SOUELS v. UNITED STATES OF AMERICA
MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 8/24/2017. (tf, n.m.)
IN THE UNITED STATES DISTRICT
FOR THE DISTRICT OF NEW JERSEY
SEAN A. SOUELS,
Civil No. 1:15-cv-07563(JBS)
[Relates to Cr. No. 10-510-05 (JBS)
UNITED STATES OF AMERICA,
SIMANDLE, District Judge:
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner Sean Souels entered a plea of guilty on September 4, 2014, to
conspiracy to commit wire fraud contrary to 18 U.S.C. § 1343, in violation of 18
U.S.C. § 1349. United States v. Souels, Cr. No. 10-510-05 (JBS). Souels
admitted he conspired with others as part of a mortgage fraud scheme
involving properties in the Wildwood, New Jersey area. Upon his violation of
conditions of release, his bail was revoked on March 24, 2015, and he has been
in custody since March 27, 2015. [Docket Item 259.]
He was sentenced on May 14, 2015, to 46 months’ imprisonment
following a hearing in which the Court determined his Total Offense Conduct
(TOC) level was 23 and his Criminal History Category (CHC) was III, yielding an
advisory Sentencing Guidelines range of 46 to 57 months.
In this timely petition under 28 U.S.C. § 2255, Mr. Souels principally
asserts that his sentencing level was erroneous due to a loss calculation that
incorrectly determined the amount of loss under U.S.S.G. § 2B1.1(b)(1).
His amended petition, filed November 2, 2015 [Docket Item 3], seeks to
set aside his sentence pursuant to § 2255 based on three grounds, which may
be paraphrased as follows:
The sentence violates the Mandatory Victim Restitution Act of 1996
by using a short sale price rather than a fair market value to
determine the amount of the victim’s loss.
The sentence is illegal because the PSR incorrectly implied the
property was foreclosed when the victim financial institution
actually sold it at a short sale that canceled the original loans,
rendering the loss zero.
Defense counsel provided ineffective assistance in acquiescing to the
loss amount of $253,256.23 when in fact there was no loss to the
In pleading guilty to wire fraud conspiracy, without a written plea
agreement, on the eve of trial, Souels admitted, among other things, that he
conspired in 2007 with Darryl Henry and Jerry Smith to devise a scheme and
artifice to defraud a mortgage lender to grant purchase money mortgage loans to
a straw purchaser through means of a false mortgage application and HUD-1
settlement statement in connection with the sham purchase of Unit 203 at 401
East Stockton Road, Wildwood, New Jersey. (Tr. Sept. 4, 2014 at 23-37.)
In his detailed factual colloquy, Souels testified that he was guilty as
charged in Count One of the Second Superseding Indictment. (Id. at 23:18-24.)
He admitted he was the pastor of the ReBirth International Church in Union
County, New Jersey in 2007, and that he recruited a young naive female member
of his congregation, K.P., to be the nominal purchaser of this property at the New
Jersey shore under a scheme devised by co-conspirator Jerry Smith, who was
involved in the real estate business. (Id. at 23:25-25:4.) Souels provided false
information to a mortgage broker that K.P. was employed by his church as
“president of operations,” when in fact K.P. was not a church employee. (Id. at
25:3-10; 26:11-24.) Souels admitted he knew K.P. could not afford a mortgage
for $413,000, or even for a lesser amount such as $299,000. (Id. at 27:5-19.)
Souels admitted that he was aware K.P. brought no money to the closing,
and he does not dispute that the HUD-1 settlement statement falsely indicated
that she brought approximately $136,900 to the closing to serve as a down
payment. (Id. 28:8-29:19.)1 He admitted that he received approximately $30,000
of the illegal excess proceeds from the sale which funds were deposited by a coconspirator into K.P.’s account, to which Mr. Souels had access and expended
funds for his own benefit, including mortgage expenses for his own home and
car payments for his own car and for travel. (Id. at 29:20-34:14.) Through these
false and fraudulent documents, he caused Gateway Funding to release the
Indeed, Souels also admitted he encouraged Ms. K.P. to sign a false and
fraudulent Uniform Residential Loan Application and a false HUD-1 Settlement
Statement in connection with this mortgage loan application and closing. (Tr.
