Nicholson v. USA

Filing 14

OPINION AND ORDER: For the foregoing reasons, Petitioner has failed to establish his entitlement to habeas relief pursuant to 28 U.S.C. § 2255. Accordingly, the petition is DENIED. In addition, because Petitioner has not made a substantial s howing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Clerk of the Court is respectfully directed to enter judgment in favor of Respondent and to close this case. (Signed by Judge Richard J. Sullivan on 9/22/2014) (mro); [*** NOTE: Also docketed in related Criminal Case 09-CR-414(RJS), see Doc.#99. ***] Modified on 9/22/2014 (bw).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No. 11-cv-3835 (RJS)
No. 09-cr-414 (RJS)
_____________________

JAMES NICHOLSON
Petitioner,
VERSUS

THE UNITED STATES OF AMERICA,
Respondent.
___________________
OPINION AND ORDER
September 22, 2014
___________________
RICHARD J. SULLIVAN, District Judge:
James Nicholson (“Petitioner”) brings
this petition for the issuance of a writ of
habeas corpus pursuant to 28 U.S.C. § 2255,
challenging the sentence imposed by the
Court after Petitioner pleaded guilty to
securities fraud, investment adviser fraud,
and mail fraud. For the reasons set forth
below, the petition is denied.
I. BACKGROUND
A. Facts
On April 23, 2009, a grand jury returned
a four-count Indictment charging Petitioner
with: (1) securities fraud, in violation of 15
U.S.C. §§ 78j(b) and 78ff (Count One); (2)
investment adviser fraud, in violation of 15
U.S.C. §§ 80b-6 and 80b-17 (Count Two);

(3)
mail
fraud,
in
violation
of
18 U.S.C. §§ 1341 and 1342 (Count Three);
and (4) unlawful structuring of monetary
transactions
to
evade
reporting
requirements,
in
violation
of
31 U.S.C. § 5324 (Count Four). 1
(See
1

Unless otherwise indicated, citations to docketed
items refer to those materials that appear on ECF in
Nicholson v. United States, No. 11-cv-3835 (RJS)
(S.D.N.Y.). However, the facts are drawn principally
from the record in Petitioner’s underlying criminal
case, United States v. Nicholson, No. 09–cr-414
(RJS) (S.D.N.Y.), including the Indictment (09-cr414, Doc. No. 6 (“Indict.”)), the transcript of
Petitioner’s change of plea hearing (09-cr-414, Doc.
No. 28 (“Plea Tr.”)), and the transcript of Petitioner’s
sentencing hearing (09-cr-414, Doc. No. 79 (“Sent.
Tr.”)). The Court has also considered Petitioner’s
memorandum of law in support of his petition (Doc.
No. 2 (“Pet.”)), the government’s memorandum of

Indict. ¶¶ 10–18.) Specifically, the
Indictment alleged that Petitioner was the
president and senior portfolio manager of
Westgate Capital Management LLC
(“Westgate Capital”), an investment adviser
responsible for managing the funds of
several underlying investment vehicles on
behalf of investors. (Indict. ¶¶ 1–2.) To
execute the fraudulent scheme, Petitioner
made false statements to induce prospective
clients to invest with Westgate Capital,
failed to invest investors’ funds as promised,
and
misappropriated
and
converted
investors’ funds to his own benefit and the
benefit of others. (Indict. ¶ 3.) Petitioner
ultimately “caused investors to lose more
than $150 million.” (Indict. ¶ 7.)

§ 2B1.1(a)(1); (iii) an increase of six offense
levels was warranted, pursuant to U.S.S.G.
§ 2B1.1(b)(2)(C), because his offense
involved 250 or more victims; (iv) an
increase of two levels was warranted,
pursuant to U.S.S.G. § 2B1.1(b)(14)(A),
because he derived more than $1,000,000 in
gross receipts from one or more financial
institutions as a result of the offense; and (v)
an increase of four levels was warranted,
pursuant to U.S.S.G. § 2B1.1(b)(17)(A), 2
because Petitioner was an investment
adviser at the time of the offense and the
offense involved a violation of securities
law. (See Plea Agrt. at 4–5; Plea Tr. at
26:16–27:1.)
The Plea Agreement further specified
that the parties disagreed about the loss
amount for sentencing purposes pursuant to
U.S.S.G.
§ 2B1.1(b)(1),
with
the
government contending that the loss to
victims was $100–200 million and Petitioner
asserting that the loss was $7–20 million.
(Plea Agrt. at 4.) As a result of this
difference, the government contended that
Petitioner’s total offense level was fortytwo, resulting in an applicable Guidelines
range of 360 to 540 months’ imprisonment.
(Id. at 5.) Petitioner, by contrast, argued that
his total offense level was thirty-six,
yielding an applicable Guidelines range of
188 to 235 months’ imprisonment. (Id. at 4–
5.) Finally, the Plea Agreement contained
an appellate and collateral attack waiver,
whereby Petitioner agreed that he would
neither directly appeal nor challenge under
28 U.S.C. § 2255 or § 2241 any sentence

On December 11, 2009, Petitioner
pleaded guilty to Counts One, Two, and
Three of the Indictment pursuant to the Plea
Agreement. (Plea Tr. at 29:4–21.) The Plea
Agreement provided for the dismissal of
Count Four of the Indictment, the
structuring charge (Plea Agrt, at 2), which
carried a statutory maximum sentence of
120 months’ imprisonment, see 31 U.S.C.
§ 5324(d)(2). As a result of this dismissal,
Petitioner faced a total combined maximum
sentence of forty-five years’ imprisonment,
rather than a total maximum sentence of
fifty-five years’ imprisonment. (Opp’n at
4.) The Plea Agreement also included the
parties’
stipulations
regarding
the
application of the United States Sentencing
Guidelines (“U.S.S.G.”) to Petitioner. (See
Plea Agreement at 3–5.) Among other
things, the parties stipulated that (i)
Petitioner had zero criminal history points
and was therefore in criminal history
category I; (ii) Petitioner’s base offense
level was seven, pursuant to U.S.S.G.

2

Under the current version of the Guidelines, the
investment adviser enhancement is found in U.S.S.G.
§ 2B1.1(b)(19)(A)(iii). Unless otherwise indicated,
citations to the Guidelines in this Opinion and Order
refer to the version of the Guidelines that was in
effect at the time of Petitioner’s sentencing on May
28, 2010.

law in opposition (Doc. No. 12 (“Opp’n”)),
Petitioner’s reply brief (Doc. No. 13 (“Reply”)), and
the plea agreement between Petitioner and the
government (Pet. Ex. C (“Plea Agrt.”)).

