327, at *4 (D. Hawai`i Sept. 28, 2016).

As to the

reasonableness prong, a court must “determine whether, in light
of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690.

As to the prejudice prong, “the

defendant must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and

3

This Court does not construe Lee’s § 2255 Motion as
alleging that his appellate counsel rendered ineffective
assistance.
13

would have insisted on going to trial.”
U.S. 52, 59 (1985).

Hill v. Lockhart, 474

Lee bears the burden of proof as to both

prongs of the Strickland analysis.

See Turk v. White, 116 F.3d

1264, 1265 (9th Cir. 1997).
Lee alleges multiple ways that Mr. Singh rendered
ineffective assistance during the period prior to the entry of
Lee’s guilty plea.
those claims.

The Strickland analysis is applicable to

See Hedlund v. Ryan, 815 F.3d 1233, 1250 (9th Cir.

2016) (quoting Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366,
88 L. Ed. 2d 203 (1985)).

Further, in the plea context, the

Strickland analysis “is based on ‘counsel’s judgment and
perspective when the plea was negotiated, offered and entered,’
not on a post-adjudication assessment of the case.”

Baldwin v.

Muniz, Case No. 14-cv-03271-JST(PR), 2016 WL 97454, at *6 (N.D.
Cal. Jan. 8, 2016) (quoting Premo v. Moore, 562 U.S. 115, 126
(2011)).

In Premo, the United States Supreme Court stated:
The art of negotiation is at least as nuanced as
the art of trial advocacy, and it presents
questions farther removed from immediate judicial
supervision. There are, moreover, special
difficulties in evaluating the basis for counsel’s
judgment: An attorney often has insights borne of
past dealings with the same prosecutor or court,
and the record at the pretrial stage is never as
full as it is after a trial. In determining how
searching and exacting their review must be,
habeas courts must respect their limited role in
determining whether there was manifest deficiency
in light of information then available to
counsel. . . .

562 U.S. at 125.
14

A.

Advising Lee to Accept the Plea Agreement
Lee’s primary argument regarding the plea stage is that

Mr. Singh rendered ineffective assistance because he advised Lee
to enter into a plea agreement which was not favorable to Lee.
Lee contends that Mr. Singh should have either tried to negotiate
terms that would have resulted in a lower offense level or taken
Lee’s case to trial.

Lee contends that a trial would have

resulted in a more favorable outcome.
Lee’s entry of a guilty plea resulted in a three-level
decrease in his offense level for acceptance of responsibility.
Without the reductions for acceptance of responsibility, Lee’s
Guidelines sentencing range would have been 110 to 137 months of
imprisonment, instead of 84 to 105 months.
Sentencing Table.

See U.S.S.G.

Lee could have received a sentence that was up

to thirty-two months longer than the sentence that he actually
received.

The Plea Agreement also included the Government’s

agreement to dismiss Counts Five-Eleven, which the Government did
at the sentencing hearing.

Had Lee proceeded to trial on all

counts and been convicted, he faced the possibility of
consecutive sentences, and he avoided that possibility because
the Plea Agreement only required him to plead guilty to
Count One.

Further, although not expressly stated in the Plea

Agreement, as part of the plea negotiations, the Government
agreed not to prosecute Lee for crimes that he allegedly

15

committed while being held at the Federal Detention Center in
Honolulu while his case was pending.

[Submission of Exhs. 4, 5,

and 7 in Supp. of Government’s Response to Section 2255 Motion,
filed 8/31/16 (dkt. no. 1059) (“Sealed Exhibits”), Exh. 5 (Decl.
of Counsel Gurmail “Gary” Singh (“Singh Decl.”)) at ¶ 8.]
Mr. Singh and Lee met with IRS Special Agent
Mark MacPherson (“Agent MacPherson”) in early July 2014, and
Agent MacPherson presented the evidence that the Government had
against Lee.

According to Mr. Singh, the evidence “included

transactions that could not be denied.”

[Id. at ¶ 9.]