Sept. 4, 2014 at 34:22-35:5.)
purchase mortgage funds. (Id. 36:3-10). Petitioner does not dispute that the
false mortgage loan application and false HUD-1 settlement statement caused
the lender to extend two mortgage loans in the total amount of $478,256.26 for
K.P.’s straw purchase of Unit 203.
At sentencing, consistent with the Presentence Report for this property at
Unit 203, the loss figure was calculated to be $253,256.26. (PSR ¶39; Tr. May
14, 2015 at 23:7-8.) This loss figure was computed as follows. Gateway Funding
extended a total of $478,256.26 in two separate mortgage loans ($411,901.19
plus $66,355.07) for K.P.’s purchase of Unit 203. No mortgage payments were
made by anyone. West Coast Servicing had acquired the loan from Gateway in
a pool of loans in December of 2007. (Statement of Steve J. Kraemer, President
of West Coast Servicing, Inc., in FBI 302 by Special Agent Stefanowicz (Nov. 20,
2008), attached to Gov’t Br. at Ex. D (hereinafter "Kraemer Report")). After taking
possession of the property on April 10, 2008, West Coast Servicing resold the
property for $225,000.00, resulting in a loss of $253,256.26. (Final PSR ¶95);2
Kraemer Statement, supra, at Gov’t Br., Ex. D. The loss of $253,256.26 resulted
in a 12-level enhancement under U.S.S.G. § 2B1.1(b)(1)(G), to which there was
no objection at sentencing.3
The same figures appeared in the Draft PSR, attached to Gov’t Br., Ex. A, at
Souels’ counsel successfully objected to inclusion in the loss amount of a
second alleged mortgage fraud transaction involving Souels’ property at 27-29
Voorhees Street, Newark, New Jersey. At sentencing, after a hearing, the Court
sustained Souels’ counsel’s objection, finding that that mortgage transaction was
not relevant conduct within the charged conspiracy. Accordingly, the alleged
loss amount was reduced from $602,177.26 for the two properties to
Petitioner now alleges that this loss calculation was erroneous and that
his counsel was constitutionally ineffective for failing to object.
States has timely filed its Answer.4
The United States argues that the first two grounds, alleging a
miscalculation of loss in the PSR, should be dismissed for lack of jurisdiction
under § 2255, and that the third ground, alleging ineffective assistance of
counsel with regard to the loss amount determination, should be denied for lack
of merit. These arguments are next considered.
DISCUSSION OF LAW
Grounds One and Two: Subject Matter Jurisdiction
The United States seeks dismissal of Grounds One and Two for lack of
jurisdiction under § 2255. Petitioner seeks to use the vehicle of a § 2255
motion to seek review of an alleged methodological error in computing loss
amount under the mandatory restitution provision of the Antiterrorism and
Effective Death Penalty Act of 1996, 18 U.S.C. § 3663A and under the U.S.
Sentencing Guidelines, § 2B1.1(a)(2). The United States correctly points out
that these are claims of a non-constitutional dimension.
Section 2255 provides in pertinent part:
$253,256.26 for Unit 203. See Tr. May 14, 2015 at 7:7-21:11; 22:22-23:12. The
sentencing, as noted, was premised only on the loss caused by fraud in the
The Government’s Answer was timely under the Court’s prior Order filed
June 16, 2016, which granted an enlargement of time through July 25, 2016
[Docket Item 10]. Petitioner’s motion to deny a second continuance [Docket Item
13] is dismissed as moot.
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... may move the court... to vacate, set aside
or correct the sentence....
28 U.S.C. § 2255. The United States asserts most courts of appeals have held,
barring extraordinary circumstances, that claims of non-constitutional error in
the application of the Sentencing Guidelines cannot be raised in a § 2255
motion, Gov’t Opp. at 4-5 (citing Knight v. United States, 37 F.3d 769, 773 (1st
Cir. 1994); Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996) (per
curiam); United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999); United
States v. Payne, 99 F.3d 1273, 1281-82 (5th Cir. 1996); Grant v. United States,
72 F.3d 503, 505-06 (6th Cir. 1996); Buggs v. United States, 153 F.3d 439,
443 (7th Cir. 1990); Auman v. United States, 67 F.3d 157, 160-61 (8th Cir.