2

within or below the proposed Guidelines
ranges. (Id. at 6.)

criminal history category of I, and a
resulting Guidelines range of 360 to 540
months’ imprisonment. (Sent. Tr. at 7:21–
8:25.)
After hearing arguments from
counsel and statements from nine victims,
Defendant, and Defendant’s mother, the
Court sentenced Petitioner to 480 months’
imprisonment and three years’ supervised
release. (Id. at 77:19–79:13.) The fortyyear term of imprisonment was within the
stipulated sentencing range set forth in the
Plea Agreement, thus triggering the waivers
specified in the Plea Agreement.

At the plea hearing, Petitioner was
placed under oath, and the Court inquired
into and was satisfied as to Petitioner’s
competence to plead guilty. (Plea Tr. at
2:20–5:8.)
The Court asked whether
Petitioner had sufficient time to discuss the
plea agreement with his attorneys (id. at
25:5–13), explained the charges in the
Indictment and confirmed that Petitioner
understood each charge (id. at 14:3–20),
reviewed the maximum penalties for the
offenses to which Petitioner was pleading
guilty (id. at 17:13–18:17), and confirmed
Petitioner’s understanding that he was
waiving his right to appeal or otherwise
challenge any sentence imposed by the
Court that was less than 45 years’
imprisonment (id. at 27:2–7).
At the
conclusion of the proceeding, the Court
determined that Petitioner understood his
rights and knowingly waived them (Plea Tr.
at 8:2–13:19), and that his plea was entered
knowingly and voluntarily and was
supported by an independent basis in fact for
each of the elements of the offenses charged
in Counts One through Three of the
Indictment
(id.
at
13:20–37:20).
Consequently,
the
Court
accepted
Petitioner’s guilty plea and set a date for
sentencing. (Id. at 38:18–25, 44:5–21.)

B. Procedural History
On November 4, 2010, Petitioner filed a
timely notice of appeal. (09-cr-414, Doc.
No. 77.) On February 22, 2011, Petitioner
moved to withdraw the appeal without
prejudice
to
reinstatement,
pending
adjudication of his forthcoming § 2255
petition. (United States v. Nicholson, No.
10-4544 (2d Cir.), Doc. No. 32.) On June 6,
2011, Petitioner filed the instant petition
under § 2255 to vacate, set aside, or correct
his sentence (Doc. No. 1), as well as a
renewed motion to withdraw his appeal
pending resolution of his § 2255 petition in
the interest of efficiency and judicial
to § 2B1.1(a)(1); the offense level was increased by
26 levels, pursuant to § 2B1.1(b)(1)(N), because a
reasonable estimate of the loss was between $100–
200 million; the offense level was increased by 6
levels, pursuant to § 2B1.1(b)(2)(C), because the
offense involved 250 or more victims; the offense
level was increased by 2 levels, pursuant to
§ 2B1.1(b)(14)(A), because Petitioner derived more
than $1,000,000 from financial institutions as a result
of the offense; the offense level was increased by 4
levels, pursuant to § 2B1.1(b)(17)(A), because
Petitioner was an investment adviser and the offense
involved a violation of the securities law; the offense
level was reduced by 2 levels, pursuant to § 3E1.1(a),
because of Petitioner’s satisfactory acceptance of
responsibility; and the offense level was reduced by 1
level, pursuant to § 3E1.1(b), because Petitioner gave
timely notice of his intention to plead guilty.

On May 28, 2010, the Court held a
hearing on the disputed issue of loss amount,
and, after considering the parties’
arguments, concluded that losses to
Petitioner’s victims exceeded $100 million.
(09-cr-414, Doc. No. 59.) On October 29,
2010, the Court held a sentencing hearing
where it adopted the Presentence
Investigation Report and found a total
Guidelines offense level of forty-two, 3 a
3

The Court arrived at a Guidelines offense level of
42 as follows: the base offense level was 7 pursuant

3

economy (United States v. Nicholson, No.
10-4544 (2d Cir.), Doc. No. 51). His motion
to withdraw the appeal was granted on June
23, 2011. (United States v. Nicholson, No.
10-4544-cr (2d Cir.), Doc. No. 57.)

society’s strong interest in the finality of
criminal convictions, the courts have
established rules that make it more difficult
for a defendant to upset a conviction by
collateral, as opposed to direct, attack.” Yick
Man Mui v. United States, 614 F.3d 50, 53
(2d Cir. 2010) (citation and internal
quotation marks omitted). A claim of
ineffective assistance of counsel, however,
is one permissible basis for bringing a
§ 2255 petition.

In his § 2255 petition, Petitioner asserts
that his attorney provided ineffective
assistance and asks the Court to vacate his
sentence and resentence him. Specifically,
Petitioner contends that (1) his counsel
failed to advise him of potential legal
challenges that could be mounted in the
event the Court imposed consecutive terms
of imprisonment for his securities fraud and
mail fraud convictions, and (2) his counsel
improperly advised him to plead guilty –
pursuant to a plea agreement that waived
specific rights and potential challenges to his
sentence – instead of preserving those rights
and potential challenges to his sentence by
pleading guilty to the Indictment without a
plea agreement. (Pet. at 1.) The Court will
address each in turn.

The Sixth Amendment to the United
States Constitution guarantees a criminal
defendant’s right to the assistance of
counsel. U.S. CONST. amend. VI (“In all
criminal prosecutions, the accused shall
enjoy the right . . . to have the assistance of
counsel for his defense.”).
When
challenging the effectiveness of counsel’s
assistance, a party must demonstrate that (1)
counsel’s representation “fell below an
objective standard of reasonableness”
measured against “prevailing professional
norms,” and (2) this “deficient performance
prejudiced the defense” in the sense that
“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, 694 (1984). A court must
reject a movant’s ineffective assistance of
counsel claim if it fails to meet either prong.
Gonzalez v. United States, 722 F.3d 118,
130 (2d Cir. 2013) (citing Strickland, 466
U.S. at 687 and Bennett v. United States,
663 F.3d 71, 85 (2d Cir. 2011)).