Mr. Singh

advised Lee that going to trial would be “a very bad idea” and
that he would likely receive a lower sentence by pleading guilty
than he would receive if he went to trial and was convicted.
[Id.]

Mr. Singh’s determinations that he could not negotiate a

plea agreement which would result in a lower offense level and
that proceeding to trial would likely result in a higher sentence
were decisions of litigation strategy.

Lee has not identified

any evidence or legal support for his claim that Mr. Singh could
have negotiated for a lower offense level or that a trial would
have resulted in a more favorable outcome.
This Court FINDS that the Plea Agreement was beneficial
to Lee, and, under the circumstances which existed at the time of
the plea negotiations, Mr. Singh’s recommendation that Lee enter
into the Plea Agreement was within the range of professionally

16

competent assistance.

Because Mr. Singh’s advice was reasonable,

this Court does not need to address the second Strickland factor.
This Court CONCLUDES that Lee has failed to establish that
Mr. Singh rendered ineffective assistance when he advised Lee to
enter into the Plea Agreement.
B.

Preservation of Rights
Lee also argues that Mr. Singh rendered ineffective

assistance because he failed to preserve Lee’s right to appeal
and to seek collateral review.

Mr. Singh was aware that it was

standard practice for the United States Attorney’s Office to
include waivers of the defendant’s appellate rights and
collateral review rights in their plea agreements.

Mr. Singh did

not ask the Government to omit the waivers in Lee’s Plea
Agreement because he thought such a request would be futile,
particularly because Lee “had already changed his mind about
pleading guilty in the course of a plea hearing.”

[Id. at ¶ 6.]

Lee has not identified any evidence or legal authority supporting
his position that effective counsel could have preserved Lee’s
appellate and collateral review rights.
This Court FINDS that, under the circumstances which
existed at the time of the plea negotiations, Mr. Singh’s
decision not to request the exclusion of the standard appellate
and collateral review waivers from Lee’s Plea Agreement was a
litigation strategy decision that was within the range of

17

professionally competent assistance.

Because Mr. Singh’s

decision was reasonable, this Court does not need to address the
second Strickland factor.

This Court CONCLUDES that Lee has

failed to establish that Mr. Singh rendered ineffective
assistance because he failed to preserve Lee’s appellate and
collateral review rights in the Plea Agreement.
C.

Amount of Bribes Stipulated to
and Amount of Restitution Agreed to
The Plea Agreement states, inter alia, that: Lee agreed

to pay restitution in the amount of $353,810.00; [Plea Agreement
at ¶ 7.b;] and the parties stipulated that Lee was responsible
for more than $10,000 but less than $30,000 in bribes [id. at
¶ 11.b(i)].

As to the restitution amount, Lee alleges that:

1) Mr. Singh never went over the discovery materials with him;
2) when the IRS agent finally provided Lee with the discovery
materials, Lee discovered that there were forty tax returns that
he did not file; and 3) if those forty returns had not been
considered, it would have lowered the restitution amount by
$50,000.

As to the amount of bribes, Lee alleges that he

informed Mr. Singh that there were errors in the Plea Agreement –
and the PSR – but Mr. Singh failed to correct them.
Mr. Singh states that: both he and Lee’s former counsel
provided Lee with the discovery in this case; and he “discussed
the discovery at length with [Lee].”

[Singh Decl. at ¶ 3.]

Mr. Singh also denies that Lee expressed concern about the
18

stipulation to the amount of bribes, and Mr. Singh states that,
based on his careful review of the discovery, he believed that
Lee was involved in more than $10,000 worth of bribes.

Mr. Singh

“believed that, strategically, agreeing to the stipulation made
sense: it was likely to be imposed by the Court and Mr. Lee’s
owning up to it would likely gain some favor with the Court.”
[Id. at ¶ 5.]
There is a dispute between Lee’s claims that Mr. Singh
never reviewed the discovery with him and that Lee informed
Mr. Singh about the error in the amount of the bribes referred to
in the Plea Agreement and PSR and Mr. Singh’s contrary statements
in his declaration.