1995); United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994); Burke v.
United States, 152 F.3d 1329, 1331-32 (11th Cir. 1998). But cf. United States
v. Talk, 158 F.3d 1064, 1069 (10th Cir. 1998) (assuming without deciding that
claim of nine-level Guideline error that would reduce 108-month sentence by
more than 50 months is cognizable)). The Third Circuit does not appear to
have directly addressed this jurisdictional issue.
The Government thus argues that a motion under § 2255 is a collateral
attack upon the legality of a sentence, citing In re Dorsainvil, 119 F.3d 245,
249 (3d Cir. 1997), for which the grounds are limited, United States v.
Addonizio, 442 U.S. 178, 184 (1979). The § 2255 petition is to be granted only
if the sentence results “in a fundamental defect which inherently results in a
complete miscarriage of justice” or “an omission inconsistent with the
rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424,
428 (1962); United States v. Cleary, 46 F.3d 307, 311 (3d Cir. 1995).
In other words, the ordinary means for correcting sentencing errors in
the application of the U.S. Sentencing Guidelines or the determination of
obligations to victims under the restitution provisions of 18 U.S.C. §§ 3663A, et
seq., is by direct appeal, while sentencing errors of a constitutional dimension
which are alleged to be the basis for release from custody may be pursued
under the § 2255 process.
The Court agrees in part with the Government’s jurisdictional argument.
Because § 2255 textually requires that the petitioner be seeking release from
custody, it should be apparent that § 2255 does not provide a basis for
reviewing the amount of restitution to be paid to a victim under the Victim and
Witness Protection Act. Recalculating and reducing (or even eliminating) the
amount of restitution owed to a victim by a person in custody does not result
in the petitioner’s release from custody. Absent extraordinary circumstances
(such as perhaps confinement for contempt of court for willful refusal to pay
restitution), the reduction or elimination of a restitution obligation would not
negate the underlying conviction nor otherwise hasten release from custody.
Thus, Ground One seeking review of the amount of restitution is not cognizable
under § 2255, and it will be dismissed for lack of jurisdiction.
Ground Two, however, may lie within § 2255’s cognizable grounds. The
text of § 2255 does not confine itself to grounds alleging violations of the
Constitution; it also includes violations of federal law, choosing the phrase
“violation of the Constitution or laws of the United States,” 28 U.S.C. § 2255
(emphasis added). Here, Ground Two asserts that federal law -- the U.S.
Sentencing Guidelines -- was misapplied to greatly overstate the severity of the
crime at sentencing by awarding a 12-level increase in Total Offense Conduct
score under U.S.S.G. § 2B1.1(a)(2) when no points should have been counted
because there allegedly was no loss. If the ground has merit, petitioner’s Level
23 TOC score might have been reduced to Level 11, at least suggesting a large
reduction in his advisory range under the Sentencing Guidelines.5 In the event
of success, a new sentencing would be mandated and a new Sentencing
Guideline range determined by TOC 11, CHC III would become 12-18 months.
Presuming for the sake of jurisdictional argument a new sentence in that
range, the petitioner could be eligible for release from custody on time served,
as he has already been confined approximately 28 months since March 27,
2015, as noted above. It would appear to be within the contemplation of
Congress that the federal sentencing court may entertain a petition under §
2255 upon grounds of a violation of the U.S. Sentencing Guidelines where the
It is quite possible that even if the loss to the lender was reduced by zero,
Souels would have been held responsible for the financial loss to K.P., his
pastoral congregant, who was found to be an especially vulnerable victim under
U.S.S.G. § 3A1.1(b)(1) (PSR ¶¶ 144, 187) and who suffered financial loss at
Souels' hands. (Id. at 144.) Because the money Souels took from K.P.'s bank
account when he victimized her was also proceeds of the fraudulent mortgage
loans, it was not counted a second time in the loss calculation at sentencing.
The point need not be decided here because it is not determinative of the
relief could include release from custody upon resentencing. The Court thus
exercises jurisdiction over Ground Two, and it will discuss the merits below.6
Ground Three: Ineffective Assistance of Counsel
In Ground Three, Souels alleges that defense counsel was
constitutionally ineffective at sentencing by failing to object to the amount of
loss and restitution owed to the victim because the victim suffered no loss
when it sold the property and declared the entire mortgage debt paid from
those proceeds. Had counsel been effective, Souels argues, the result of his
sentencing would have been lower because there would have been no actual or
intended loss for purposes of U.S.S.G. § 2B1.1(b)(1).