II. LEGAL STANDARD
Section 2255 enables a prisoner who was
sentenced by a federal court to petition that
court to vacate, set aside, or correct the
sentence on the grounds 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.” 28
U.S.C. § 2255(a). Relief under § 2255 is
generally available “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 a complete miscarriage
of justice.” United States v. Bokun, 73 F.3d
8, 12 (2d Cir. 1995) (citation and internal
quotation marks omitted).
“Because
collateral challenges are in tension with

With respect to Strickland’s first prong,
when assessing counsel’s performance, a
court “must judge [counsel’s] conduct on the
basis of the facts of the particular case,
‘viewed as of the time of counsel’s conduct,’
and may not use hindsight to second-guess
his strategy choices.” Mayo v. Henderson,
13 F.3d 528, 533 (2d Cir. 1994) (quoting
Strickland, 466 U.S. at 690). “Actions
4

counsel’s deficient performance, defendants
must demonstrate a reasonable probability
they would have accepted the earlier plea
had they been afforded effective assistance
of counsel.” Id. The facts in Frye arose in a
situation that was the inverse of those in the
instant Petition. There, respondent Frye – a
criminal defendant who had attacked the
effectiveness of counsel’s assistance in a
postconviction motion for relief – “argue[d]
that with effective assistance he would have
accepted an earlier plea offer . . . as opposed
to entering an open plea.” Frye, 132 S. Ct.
at 1410. In order to establish prejudice in
that context, the Supreme Court stated that
“it is necessary to show a reasonable
probability that the end result of the criminal
process would have been more favorable by
reason of a plea to a lesser charge or a
sentence of less prison time.” Id. at 1409. 4
Therefore, even under the most generous
reading of Strickland and its progeny,
Petitioner here must show that pleading
guilty without a plea agreement would have
resulted in a more favorable sentence.

and/or omissions taken by counsel for
strategic purposes generally do not
constitute ineffective assistance of counsel.”
Gibbons v. Savage, 555 F.3d 112, 122 (2d
Cir. 2009) (citing Strickland, 466 U.S. at
690–91).
Overall, “counsel is strongly
presumed to have rendered adequate
assistance and made all significant decisions
in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690.
With respect to the second prong under
Strickland, in most contexts, “the defendant
must show that there is a reasonable
probability that, but for counsel’s errors, he
would not have pleaded guilty and would
have insisted on going to trial.’” Gonzalez,
722 F.3d at 130 (quoting Hill v. Lockhart,
474 U.S. 52, 59 (1985)). In two recent
decisions, however, the Supreme Court has
refined what prejudice must be shown under
Strickland
when
challenging
the
effectiveness of counsel during the plea
bargaining process. See Lafler v. Cooper,
132 S. Ct. 1376, 1388 (2012) (noting that
“the right to adequate assistance of counsel
cannot be defined or enforced without taking
account of the central role plea bargaining
plays in securing convictions and
determining sentences.”); Missouri v. Frye,
132 S. Ct. 1399, 1408 (2012) (holding that
“as a general rule, defense counsel has the
duty to communicate formal offers from the
prosecution to accept a plea on terms and
conditions that may be favorable to the
accused”). In Frye, the Supreme Court
reaffirmed Hill’s holding “that where a
defendant complains that ineffective
assistance led him to accept a plea offer as
opposed to proceeding to trial,” the
defendant must show a reasonable
probability that he would have insisted on
going to trial. 132 S. Ct. at 1409. However,
the Supreme Court in Frye further noted that
in order “[t]o show prejudice from
ineffective assistance of counsel where a
plea has lapsed or been rejected because of

III. DISCUSSION
The Court will first address the issue of
whether Petitioner’s waiver, memorialized
in the Plea Agreement and at the change of
plea hearing, of his right to collaterally
attack his sentence bars this § 2255 petition.
Finding that it does not, the Court will then
turn to the merits of Petitioner’s claims of
ineffective assistance of counsel. For the
reasons that follow, the Court denies the
4
Similarly, the Supreme Court in Lafler made clear
that where “a plea bargain has been offered, [and a
defendant has been deprived of the] right to effective
assistance of counsel in considering whether to
accept it[,] . . . prejudice can be shown if loss of the
plea opportunity led to a trial resulting in a
conviction on more serious charges or the imposition
of a more severe sentence.” 132 S. Ct. at 1387
(emphasis added).

5

Here, Petitioner claims that he did not
knowingly and voluntarily waive his right to
collaterally attack his sentence as a result of
having received ineffective assistance of
counsel. Thus, notwithstanding the Court’s
satisfaction with Petitioner’s competence to
plead guilty at the December 11, 2009
hearing – not to mention the Court’s detailed
colloquy with Petitioner concerning the
consequences of the appellate waiver with
respect to his ability to challenge any
sentence that was equal to or less than the
combined statutory maximum sentence of
forty-five years – the Court will turn to the
merits of Petitioner’s ineffective assistance
of counsel claims.

§ 2255 petition and finds that Petitioner is
not entitled to habeas relief.
A. Waiver
Although the Plea Agreement expressly
provides that Petitioner may not appeal or
otherwise challenge any sentence of fortyfive years or less, Petitioner argues that he
did not knowingly and intelligently waive
his right to file a § 2255 petition and, as a
result, his waiver is unenforceable. (Pet. at
20–21.) Specifically, Petitioner argues that
he received ineffective assistance of counsel
with respect to the government’s plea offer
and that therefore the waiver of rights
provision is unenforceable. (Id. at 26–27.)

B. Merits of Ineffective Assistance of
Counsel Claim

A waiver of the right to appeal a
sentence within an agreed upon guideline
range is presumptively valid and
enforceable. See, e.g., United States v.
Arevalo, 628 F.3d 93, 98 (2d Cir. 2010);
United States v. Pearson, 570 F.3d 480, 485
(2d Cir. 2009). Thus, “[w]here the record
clearly demonstrates that the defendant’s
waiver . . . was knowing and voluntary, that
waiver is enforceable.” United States v.
Monzon, 359 F.3d 110, 116 (2d Cir. 2004)
(citations omitted); see also United States v.
Roque, 421 F.3d 118, 121–24 (2d Cir.
2005). However, “a waiver of appellate or
collateral attack rights does not foreclose an
attack on the validity of the process by
which the waiver has been procured, here,
the plea agreement.” Frederick v. Warden,
Lewisburg Corr. Facility, 308 F.3d 192,
195–96 (2d Cir. 2002) (citation omitted). A
court may therefore set aside a waiver where
the “defendant is challenging the
constitutionality of the process by which he
waived those rights,” United States v.
Hernandez, 242 F.3d 110, 113 (2d Cir.
2001) (per curiam), including when “the
defendant claims that the plea agreement
was entered into without effective assistance
of counsel,” id. at 113–14 (collecting cases).