Ordinarily, an evidentiary hearing would be

required to resolve this factual dispute.

See United States v.

Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting that a
“district court has discretion to deny an evidentiary hearing on
a § 2255 claim where the files and records conclusively show that
the movant is not entitled to relief”).

However, an evidentiary

hearing is not necessary in the instant case because, even if
this Court accepts as true Lee’s statements that Mr. Singh did
not review the discovery with him and Mr. Singh did not act upon
the errors that Lee pointed out regarding the amount of bribes,
that alone is not sufficient to show that Mr. Singh rendered
constitutionally ineffective assistance.

19

Lee’s position is essentially that Mr. Singh was
ineffective because Mr. Singh’s analysis of the amount of bribes
and the amount of restitution Lee would ultimately be found
responsible for was incorrect.

Lee has the burden of proving

that Mr. Singh’s performance was deficient.

Although Lee alleges

that there were errors in the Plea Agreement’s and the PSR’s
discussions of the amount of bribes he was responsible for, Lee
does not identify what those errors were or how reasonable
counsel could have corrected them.

As to the restitution amount,

Lee alleges that there were over forty tax returns that he “did
not file.”

[Mem. in Supp. of § 2255 Motion at 13.]

Lee has not

identified these tax returns and, moreover, the restitution
amount was not limited to the fraudulent tax returns that Lee
himself filed.

Lee also assisted another inmate – Co-Defendant

Billy Wond – in preparing tax returns in Wond’s name, and Lee and
Wond directed the preparation and submission of tax returns
through surrogates outside of prison.

See PSR at ¶ 23.

Lee has

not identified any evidence or legal authority to support his
position that the forty tax returns should not have been
considered in determining his restitution amount.
This Court CONCLUDES that Lee has failed to carry his
burden to prove that Mr. Singh’s performance fell below an
objective standard of reasonableness as to the amount of the
bribes that Lee would be held responsible for and the amount of

20

Lee’s restitution.

In light of this Court’s ruling, it does not

need to address the second Strickland factor.

This Court

CONCLUDES that Lee has failed to establish that Mr. Singh
rendered ineffective assistance as to the amount of bribes that
Lee would be found responsible for and the amount of Lee’s
restitution.
D.

Joint and Several Liability for Restitution
In the context of Ground One, which alleges that he did

not knowingly and voluntarily enter into the Plea Agreement, Lee
alleges that Mr. Singh erroneously informed him that the
restitution amount would be divided among the co-conspirators.
[Mem. in Supp. of § 2255 Motion at 5.]

This Court must liberally

construe Lee’s filings because he is proceeding pro se.

See,

e.g., Pregana v. CitiMortgage, Inc., Civil No. 14-00226 DKW-KSC,
2015 WL 1966671, at *2 (D. Hawai`i Apr. 30, 2015) (“The Court
liberally construes the [plaintiffs’] filings because they are
proceeding pro se.” (citing Eldridge v. Block, 832 F.2d 1132,
1137 (9th Cir. 1987))).

This Court therefore construes the

§ 2255 Motion as also alleging that Mr. Singh rendered
ineffective assistance because he incorrectly advised Lee that
his co-defendants would be jointly and severally liable for the
restitution that this Court ordered.
In the § 2255 Motion, Lee alleges that Mr. Singh
“misinformed” him that the restitution amount “would be divided

21

accordingly among all co-conspirators.”
Motion at 5.]

[Mem. in Supp. of § 2255

Lee therefore assumed that he would have to repay

less than $50,000, and he pled guilty based on that assumption.
[Id.]

Mr. Singh acknowledges that he “did tell Mr. Lee that

restitution would be imposed joint and several with the other
defendants involved in the tax scheme.”

[Singh Decl. at ¶ 14.]