To prevail on a claim of ineffective assistance of counsel, Petitioner must
demonstrate that (1) counsel’s performance was so deficient as to deprive him
of the representation guaranteed to him under the Sixth Amendment of the
U.S. Constitution, and (2) the deficient performance prejudiced the defense by
depriving the defendant of a fair trial or other criminal proceeding. Chaidez v.
United States, 133 S. Ct. 1103, 1107 (2013); Strickland v. Washington, 466
U.S. 668, 687 (1984).
While the Court does not have jurisdiction under § 2255 regarding
Ground One, Petitioner makes the same arguments as to Ground One as those
that are discussed herein on Grounds Two and Three pertaining to the
correctness of the loss determination, which the Court addresses upon the
Performance of counsel is constitutionally inadequate if it is not only
deficient but falls below “prevailing professional norms” and was “outside the
wide range of professionally competent assistance.” Id. at 690.
To show prejudice from counsel’s performance, Petitioner must
demonstrate that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Rainey v. Varner, 603 F.3d 189, 197-98 (3d Cir. 2010) (quoting Strickland, 466
U.S. at 694).
Determining Loss Upon Fraudulent Mortgage Loans
On both Grounds Two and Three, the threshold issue is whether the
Court’s determination of loss or intended loss from the fraudulent mortgage
loans on Unit 203 was incorrect under U.S.S.G. § 2B1.1(b)(1). Under §
2B1.1(b)(1), the loss is calculated as the “greater of actual loss or intended
loss.” Application Note 3(A)(i) thereunder defines the "actual loss" as the
“reasonably foreseeable pecuniary harm that resulted from the offense.”
Application Note 3(E)(ii) provides for a credit against the loss where collateral is
recovered by the victim and disposed before sentencing, in an amount
determined as follows:
In a case involving collateral pledged or otherwise
provided by the defendant, the amount the victim has
recovered at the time of sentencing from disposition of
the collateral, or if the collateral has not been disposed of
by that time, the fair market value of the collateral at the
time of sentencing.
This means that where the victim has recovered the loan collateral (here, title
to Unit 203) and then disposes of it (here, by sale), the loss amount is reduced
by the amount the victim recovered from disposition. If, however, the victim
has not disposed of the collateral before sentencing, Application Note 3(E)(ii)
directs that the sentencing judge use the fair market value of the collateral at
the time of sentencing. For such unsold collateral resulting from fraud
involving a mortgage loan, the court is to use the fair market value of the
collateral on the sentencing date, with a rebuttable presumption that the most
recent tax assessment value is a reasonable estimate of the fair market value.
U.S.S.G. § 2B1.1, Application Note 3(E)(iii). In all cases, a court "need only
make a reasonable estimate of the loss." U.S.S.G. § 2B1.1, Application Note
Applying these precepts, the Court determined that the loss was the
difference between the total amount of money loaned by West Coast
($478,256.26) and the amount the financial institution recovered when it
resold the property after re-taking possession ($225,000.00), which is a loss of
$253,256.26 related to K.P.’s fraudulent purchase of Unit 203.
West Coast Servicing acquired ownership and possession of the property
in April of 2008, when K.P. signed over the deed in exchange for $1,000.00 (See
Kraemer Report, supra, at 1.) This transaction gave the victim a deed in lieu of
foreclosure. West Coast Servicing repurchased the property rather than going
through a typically lengthy and costly foreclosure process. (Id.). Petitioner
does not dispute that no one ever made a payment upon the K.P. mortgages
and that they were in serious default when the lender took possession in April
The method by which the commercial lender reacquires the property
after a defaulted mortgage loan -- whether by foreclosure or deed in lieu of
foreclosure -- does not matter to the calculation of loss. The Third Circuit has
recognized that a defendant or third party making a “gratuitous transfer of the
property” back to the commercial lender does not alter the loss calculations.
United States v. Mummert, 34 F.3d 201, 204 (3d Cir. 1994).