Petitioner claims ineffective assistance
of counsel arising from his attorney’s
failure, during the negotiation and execution
of the Plea Agreement, to advise him of
certain potential challenges applicable to the
Plea Agreement and sentencing. Petitioner
alleges that counsel failed to advise him that
(i) “the Double Jeopardy Clause barred
consecutive sentences for the crimes to
which [Petitioner] pled guilty”; (ii) “the
enhancement
under
U.S.S.G.
§ 2B.1(b)(17)(A) . . . represented improper
double-counting”; (iii) Petitioner “had the
right to seek certain downward departures
from the adjusted offense level determined
by the Court”; and (iv) Petitioner would not
receive any further sentencing benefits if he
pleaded guilty pursuant to the Plea
Agreement rather than the Indictment. (Pet.
at 1, 17–20.) Petitioner asserts that but for
counsel’s deficient advice, he would not
have accepted the government’s plea offer
and, instead, would have pleaded guilty to
the Indictment without any plea agreement.
(Id.)

6

constitutes a violation of two distinct
statutory provisions, the test to be applied to
determine whether there are two offenses or
only one, is whether each provision requires
proof of a fact which the other does not.”
Blockburger, 284 U.S. at 304. See also
Dixon, 509 U.S. at 696 (“[The Blockburger
test asks] whether each [charged] offense
contains an element not contained in the
other [charged offense]; if not, they are the
‘same offen[s]e’ and double jeopardy bars
additional punishment and successive
prosecution”); Knapp v. Leonardo, 46 F.3d
170, 178 (2d Cir. 1995).

1. Petitioner’s Double Jeopardy Claim
Petitioner argues that he is entitled to
relief under § 2255 because counsel failed to
advise him that the Double Jeopardy Clause
of the Fifth Amendment barred the
government from charging him with
securities fraud and mail fraud for the same
underlying conduct. (Pet. at 1, 14–15.)
Petitioner contends that, at least with respect
to the charges in the Indictment, securities
fraud and mail fraud are the same crime and
that the Indictment was therefore
multiplicitous. (Pet. at 14–17.)
The Fifth Amendment to the United
States Constitution provides that “[n]o
person shall . . . be subject for the same
offence to be twice put in jeopardy of life or
limb.” U.S. CONST. amend. V. “An
indictment is multiplicitous when it charges
a single offense as an offense multiple times,
in separate counts, when, in law and fact,
only one crime has been committed.”
United States v. Chacko, 169 F.3d 140, 145
(2d Cir. 1999). A multiplicitous indictment
“violates the Double Jeopardy Clause of the
Fifth Amendment, subjecting a person to
punishment for the same crime more than
once.” Id. Such an indictment may also
“improperly prejudice a jury by suggesting
that a defendant has committed not one but
several crimes.” United States v. Reed, 639
F.2d 896, 904 (2d Cir. 1981).

In applying the Blockburger test, courts
focus not on the proof the government may
present at trial, but rather on the statutory
elements of the offenses. See, e.g., Albernaz
v. United States, 450 U.S. 333, 338 (1981).
The Second Circuit has held that even if
both charged offenses are based on identical
evidence, as Petitioner alleges is the case
here, the focus nonetheless remains on the
statutory elements. See, e.g., United States
v. Biasucci, 786 F.2d 504, 516 (2d Cir.
1986) (“If each statute requires proof of a
fact that the other does not, the Blockburger
test is satisfied, even if the same proof is
used at trial to establish both crimes.”);
United States v. Langella, 776 F.2d 1078,
1082 (2d Cir. 1985) (holding that even if
both convictions were based on the same
conduct, “Albernaz requires us to focus on
the provisions of the statutes involved,
rather than on the evidence adduced at
trial”).

In assessing whether a defendant is
impermissibly charged with essentially the
same offense more than once in violation of
the Double Jeopardy Clause, courts are to
apply the “same-elements” test articulated
by the Supreme Court in Blockburger v.
United States. 284 U.S. 299 (1932); see
also United States v. Dixon, 509 U.S. 688,
696 (1993) (affirming continued application
of the Blockburger test).
Under the
Blockburger test, “[t]he applicable rule is
that, where the same act or transaction

Here,
notwithstanding
Petitioner’s
arguments, the two offenses charged in the
Indictment require the prosecution to
establish different elements.
Indeed, the
Second Circuit in Reed expressly rejected a
double jeopardy challenge to charges of mail

7

fraud and securities fraud, 5 finding that the
charged counts “contained different
elements and each could have stood alone.”
639 F.2d at 905; see also id. (“Moreover,
even if the test for multiplicity were held to
be whether Congress had intended the
conduct referred to in the various counts to
constitute
separate
offenses, . . . the
indictment here meets that standard as well.
The mail fraud and the securities fraud
statutes properly exist ‘side by side.’”
(citations omitted)).

Therefore, the Court necessarily finds that
counsel’s performance – in failing to advise
Petitioner (erroneously) that “the Double
Jeopardy Clause barred consecutive
sentences for the crimes to which he pled
guilty” (Pet. at 1) – did not “f[a]ll below an
objective standard of reasonableness”
measured against “prevailing professional
norms,” Strickland, 466 U.S. at 687–88, and
did not result in prejudice, since counsel
could not have brought a meritorious double
jeopardy challenge on Petitioner’s behalf.

Applying the Blockburger test – and
Reed – to this case, the Court finds that
securities fraud and mail fraud are not the
same offenses for double jeopardy purposes,
since the statutory elements of these
offenses require proof of different facts. 6

2. Investment Adviser Enhancement
Petitioner next contends that counsel
was ineffective by virtue of having failed to
advise him that “the [investment adviser]
enhancement
under
U.S.S.G.
§ 2B1.1(b)(17)(A) . . . represented improper
double-counting,” since investment adviser
fraud was one of the counts to which he
pleaded guilty. (Pet. at 1.) As with
Petitioner’s double jeopardy argument, the
Court finds that the advice provided by
counsel on this issue was accurate and
therefore not ineffective. Specifically, the
Court concludes that the three counts of the
Indictment to which Petitioner pleaded
guilty – securities fraud, investment adviser
fraud, and mail fraud – were properly
grouped together pursuant to U.S.S.G.
§ 3D1.2(d). The Court further finds that the
offense level for the group was properly
determined by applying the Guidelines to
the aggregate behavior in accordance with
U.S.S.G. § 3D1.3(b). According to the

5

The securities violation in Reed “involved section
10(b) of the Securities Exchange Act, 15 U.S.C.
§ 78j(b).” 639 F.2d at 905.