The following co-defendants were charged in Count One
with Lee, and their respective sentences included an order to pay
restitution to the IRS: Charlie Esera – $889.85; [Judgment in a
Criminal Case, filed 11/17/14 (dkt. no. 749), at 6;] Billy Wond –
$1,607.00 [Judgment in a Criminal Case, filed 12/19/14 (dkt. no.
791), at 6;] David Kahui – $692.00; [Judgment in a Criminal Case,
filed 2/10/15 (dkt. no. 848), at 6;] and Opherro Jones –
$4,576.00 [Judgment in a Criminal Case, filed 5/29/15 (dkt. no.
914), at 6].4

In addition, Agent MacPherson states:

M.G., a cooperating defendant, was ordered to pay
restitution to the IRS, joint and several with
Mr. Lee, under a different cause number. The
result of these restitution orders is Mr. Lee will
not be solely responsible for the restitution
amount ordered against him. The IRS will credit
Mr. Lee with any restitution paid by the other
defendants in their cases, and will similarly
credit him with any restitution paid by the nondefendant taxpayers who have a tax liability due

4

Feso Malufau was the only other co-defendant charged in
Count One, but he was not ordered to pay restitution. See
Judgment in a Criminal Case, filed 2/17/15 (dkt. no. 856), at 5.
Agent MacPherson states that they could not prove that Malufau
was involved in the tax scheme. [Sealed Exhibits, Exh. 7 (Decl.
of Special Agent Mark MacPherson (“MacPherson Decl.”)) at ¶ 3.]
22

to their involvement in Mr. Lee’s tax scheme. In
other words, the IRS will not “double-collect”
from the various defendants and taxpayers.
[MacPherson Decl. at ¶ 3.]
Thus, Mr. Singh correctly advised Lee that his
liability for the restitution award would be joint and several
with the other responsible defendants.

Mr. Singh did not advise

Lee that the portion of the restitution award that he would
ultimately be responsible for would only be $50,000; that was
Lee’s assumption.

This Court CONCLUDES that Lee has failed to

carry his burden to prove that Mr. Singh’s performance fell below
an objective standard of reasonableness as to the liability for
the restitution award.

Even if the Court assumes that Mr. Singh

did advise Lee that his portion of the restitution award would
only be $50,000 and that Lee would have gone to trial if he had
known it would be more, Lee has not identified any evidence or
legal authority which shows that a trial would have resulted in a
sentence with a lower restitution award.

This Court therefore

CONCLUDES that Lee failed to carry his burden of proof as to the
prejudice factor of the Strickland analysis.

This Court

CONCLUDES that Lee has failed to establish that Mr. Singh
rendered ineffective assistance as to the joint liability for the
restitution award.

23

E.

History of Substance Abuse and Mental Illness
Lee also argues that Mr. Singh rendered ineffective

assistance because he failed to raise Lee’s history of substance
abuse and mental illness as part of the defense.

Lee argues that

Mr. Singh could have used it as a mitigating factor to obtain a
lower sentence, or to obtain an acquittal by reason of insanity.
However, during sentencing, this Court found that Lee’s substance
abuse and mental health issues were not mitigating factors but
aggravating factors because they “would lead [Lee] to commit
other crimes or encourage [his] recidivism.”

[Trans. of 12/4/14

Sentencing (“Sentencing Trans.”), filed 1/27/15 (dkt. no. 837),
at 6.]

In addition, a defendant asserting an insanity defense

has a high burden of proof.

18 U.S.C. § 17 states:

(a) Affirmative defense. – It is an affirmative
defense to a prosecution under any Federal statute
that, at the time of the commission of the acts
constituting the offense, the defendant, as a
result of a severe mental disease or defect, was
unable to appreciate the nature and quality or the
wrongfulness of his acts. Mental disease or
defect does not otherwise constitute a defense.
(b) Burden of proof. – The defendant has the
burden of proving the defense of insanity by clear
and convincing evidence.
Even if the Court assumes that Lee’s substance abuse and mental
illness issues rose to the level of “a severe mental disease or
defect,” he has not identified any evidence which indicates that
those issues rendered him “unable to appreciate the nature and
quality or the wrongfulness of his acts.”
24