There is likewise no dispute that the victim recovered $225,000.00 when
it sold Unit 203, and that this amount is deducted from its loss on the
fraudulent loans, pursuant to Application Note 3(E)(ii), supra. The Eighth
Circuit has recognized that it is proper to calculate the amount of loss upon a
fraudulent mortgage loan based on the “difference between the unpaid loan
balances and the prices obtained for the properties at sheriff’s sales or short
sales.” United States v. Mshihiri, 816 F.3d 997, 1011-12 (8th Cir. 2013).
Whether the lender-victim disposes of the property by sheriff’s sale or short
sale is immaterial to the loss calculation, since either shows the victim’s
recovery upon disposition of the real property collateral. See id.; see also
United States v. Engelmann, 720 F.3d 1005, 1013-14 (8th Cir. 2013). This
method, which this Court employed at sentencing, provides the best estimate of
the lender’s actual loss. Moreover, Application Note 3(E)(ii) uses the broad
term "disposition of the collateral", which does not limit the disposition to only
a foreclosure sale. Such disposition certainly includes a direct sale by the
lender to a new buyer, as in this case.
To suggest, as Souels does, that there is actually no loss because K.P.’s
loans were canceled, is irrational. Selling Unit 203 upon reacquiring the
collateral by deed in lieu of foreclosure constituted a commercially reasonable
disposition of the sort practiced every day by lending institutions seeking to cut
their losses. The lender’s loss of more than a quarter-million dollars was the
tangible consequence of making loans that would never have been made but for
this conspiracy to commit fraud. The expedience of obtaining a deed in lieu of
foreclosure does not change this fact.
The lender's successor, West Coast Servicing, having been defrauded,
was motivated to minimize its loss on the loans collateralized by Unit 203. A
short sale is a lawful disposition and nothing herein suggests that this short
sale was commercially unreasonable. This is precisely the sort of "disposition"
of collateral before sentencing referenced in Application Note 3(E)(ii), supra.
Where such a disposition has been made, the amount recovered is credited
against the gross loss, and no estimation of fair market value is required.
Finally, the determination of loss upon this fraudulent mortgage was not
only consistent with Application Note 3(E), but it also did not lead to some
unfair or unforeseeable result. Unit 203, like the other Wildwood properties
transacted in this conspiracy, had an artificially inflated selling price to which
the loan was addressed; these condominiums were "overbuilt by financially
distressed developers. . . . [co-conspirators] agreed on elevated sales prices for
financially distressed properties ... which were much higher than the
developer's buyout price so that there would be a large amount of proceeds to
the co-conspirators from the sales of the properties after the closings took
place." PSR ¶¶ 88-89. Thus, the sales price of Unit 203 was fraudulently
elevated to justify the larger loans of $411,901.19 and $66,355.07, which
generated substantial kickbacks for the co-conspirators, including Souels, from
the purchase money, above what the developer required as the true lower sales
price. When the Wildwood housing market collapsed in 2007-2008 due to the
many fraudulent transactions in this conspiracy (which included 23 units in
Wildwood Crest and North Wildwood, see PSR ¶ 95) and the nationwide
downturn, the victim faced a difficult sales environment into which it resold the
property for $225,000.00. This loss would not have occurred were it not for the
fraud -- the mortgage loans would have been paid and no distress sale would
have been necessary. The Court correctly determined the loss amount under
U.S.S.G. § 2B1.1(b)(1) and Application Note 3(E).
Thus, Souels has failed to show that the loss amount was incorrect and
that his attorney was deficient in failing to object. Counsel's performance was
not deficient in any way, and Souels was not deprived of the representation
guaranteed to him under the Sixth Amendment. Lastly, if counsel had
objected, such argument would have had no merit and would have been
rejected for the reasons stated above. The Petition will be denied as to Grounds
Two and Three.
For reasons stated above, the Petition under 28 U.S.C. § 2255 will be
dismissed for lack of jurisdiction as to Ground One, and denied upon the
merits as to Grounds Two and Three.
No certificate of appealability will be issued under 28 U.S.C. § 2253(c).
Petitioner has not made a substantial showing of the denial of a constitutional
right, as jurists of reason would not disagree with the outcome.
The accompanying Order will be entered.
August 24, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
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