6

Specifically, to prove a violation of 15 U.S.C.
§ 78j(b), “the government must establish beyond a
reasonable doubt the following elements of the crime
of securities fraud: First, that in connection with the
purchase or sale of [a security] the defendant did any
one or more of the following: (1) employed a device,
scheme or artifice to defraud, or (2) made an untrue
statement of a material fact or omitted to state a
material fact which made what was said, under the
circumstances, misleading, or (3) engaged in an act,
practice or course of business that operated, or would
operate, as a fraud or deceit upon a purchaser or
seller. Second, that the defendant acted willfully,
knowingly and with the intent to defraud. Third, that
the defendant knowingly used, or caused to be used,
any means or instruments of transportation or
communication in interstate commerce or the use of
the mails in furtherance of the fraudulent conduct.”
See Leonard B. Sand, et al., 3 Modern Federal Jury
Instructions: Criminal, Instruction 57:20 (2012).

defendant knowingly and willfully participated in the
scheme or artifice to defraud, with knowledge of its
fraudulent nature and with specific intent to
defraud . . . ; and [t]hird, that in execution of that
scheme, the defendant used or caused the use of the
mails (or a private or commercial interstate carrier or
interstate wires) as specified in the indictment.” See
Leonard B. Sand, et al., 2 Modern Federal Jury
Instructions: Criminal, Instruction 44:3 (2012).

In order to prove mail fraud in violation of 18
U.S.C. § 1341, “the government must prove each of
the following elements beyond a reasonable doubt:
First, that there was a scheme or artifice to defraud or
to obtain money or property . . . by materially false
and fraudulent pretenses, representations or promises,
as alleged in the indictment; [s]econd, that the

8

Guidelines, where counts are grouped, as
they were here, “the highest offense level of
the counts in the group is used.” Id. cmt. 2.
In this case, both the securities fraud and
mail fraud counts on which Petitioner was
convicted carried a base offense level of
seven, see U.S.S.G. § 2B1.1(a)(1), which
was higher than the base offense level of six
resulting from the investment adviser fraud
count standing alone, see U.S.S.G.
§ 2B1.1(a)(2). In all other respects, the
enhancements
for
the
various
counts – whether considered together or
separately – were identical, yielding a total
offense level of forty-two for the securities
and mail fraud counts and forty-one for the
investment adviser fraud count. 7 Therefore,
the securities fraud and mail fraud counts
drove the sentence for the group consisting
of the three closely related counts of
conviction.

Second Circuit has made clear that district
courts are not barred from applying an
enhancement based on conduct that is also
an element of an offense for which a
defendant is being sentenced. See United
States v. Maloney, 406 F.3d 149, 154 (2d
Cir. 2005) (rejecting view that “double
counting of primary offense conduct
[through both application of an enhancement
and base offense level determination] is per
se impermissible in calculating a Guidelines
sentence” because such a position “would be
irreconcilable with our case law”). Not
surprisingly, courts have consistently
applied the investment adviser enhancement
in cases where defendants have pleaded
guilty to violations of 15 U.S.C. §§ 80b-6
and 80b-17. See, e.g., United States v. Vilar,
No. 05-cr-621 (RJS), Doc. No. 434
(S.D.N.Y. Feb. 5, 2010), aff’d in part,
vacated on other grounds, 729 F.3d 62 (2d
Cir. 2013); United States v. Madoff, No. 09cr-213 (DC), Doc. No. 103 (S.D.N.Y. June
29, 2009). Petitioner’s interpretation of the
Guidelines – whereby a defendant who
pleaded guilty to an investment adviser
fraud count could not be assessed an
enhancement
pursuant
to
U.S.S.G.
§ 2B1.1(b)(17)(A)(iii) – would lead to a
perverse, and frankly absurd, outcome since
it would require that a defendant convicted
of the three offenses here receive a shorter
Guidelines sentence than a hypothetical
criminal defendant convicted of only
securities fraud and mail fraud. Petitioner
cites no authority for such a proposition,
which defies both common sense and the
plain language of the provision.

In essence, Petitioner asserts that the
investment adviser enhancement may not be
applied when a defendant has pleaded guilty
to investment adviser fraud – whether alone
or in tandem with other counts. This is
simply wrong. The Guidelines require a
four-level enhancement “[i]f the offense
involved . . . a violation of securities law
and, at the time of the offense, the defendant
was . . . an investment adviser,” U.S.S.G.
§ 2B1.1(b)(17); thus, the Guidelines
expressly contemplate an enhancement for
investment advisers who violate the
Investment Advisers Act. 8 Moreover, the
7

See supra note 3.

Since the Court correctly calculated and
applied Petitioner’s offense level pursuant to
§§ 2B1.1, 3D1.2(d), 3D1.3(b), and 5G1.2, it

8

The investment adviser enhancement requires the
offense to have involved “a violation of the securities
laws” in order for the enhancement to apply.
U.S.S.G. § 2B1.1(b)(17)(A)(iii). Application Note
14(A) to that section defines the “securities laws” to
include “the provisions of law referred to in . . . 15
U.S.C. § 78c(a)(47).” Id. Application Note 14(A).
That provision of the United States Code in turn
references the Investment Advisers Act of 1940. See

15 U.S.C. § 78c(a)(47) (“The term ‘securities laws’
means . . . the Investment Advisers Act of 1940 (15
U.S.C. § 80b et seq. . . . .”).