This Court agrees with

the Government that the extensive efforts Lee undertook to
conceal his criminal activity weigh heavily against a finding
that effective counsel could have raised a successful insanity
defense.
This Court CONCLUDES that Lee has failed to carry his
burden to prove that Mr. Singh’s strategic decision not to
incorporate Lee’s substance abuse and mental illness issues into
Lee’s defense fell below an objective standard of reasonableness.
Further, Lee has also failed to show that the results of the
proceeding would have been different if Mr. Singh had done so.
This Court therefore CONCLUDES that Lee has failed to establish
that Mr. Singh rendered ineffective assistance by failing to
incorporate Lee’s substance abuse and mental illness issues into
Lee’s defense.
F.

Failure to Withdraw Guilty Plea
This Court also liberally construes the § 2255 Motion

as alleging that Mr. Singh rendered ineffective assistance
because he failed to follow Lee’s directions to withdraw the
guilty plea.

Lee alleges that, had Mr. Singh withdrawn the

guilty plea and taken the case to trial, they would have been
able to prove that Lee “did not actually do all 297 fraudulent
returns allegated [sic] that was shown as evidence” in the
meeting with Agent MacPherson.
at 7.]

[Mem. in Supp. of § 2255 Motion

Lee does not expressly state when he supposedly

25

instructed Mr. Singh to withdraw his guilty plea.

However, he

appears to allege that he did so at some point prior to the
sentencing hearing.

See id. at 14 (alleging that counsel

“refused to withdraw his guilty plea, due to restitution, go over
his discovery and the evidence or Lee’s last request to delay
sentencing for purpose of reviewing his discovery” (emphasis
added)).

As previously stated, Lee entered his guilty plea on

July 30, 2014, and his sentencing was on December 4, 2014.
court accepted Lee’s guilty plea on August 14, 2014.

This

[Acceptance

of Plea of Guilty, Adjudication of Guilt and Notice of
Sentencing, filed 8/14/14 (dkt. no. 467).]

A reasonable

inference from Lee’s § 2255 Motion, read as a whole, is that he
alleges he directed Mr. Singh to withdraw his guilty plea at some
point after this Court accepted the plea, but before sentencing.
A defendant may withdraw his guilty plea “after the
court accepts the plea, but before it imposes sentence if:
(A) the court rejects a plea agreement under Rule 11(c)(5); or
(B) the defendant can show a fair and just reason for requesting
the withdrawal.”

Fed. R. Crim. P. 11(d)(2).

Lee essentially

states that he wanted to go to trial and that he believed he
could have proven that he did not prepare all 297 tax returns
that were ultimately the basis of the restitution award.
However, “[a] defendant’s mere change of heart about pleading
guilty, or unsupported claims of innocence, are insufficient to
26

allow him to withdraw his plea.”

United States v. Chong, 167 F.

Supp. 2d 1160, 1163 (D. Hawai`i 2001) (citing United States v.
Rios-Ortiz, 830 F.2d 1067, 1069-70 (9th Cir. 1987); United States
v. Turner, 898 F.2d 705, 713 (9th Cir. 1990)).5

Lee has not

identified any evidence which supports his position that he was
innocent as to some of the 297 fraudulent tax returns.

Moreover,

as this Court has previously discussed, the restitution award was
not based solely on fraudulent tax returns that Lee himself
prepared.
This Court CONCLUDES that, even assuming that Lee did
instruct Mr. Singh to withdraw his guilty plea, Lee has not
proven: Mr. Singh’s strategic refusal to move for the withdrawal
of the plea fell below an objective standard of reasonableness;
and the result of the proceeding would have been different if

5

In Rios-Ortiz, the Ninth Circuit stated:
[T]his court has repeatedly held that the decision
to permit or deny withdrawal of a guilty plea is
within the district court’s sound discretion.
Accordingly, this court has not overturned a
denial of a motion to withdraw a guilty plea
absent something more than the defendant’s change
of mind. Cf., Kadwell v. United States, 315 F.2d
667 (9th Cir. 1963) (refusal to permit withdrawal
of plea reversed where district court did not
inform defendant of nature of accusation or
consequences of plea; defendant was faced with
serious charge, was far from home, and had only
brief consultation with counsel appointed at time
of arraignment).

830 F.2d at 1069–70 (some citations omitted).
27

Mr. Singh had attempted to withdraw Lee’s guilty plea.

This

Court therefore CONCLUDES that Lee has failed to establish that
Mr. Singh rendered ineffective assistance by failing to file a
motion to withdraw Lee’s guilty plea.
G.

Government Cooperation
Lee also argues that Mr. Singh rendered ineffective

assistance because: 1) Mr. Singh advised him to cooperate with
the Government, even though Assistant United States Attorney
Jill Otake had determined that he was not a credible witness; and
2) Mr. Singh failed to seek a reduction in Lee’s sentence based
on Lee’s voluntary testimony before the grand jury in
August 2012.
First, it is unclear what cooperation Lee asserts he
engaged in based on Mr. Singh’s advice.

Lee’s testimony before

the grand jury in August 2012 was before Mr. Singh’s
representation began, and therefore was not undertaken pursuant
to Mr. Singh’s advice.

Lee agreed to meet with Agent McPherson

on two separate occasions.

However, Agent McPherson describes

the meetings as “a ‘reverse proffer,’ or a meeting during which
[he] advised Mr. Lee and his attorney of the evidence against
[Mr. Lee].”

[MacPherson Decl. at ¶ 2.]

Even assuming that Lee

did have the opportunity to cooperate with the Government at
those meetings and that Lee attended those meetings on the advice
of counsel, Lee does not establish either how his participation

28

in those meetings was detrimental to him or why Mr. Singh’s
advice to participate in those meetings was objectively
unreasonable.

Moreover, Lee has not shown that there is a

reasonable probability that the result of the proceedings would
have been different if Mr. Singh had not advised Lee to
participate in those meetings.

This Court therefore CONCLUDES

that Lee has failed to meet his burden of proof as to both parts
of the Strickland analysis.

Lee has failed to establish that

Mr. Singh rendered constitutionally ineffective assistance when
he advised Lee to cooperate with the Government.
Turning to Lee’s argument that Mr. Singh rendered
ineffective assistance by failing to seek a reduction in Lee’s
sentence based on Lee’s testimony before the grand jury, this
Court notes that:
A defendant’s cooperation may be taken into
account in calculating a Guidelines sentencing
range, after granting a motion for a departure
under § 5K1.1 of the Guidelines. Alternatively,
cooperation may be included as part of
consideration of § 3553(a) factors after a
Guidelines sentencing range is calculated. See
e.g., United States v. Zolp, 479 F.3d 715, 721
(9th Cir. 2007) (“the district court did not err
by considering [defendant’s] cooperation as part
of its analysis under 18 U.S.C. § 3553(a) rather
than as part of its advisory guidelines
calculation”). . . .
United States v. Ressam, 679 F.3d 1069, 1091 n.10 (9th Cir. 2012)
(some alterations in Ressam).

Only the Government may file a

motion for a downward departure based on substantial assistance

29

to authorities.

See U.S.S.G. § 5K1.1 (“Upon motion of the

government stating that the defendant has provided substantial
assistance in the investigation or prosecution of another person
who has committed an offense, the court may depart from the
guidelines.” (emphasis added)).

Thus, Mr. Singh could not file a

motion for a downward departure based on Lee’s grand jury
testimony.

At sentencing, Mr. Singh did argue that this Court

should consider Lee’s grand jury testimony in determining Lee’s
sentence.