9

waiver, the government consented to dismiss
the structuring count, thereby reducing
Petitioner’s maximum exposure from fiftyfive to forty-five years. That dismissal,
coupled with the government’s implicit
agreement to forego additional substantive
charges and offense level enhancements that
arguably could have been applied to
Petitioner’s Guidelines calculation – such as
an aggravating role enhancement pursuant to
U.S.S.G. § 3B1.1(c) or a vulnerable victim
enhancement
pursuant
to
U.S.S.G.
§ 3A1.1(b) – gave Petitioner the certainty
that he would not receive a sentence greater
than forty-five years. Given his age and life
expectancy, that concession was not
insignificant, as it gave Petitioner the hope
that he might at least not die in prison.
Without a plea agreement, Petitioner ran the
risk that the government might make
arguments for additional enhancements,
which could have increased the total offense
level to forty-three or higher, resulting in a
Guidelines sentence of life imprisonment
and which, under the original indictment,
would have resulted in a maximum sentence
of fifty-five years. (See Opp’n at 4.) 9

can hardly be argued that counsel’s failure
to advise Petitioner otherwise constituted
conduct falling “below an objective standard
of reasonableness.” Strickland, 466 U.S. at
687–88, 694. Nor can it be said that such
advice – which accurately stated the law – in
any way prejudiced Petitioner, since he
could not have prevailed on this point had it
been argued to the Court.
3. Benefits of Pleading Guilty Pursuant to
the Plea Agreement
Petitioner further argues, more broadly,
that counsel should have advised Petitioner
that he would not receive any sentencing
benefits by pleading guilty pursuant to the
Plea Agreement as opposed to simply
pleading to the Indictment. (Pet. at 1, 17–
20.)
Specifically, Petitioner challenges
counsel’s advice that (1) “the government’s
plea agreement benefitted [Petitioner] by
avoiding a hearing at which the government
could call victims to testify and elicit highly
prejudicial material which might not
otherwise come to light” (id. at 1–2), and (2)
“the government’s plea agreement benefitted
[Petitioner] because it reduced his statutory
maximum sentence from 55 to 45 years” (id.
at 2). As to the latter argument, Petitioner
argues that “[p]reserving the prospect of
some possible liberty if [Petitioner] lives to
his late 70[]s or early 80[]s . . . was not
worth bargaining away all the challenges to
a sentence within a thirty-year spread.” (Id.;
see also id. (“[I]t was incumbent on counsel
to preserve all sentencing challenges, not
bargain them away for illusory gain.”).)

Of course, with or without a plea
agreement, the ultimate sentence was always
to be determined by the Court. The Plea
Agreement made that explicit, as did the
Court during its colloquy with Petitioner at
the change of plea hearing. (Plea Tr. at
26:7–15.) Nevertheless, the fact that the
Court ultimately imposed a forty-year
sentence – less than the forty-five-year
maximum sentence requested by the

Notwithstanding Petitioner’s arguments
to the contrary, the Court finds that
counsel’s advice with respect to these issues
was not objectively unreasonable and that
Petitioner did indeed benefit from the Plea
Agreement.
As consideration for the
stipulated Guidelines range and appellate

9

The Court further notes that absent a plea
agreement, the government would have been free to
seek a superseding indictment that could have
charged Petitioner with additional counts for each
instance of illegal conduct, thereby increasing
Petitioner’s sentencing exposure enormously. See,
e.g., United States v. Madoff, No. 09-cr-213 (DC),
Doc. No. 100 (S.D.N.Y. June 29, 2009).

10

seek certain downward departures from the
adjusted offense level determined by the
Court” (Pet. at 1), including:
(a) a
downward departure to obviate the stacking
of statutory maximums under U.S.S.G.
§ 5G1.2(d) (Pet. at 18); (b) “a downward
departure based on the ‘cumulative effects’
of
‘substantially
overlapping
enhancements’” (id. at 19); and (c) “a
downward departure because the fraud loss
overstated his culpability” (id. at 20). 10
Here, once again, the Court is unpersuaded
that counsel’s alleged failure to review with
Petitioner every conceivable downward
departure argument prior to recommending
that Petitioner accept the Plea Agreement
“fell below an objective standard of
reasonableness”
measured
against
“prevailing professional norms.” Strickland,
466 U.S. at 688. It is rarely the case that
defense counsel will have fully formulated
his or her sentencing strategy at the time of
the plea. In any event, the Court finds that
Petitioner cannot establish that those alleged
deficiencies by counsel ultimately resulted
in any prejudice to Petitioner.

government under the Plea Agreement –
does not mean that Petitioner received no
benefit from the Plea Agreement.
Moreover, Strickland bars courts from
“look[ing] back and project[ing] ex post
knowledge of consequences of the
attorney’s ex ante selection of one path
among the many available to him.” Parisi v.
United States, 529 F.3d 134, 141 (2d Cir.
2008).
Instead, courts are required to
“consider the circumstances counsel faced at
the time of the relevant conduct and to
evaluate the conduct from counsel’s point of
view.” Davis v. Greiner, 428 F.3d 81, 88
(2d Cir. 2005). When Petitioner entered into
the Plea Agreement, neither party could
have been certain of the sentence that the
Court would ultimately impose, and counsel
could have reasonably feared that the Court
would impose the statutory maximum
sentence of fifty-five-years had Petitioner
pleaded guilty to the Indictment without the
Plea Agreement. Thus, evaluating counsel’s
recommendation to enter into the Plea
Agreement from counsel’s point of view at
the time the advice was rendered, the Court
finds that Petitioner cannot show that
counsel’s performance in this respect fell
“below
an
objective
standard
of
reasonableness.” Strickland, 466 U.S. at
687–88, 694. With respect to prejudice, the
record is equally clear that – with or without
a plea agreement – the Court would have
imposed a sentence of at least forty years.
See infra Part III.B.4.
Accordingly,
Petitioner cannot show prejudice since there
is no “reasonable probability that the end
result of the criminal process would have
been more favorable by reason of a plea to a
lesser charge or a sentence of less prison
time.” Frye, 132 S. Ct. at 1409.

As the Court made clear at sentencing,
and reiterates today, it would have imposed
the same sentence of forty years’
imprisonment even if counsel had made, and
preserved, every argument raised in the
Petition. Indeed, the forty-year sentence
was not the result of a mechanical
application of the Guidelines.
It was,
instead, a careful assessment and balancing
10

Petitioner implicitly made these very arguments
when he asked the Court, albeit unsuccessfully, “to
look past the mathematical constraints of the
Guidelines . . . [and impose] a sentence that is
substantially below the Guidelines range.” (09-cr414, Doc. No. 70 at 17.) And with respect to the
claim that “the fraud loss overstated [Petitioner’s]
culpability” (Pet. at 20), defense counsel expressly
made this very argument at sentencing, to no avail
(see Sent. Tr. at 15:6–19:16; see also id. at 72:13–
14).