In response to the Government’s argument that the

Court should impose a term of imprisonment on the high end of
Lee’s Guidelines sentencing range, Mr. Singh argued:
Judge, we will be asking this court to impose a
sentence on the lower end, and this is the reason
why: I’m his second attorney. My understanding is
that at one point he did cooperate. He did talk
to IRS agents. He did come out here. He went
before the grand jury.
[Sentencing Trans. at 8-9.]
Because Mr. Singh could not file a § 5K1.1 motion on
Lee’s behalf, and he did argue that this Court should consider
Lee’s grand jury testimony within the § 3553(a) factors, this
Court CONCLUDES that Lee has failed to establish that Mr. Singh’s
performance fell below an objective standard of reasonableness as
to the effect of Lee’s grand jury testimony on his sentence.
light of this Court’s ruling, it does not need to address the
second Strickland factor.

This Court CONCLUDES that Lee has

failed to establish that Mr. Singh rendered ineffective
30

In

assistance as to the grand jury testimony issue.
H.

Information Given to the Probation Office
Lee alleges that Mr. Singh rendered ineffective

assistance because Mr. Singh instructed him to give the United
States Probation Office false information.

Lee alleges that

Mr. Singh instructed him to falsely present himself to the
Probation Office as a victim who feared the USO Family because it
would make him appear more sympathetic at sentencing.
Supp. of § 2255 Motion at 12, 14.]

[Mem. in

The record, however, does not

support Lee’s claim that Mr. Singh told him to lie to the
Probation Office.6
The PSR states that “Lee was interviewed by
investigators on multiple occasions between 04/11/2012 and
07/14/2012.”

[PSR at ¶ 26a.]

During these interviews, Lee

indicated that he was intimidated by the USO inmates, and he was
afraid that they would hurt him if he did not work with them or
give them money.

Lee even stated that he relocated to Las Vegas

after his release so that USO could not control him and because
he feared for his safety.

[PSR at ¶ 26e.]

Lee made these

statements long before Mr. Singh represented him in the instant
case.

If Lee was lying at that time, it was not pursuant to any

alleged advice from Mr. Singh.

Lee does not point to any

6

Although not necessary to the analysis of this issue, the
Court notes that Mr. Singh denies telling Lee to lie to the
Probation officer. [Singh Decl. at ¶ 10.]
31

specific information about Mr. Singh’s alleged advice that Lee
lie to the Probation officer about being a victim of USO.
Further, based on Lee’s 2012 statements, his allegation that
Mr. Singh advised him to lie about being a victim of USO is
inherently implausible.
Even if the Court assumes that Lee’s 2012 statements
about USO were false and that Mr. Singh somehow encouraged Lee to
continue to paint himself falsely as a victim of USO, Lee has not
shown how the result of the proceedings would have been different
but for the allegedly unprofessional advice.

This Court

therefore CONCLUDES that Lee has failed to carry his burden of
proof as to both parts of the Strickland analysis.

This Court

CONCLUDES that Lee has failed to establish that Mr. Singh
rendered ineffective assistance by advising Lee to give false
information to the Probation Office.
I.

Failure to Request a Continuance of Lee’s Sentencing
Lee alleges that Mr. Singh rendered ineffective

assistance because he failed to request a continuance of Lee’s
sentencing hearing to allow him to review the discovery with Lee.
Even if the Court assumes that Mr. Singh should have requested a
continuance, Lee has not shown that the failure to request a
continuance was prejudicial to Lee.
As previously noted, although Lee contends that
Mr. Singh failed to provide him with the discovery, Lee himself

32

states that an IRS agent – presumably Agent MacPherson –
eventually provided him with the discovery.

Thus, if there was

any favorable evidence in the discovery that could have been
presented at Lee’s sentencing if he had more time to review the
discovery with Mr. Singh, Lee would have been aware of that
evidence by the time he filed his § 2255 Motion.

Lee’s position

is that he would have been able to show at sentencing that he was
not responsible for all of the bribes and IRS losses that were
attributed to him.

However, this Court has previously concluded

that Lee failed to show what errors Mr. Singh allegedly made in
calculating the amount of bribes that he believed Lee would be
held responsible for.

Lee has also claimed that he did not

prepare and file all of the 297 fraudulent tax returns attributed
to him for purposes of the restitution award.

However, this

Court has noted that the fact that Lee was not the person who
actually prepared or filed certain fraudulent returns does not
preclude criminal responsibility for them.
Section II.C.

See supra

This Court therefore CONCLUDES that Lee has failed

to establish that the result of his proceedings would have been
different if Mr. Singh had requested a continuance of Lee’s
sentencing to review the discovery with him.

This Court

CONCLUDES that Lee has failed to establish that Mr. Singh
rendered ineffective assistance by failing to request a
continuance of Lee’s sentencing.

33

J.

Failure to Make Objections
Finally, Lee contends that Mr. Singh rendered

ineffective assistance because Mr. Singh failed to raise
objections related to the sentencing proceeding, such as to the
draft PSR, the application of the Guidelines to the facts of this
case, or the Government’s sentencing statement.

Mr. Singh states

that he did not file objections to the PSR “because there were no
viable objections to be made.”

[Singh Decl. at ¶ 13.]

Lee does

not identity what specific objections a reasonable attorney would
have made.
This Court FINDS that, under the circumstances which
existed at the time of sentencing, Mr. Singh’s decision not to
make any objections was a litigation strategy decision that was
within the range of professionally competent assistance.

Because

Mr. Singh’s decision was reasonable, this Court does not need to
address the second Strickland factor.

This Court CONCLUDES that

Lee has failed to establish that Mr. Singh rendered ineffective
assistance because he failed to raise any objections related to
sentencing.
K.

Summary
This Court has rejected all of the alleged instances of

ineffective assistance.

This Court has carefully considered

Lee’s § 2255 Motion as a whole and, to the extent that the § 2255
Motion alleges any other instances of ineffective assistance that
34

this Court did not specifically address in this Order, this Court
also CONCLUDES that Lee failed to carry his burden of proof as to
those allegations.

Having rejected all of Lee’s allegations of

ineffective assistance, this Court DENIES Lee’s § 2255 Motion as
to Ground Two.
III. Certificate of Appealability
This district court has stated that:
In dismissing a § 2255 motion, the court must
also address whether [defendant/petitioner] should
be granted a certificate of appealability (“COA”).
See R. 11(a), Rules Governing Section 2255
Proceedings (providing that “[t]he district court
must issue or deny a certificate of appealability
when it enters a final order adverse to the
applicant”). A COA may issue only if the
petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
“The standard for a certificate of
appealability is lenient.” Hayward v. Marshall,
603 F.3d 546, 553 (9th Cir. 2010) (en banc),
overruled on other grounds by Swarthout v. Cooke,
562 U.S. 216 (2011). The petitioner is required
to demonstrate only “that reasonable jurists could
debate the district court’s resolution or that the
issues are adequate to deserve encouragement to
proceed further.” Id. (citation and internal
quotation marks omitted). The standard “requires
something more than the absence of frivolity, but
something less than a merits determination.” Id.
(internal quotation marks omitted).
The court carefully reviewed [the
defendant/petitioner’s] assertions and gave him
every benefit by liberally construing them. Based
on the above analysis the court finds that
reasonable jurists could not find the court’s
rulings debatable.
Leon v. United States, Civ. No. 15-00099 JMS-BMK, 2015 WL
35

3965895, at *9-10 (some alterations in Leon).

This Court FINDS

that reasonable jurists would not find that its rulings regarding
Lee’s § 2255 Motion are debatable.

This Court therefore DENIES

the issuance of a certificate of appealability.
CONCLUSION
On the basis of the foregoing, Lee’s Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody, filed June 20, 2016, is HEREBY DENIED.
In addition, this Court DENIES a certificate of appealability.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 30, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

UNITED STATES OF AMERICA VS. ROBIN LEE; CR 13-00860 LEK; CV 1600331 LEK-RLP; ORDER DENYING MOTION TO CORRECT SENTENCE UNDER 28
U.S.C. § 2255 AND DENYING A CERTIFICATE OF APPEALABILITY

36