4. Other Downward Departure Arguments
Finally, Petitioner asserts that counsel
failed to advise him that he “had the right to

11

(“PSR”), ¶¶ 94–97.) 11
Worse still,
Petitioner attempted to obstruct the NASD’s
investigation by forging and notarizing a
letter – which purported to be written by the
victim – exonerating Petitioner of any
wrongdoing. (PSR ¶¶ 94–96.) As a result
of the NASD ban, Petitioner was not
permitted to hold himself out as an
investment adviser or accept client funds for
any purpose – and therefore should not have
been in a position to further defraud clients.
(See PSR ¶ 97; see also Letter from
Margaret Kurta, Senior Accountant, Office
of the Att’y Gen., State of New York, to
James Nicholson (Apr. 11, 2001), Doc. No.
45, Ex. U (“Our information shows that Mr.
Nicholson was barred by the NASD in all
capacities on 1/3/2001.”); id. (“Any activity
by Mr. Nicholson in advising members of
the public . . . as to the value of securities or
as to the advisability of investing in,
purchasing, or selling or holding securities[]
will be a fraudulent practice under the
General Business Law (“GBL”) § 352(1),
and an unlawful practice under GBL § 359eee(4) . . . .”).)

of the various factors identified by Congress
and the Supreme Court as relevant to the
calculation of a criminal sentence. As set
forth on the record at the sentencing hearing
and below, the Court’s sentencing decision
was driven largely by the history and
characteristics of Petitioner, as well as the
facts and circumstances of his criminal
conduct, the need for general and specific
deterrence, and the necessity of a just
punishment that reflected the seriousness of
the conduct at issue.
With respect to the history and
characteristics of Petitioner, it bears noting,
again, that Petitioner was not someone
driven to a life of crime by poverty,
addiction, or other difficult circumstances.
Rather, as the Court observed at sentencing,
Petitioner was someone who “had all the
advantages of life.” (See Sent. Tr. at 70:20;
see also id. at 70:20–22 (“You had family,
you had great health, you had a good
education, you had intelligence, opportunity,
good looks, charm, charisma, you had so
much.”).) Yet, despite all of that promise,
Petitioner “used many of these [same]
qualities to victimize people whose only
error in judgment was trusting” him. (Id. at
70:23–24.)

Finally, with respect to the facts and
circumstances of the offense, the devastation
left in Petitioner’s wake was, and remains,
staggering in its scope and depth. At
sentencing, the Court stressed the wide-

Even more troubling was the fact that
Petitioner had previously been disciplined,
and in fact barred from the securities
industry, for prior misconduct relating to the
misuse of investor funds. On January 3,
2001, the National Association of Securities
Dealers (“NASD”) prohibited Petitioner
from working in the securities industry in all
capacities following an investigation of his
conduct, which revealed that Petitioner had
stolen hundreds of thousands of dollars from
a
client
account.
(Pre-Sentence
Investigation Report, dated Oct. 8, 2010,

11

Typically, a PSR is not publicly docketed because
of the sensitive material it contains and its nature “as
a court document designed and treated principally as
an aid to the court in sentencing . . . .” United States
v. Charmer Indus., Inc., 711 F.2d 1164, 1176 (2d Cir.
1983). However, in the Second Circuit, there is a
well-established presumption in favor of open court
records. See United States v. Amodeo, 44 F.3d 141,
146 (2d Cir. 1995). In light of that presumption and
the fact that the portions of the PSR referenced in this
Opinion and Order discuss information that is
publicly available, the Court finds that limited
disclosure of the contents of the PSR is appropriate
and “meet[s] the ends of justice.” Charmer, 711 F.2d
at 1176.

12

your money is safe and accounted for.”
(Doc. No. 36, Ex. 14.) John Lalli lost his
entire “life savings, pension, retirement,
[and] college funds” after investing with
Petitioner, and he and his wife were forced
to sell their home. (Doc. No. 36, Ex. 22.)
Petitioner’s own brother-in-law and the
godfather to his children, James Hostomsky,
described Petitioner’s crimes as having “left
such a deep scar, not only financially, but
emotionally[; w]e will never be the same.”
(Doc. No. 38, Ex. 44.) Josephine Esposito, a
woman in her 80s, lost all of her savings and
retirement funds and is now forced to
survive month-to-month by relying on
Social Security. (Doc. No. 39, Ex. 57.)
Nadine Gross, a widow, lost approximately
$400,000 that she had received after her
husband passed away. (Doc. No. 36, Ex.
15.) Keri-Anne Fox – another widow who
suffered as a result of Petitioner’s conduct –
lost $200,000 that was meant to fund her
children’s educations after investing with
Petitioner following the death of her
husband. (Doc. No. 36, Ex. 11.) She had
approached Petitioner following her
husband’s death with hopes of securing the
financial future of her children.
(Id.)
Petitioner assured her that “he knew exactly
what to do with the money[,] stating that the
investment was 99% guaranteed to make
money, and rarely ever lost money.” (Id.)
That assurance was, in fact, a brazen lie,
since Petitioner never invested her money at
all, and instead spent the entire amount on
cars, apartments, and a home for himself.
These are but a sampling of the victims
whose lives collided with Petitioner’s
seemingly insatiable greed.

reaching impact of Petitioner’s criminal
conduct, noting that “there are very few
crimes of this magnitude [or] that have
inflicted this much pain.” (Sent. Tr. at
76:17–18.) Moreover, as the Court noted at
sentencing, Petitioner’s victims were, by and
large, not sophisticated investors. They
were, instead, middle class and working
class people who trusted Petitioner to invest
their life savings –accumulated as a result of
decades of work and frugality or from the
sale of homes purchased years before, which
had appreciated in value and were expected
to fund retirements and perhaps leave a little
something extra for children and
grandchildren. They “were individuals who
basically gave [Petitioner] everything they
had . . . [, only to have Petitioner] play[] on
those relationships and cultivate[] them,
encourag[ing] them . . . to invest their last
pennies with him . . . .” (Id. at 71:6–13.)
Each of the 250 victims suffered profoundly
as a result of Petitioner’s deviousness, but
several in particular are worth mentioning
for the sheer callousness, bordering on
cruelty, exhibited by Petitioner.
Eleanor Ferraro, for example – a widow
in her 80s – lost her entire life savings and
was forced to obtain a reverse mortgage on
her only remaining asset, her home. (Doc.
No. 46, Ex. 4.) Ms. Ferraro’s savings were
the fruits of more than fifty years of labor on
the part of her late husband, whose life’s
work culminated in the sale of his furniture
refinishing business.
(Id.)
She now
“struggle[s] to meet recurring bills,
and . . . [is] unable to spend money on
anything beyond [her] necessities.” (Id.)
Jeffrey Golden entrusted Petitioner with his
mother’s life savings of $50,000; when Mr.
Golden asked Petitioner for an assurance
that his mother’s savings were safe,
Petitioner told him, “you know there is
nothing more precious to me than my [three]
boys, and on their lives, I take an oath that

Indeed, Petitioner’s hunger for material
things was truly voracious. As the Court
noted at sentencing, “at a time when the
world was collapsing, when there was no
possibility of paying back [the money he
had stolen, Petitioner] was buying a home

13

Stallone that her money was safe. (Id.) Ms.
Stallone was not alone in being told directly
by Petitioner that her investments were
secure, as Petitioner often swore on the lives
of his children in order to assuage the
concerns of investors who suspected
wrongdoing without actually knowing just
how bad things truly were. Thomas Truffa,
for instance, lost over $500,000 that he had
invested with Petitioner, despite Petitioner
having sworn, once again, on the lives of his
own children that the investments were safe.
(Doc. No. 36, Ex. 37.) Similarly, Petitioner
told Lorraine Reilly only two days prior to
his arrest that her money was safe and,
again, swore on the lives of his own
children. (Doc. No. 36, Ex. 32.) Perhaps
worst of all, Petitioner made those false
pledges with full knowledge that he had
been spending millions of dollars on luxury
cars, boats, apartments, and vacation homes
with the accumulated savings of people who
had sacrificed and deferred gratification in
the hope that they might know the peace of
mind and security that come from a lifetime
of work and thrift.

worth over $25 million in the Hamptons.”
(Sent. Tr. at 71:18–21.) That Hamptons
mansion was hardly an outlier for Petitioner,
who had also purchased a $5.75 million
home in Saddle River, New Jersey in 2006,
a $4.75 million penthouse in Palm Beach,
Florida in 2007, an $8.5 million
condominium in the Time Warner Building
in Manhattan in 2008, and a $377,500
condominium in Montvale, New Jersey in
2008. (PSR ¶ 14.) Petitioner also owned
multiple luxury BMW vehicles, a town car,
a limousine, and an interest in a Gulfstream
200 aircraft. (Id.)
Petitioner’s criminal conduct was
egregious, and, as the Court made clear in
imposing a forty-year sentence, the harm he
caused affected lives in ways that cannot be
measured in dollars and cents. Consider for
a moment victim Shanna McKee, who lost
nearly the entirety of her net worth as a
result of Petitioner’s crimes. (Doc. No. 39,
Ex. 59.) Ms. McKee wrote that her “psyche
will never truly heal from the emotional
destruction
caused
by
[Petitioner’s]
fraudulent actions[, and that she is]
reminded everyday of all that [she] has lost,
how [her] financial security was ripped
away by his treachery, greed and deceit.”
(Id.) Or consider William Fitzgerald, who
lost the majority of his family’s savings,
which took over twenty-five years to accrue,
and can no longer afford to send his children
to college, pay for his daughter’s wedding,
or even retire with his spouse. (Doc. No. 36,
Ex. 10.) Victim Eileen Stallone’s loss was
similarly heartbreaking. After raising her
son by herself and attending college classes
at night and on weekends in order to
advance professionally, Ms. Stallone
managed to accumulate $350,000 in savings
in her 401k. (Doc. No. 38, Ex. 51.) She
invested those savings with Petitioner, who
knowingly stole them. (Id.). Worse still, the
day prior to his arrest, Petitioner assured Ms.

As Judge Chin said when sentencing
another, more famous Ponzi-scheme
operator, see generally United States v.
Madoff, No. 09-cr-213 (DC), Doc. No. 103
(S.D.N.Y. June 29, 2009), this conduct was
truly evil, and the lives of many of the
investors from whom he stole will never be
the same. Justice requires that such acts be
punished, and that the punishment reflect the
harm inflicted. George Washington once
wrote that the “true administration of justice
is the firmest pillar of good government.”
United States v. Washington, No. 11-cr-605
(RJS), Doc. No. 109 at 12 (S.D.N.Y. July
31, 2014). Clearly, the true administration
of justice requires a decent regard for
victims, who turn to the Court for
protection, or at the very least for
vindication, and for a reaffirmation of the

14

law and the values that underlie it.
Petitioner showed no respect for that law,
and no regard for those values, when he
plundered the savings of his victims. For
that, he must be punished. The Court is not
without sympathy for Petitioner and his
family, particularly his children, who are
also innocent victims of these crimes. But
the harms inflicted on his own family, like
those inflicted on his victims, are wholly
attributable to Petitioner, and the sentence
imposed must reflect the magnitude of those
harms.

III.

CONCLUSION

For the foregoing reasons, Petitioner has
failed to establish his entitlement to habeas
relief pursuant to 28 U.S.C. § 2255.
Accordingly, the petition is DENIED. In
addition, because Petitioner has not made a
substantial showing of the denial of a
constitutional right, a certificate of
appealability will not issue. See 28 U.S.C.
§ 2253(c)(2); Love v. McCray, 413 F.3d
192, 195 (2d Cir. 2005). The Clerk of the
Court is respectfully directed to enter
judgment in favor of Respondent and to
close this case.

After careful consideration of all these
factors, the Court continues to believe that a
sentence of forty years is sufficient but not
more than necessary to meet the objectives
of sentencing set forth in 18 U.S.C.
§ 3553(a). In fact, at sentencing, the Court
stated the reasons why a sentence of forty
years was the appropriate punishment for
Petitioner's crimes, and made clear that
Petitioner's sentence was the result of the
Court's careful consideration of the factors
set forth in 18 U.S.C. § 3553(a) rather than
any rigid application of the Guidelines. (See
Sent. Tr. at 69:8-77:6; see also id. at 72:910 ("The guidelines, there's no magic in
them, not at all.").) Therefore, even if
Petitioner were able to demonstrate that
counsel's performance fellow below an
objective standard of reasonableness,
Strickland, 466 U.S. at 687-88, he cannot
show prejudice since there is no "reasonable
probability that the end result of the criminal
process would have been more favorable by
reason of a plea to a lesser charge or a
sentence of less prison time," Frye, 132 S.
Ct. at 1409.

SO ORDERED.

RI
United States District Judge
Dated: September 22, 2014
New York, New York

*

*

*

Petitioner is represented by Andrew J.
Frisch, Esq., 40 Fulton Street, 23rd Floor,
New York, New York 10038.
Respondent is represented by Matthew
L. Schwartz, Esq., United States Attorney's

Office, Southern District of New York, One
Saint Andrew's Plaza, New York, New
York 10007.

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:~~~-,---:-~~

DATE FILED: r' a.2/;1. ~It/
9 ,

15