Chen v. USA

Filing 19

OPINION & ORDER re: 2 MOTION to Vacate. For the reasons described above, Chen's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is denied. There is no need for an evidentiary hearing because "th e motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255 (b). The Court declines to issue a certificate of appealability because Chen has not made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); Krantz v. United States, 224 F.3d 125, 127 (2d Cir. 2000). Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is respectfully directed to close the case and enter judgment for the Government. SO ORDERED. (Signed by Judge John F. Keenan on 9/28/2017) (anc)

Case 1:09-md-02013-PAC Document 57

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
-------------------------------X
JOHNSOUTHERN DISTRICT OF NEW YORK
CHEN,
-----------------------------------------------------------x
Petitioner,
In re FANNIE MAE 2008 SECURITIES
:
LITIGATION
:
-against:
:
UNITED STATES OF AMERICA,
-----------------------------------------------------------x
Respondent.
--------------------------------X

Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 09/28/2017

Nos. 11 Cr. 1038 (JFK)
08 Civ. 7831 (PAC)
14 Civ. 4987 (JFK)
09 MD 2013 (PAC)
OPINION & ORDER
OPINION & ORDER

APPEARANCES
HONORABLE PAUL A. CROTTY, United States District Judge:
FOR PETITIONER JOHN CHEN
Pro Se
BACKGROUND1
FOR RESPONDENT UNITED STATES OF AMERICA
Rachel early years of this decade saw a boom in home financing which was fueled, among
The Maimin, Esq.
JOHN F. KEENAN, United States District Judge:
other things, by low interest rates and lax credit conditions. New lending instruments, such as
Petitioner John Chen (“Petitioner” or “Chen”), an inmate of
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
the United States Penitentiary Terre Haute in Terre Haute,
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
Indiana, brings this pro se petition pursuant to 28 U.S.C. §
assumption that the market would continue to rise and that refinancing options would always be
2255 to vacate, set aside, or correct his prison sentence. For
available in the future. Lending discipline was lacking in the system. Mortgage originators did
the reasons stated below, the petition is denied.
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
I.
Background
originators sold their loans into the secondary mortgage market, often as securitized packages
A. Petitioner’s Arrest and Indictment
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
Between March 2011 and April 2011, Chen and three coBut then the housing bubble burst. In 2006, the demand for housing dropped abruptly
defendants conspired to commit mail fraud. (Presentence
and home prices began to fall. In light of the changing housing market, banks modified their
Investigation Report ¶ 16 (Oct. 22, 2012) [hereinafter PSR].)
lending practices and became unwilling to refinance home mortgages without refinancing.
Chen’s co-defendant, who worked for an accounting firm, provided
Chen1 with the personal information of the accounting firm’s

Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

clients, and another co-defendant then generated credit reports
1
1

for those clients. (Id.)

Chen then used those credit reports to

order credit cards in the names of the victims, which he and
others used to purchase items. (Id.)

Chen was arrested on April

29, 2011 by the United States Postal Service and charged with
three counts of criminal possession of stolen property. (Id. ¶
20.)

Between April 2011 and September 2011, while Chen was

incarcerated at Riker’s Island, he used the prison telephone to
call various credit card companies and attempt to get
replacement credit cards using the name of another person. (Id.
¶ 23.)

At least once, Chen succeeded in doing so and the

replacement card was mailed to a co-conspirator who used it to
purchase items. (Id. ¶ 23.)

On December 6, 2011, Chen was

indicted for two counts of conspiracy to commit mail fraud under
18 U.S.C. § 1341 and one count of aggravated identity theft
under 18 U.S.C. § 1028A. (See Indictment ¶¶ 1-2, 4-5, 7, United
States v. Chen, No. 11 Cr. 1038 (Dec. 06, 2011), ECF No. 1.)
Mary Mulligan (“Mulligan”) represented Chen through sentencing.
B. The Plea Agreement
On July 31, 2012, Chen entered a plea of guilty to Counts
One, Two, and Three of the Indictment, pursuant to a written
plea agreement with the Government (the “Plea Agreement”).

In

the Plea Agreement, Chen and the Government stipulated that:
(1) Counts One and Two would be treated as a single group under
U.S.S.G. § 3D1.2(d); (2) the base offense level was seven under

2

U.S.S.G. § 2B1.1(a)(1); (3) an increase of twelve levels was
warranted under U.S.S.G. § 2B1.1(b)(1)(G) because the loss was
between $200,000 and $400,000; (4) an increase of two levels was
warranted under U.S.S.G. § 2B1.1(b)(2)(A) because the offense
involved ten or more victims; and (5) because of Chen’s timely
acceptance of responsibility, U.S.S.G. § 3E1.1(a) and (b)
warranted a reduction of three levels. (See Resp’t Mem. in Opp’n
Ex. A at 2-3, ECF No. 97-1 (filed Dec. 16, 2014) [hereinafter
Plea Agreement].)
These alterations resulted in a stipulated offense level of
eighteen. (Id. at 3.)

After outlining Chen’s previous criminal

convictions, the parties stipulated that he was in Criminal
History Category IV. (Id. at 5.)

Adding U.S.S.G. § 2B1.6(a)’s

mandatory sentence of two consecutive years for Count Three, the
Plea Agreement provided for a “Stipulated Guidelines Range” of
81 to 95 months’ imprisonment. (Id.)

Chen also stipulated that

he would not
file a direct appeal; nor bring a collateral
challenge, including but not limited to an
application under Title 28, United States
Code, Section 2255 and/or Section 2241; nor
seek a sentence modification pursuant to
Title 18, United States Code, Section
3582(c), of any sentence within or below the
Stipulated Guidelines Range of 81 to 95
months’ imprisonment.
(Id. at 6.)

3

On July 31, 2012, Chen appeared before the Court and
entered a plea of guilty to Counts One, Two, and Three pursuant
to the terms of the Plea Agreement.

During the plea proceeding,

Chen confirmed that he had discussed his case and his decision
to plead guilty with defense counsel and was satisfied with
defense counsel’s representation of him. (Plea Tr. at 9-13.)
The Court confirmed that Chen understood the nature of the
charges against him and had discussed his decision to plead
guilty with defense counsel. (Id.)

Chen stated that he had read

and understood the Plea Agreement and that he had entered into
the agreement voluntarily. (Id. at 12-13, 22-23.)

The Court

then directed Chen’s attention to relevant provisions of the
Plea Agreement, including his waiver of appellate rights—and
right to file a petition for habeas corpus relief—if sentenced
to a term of imprisonment within the stipulated Guidelines
range. (Id. at 19-21.)

Chen indicated that he understood the

rights he was waiving. (Id.)
During his allocution, Chen admitted that, from March 2011
to April 2011, he conspired to commit credit card fraud by
ordering credit cards to which he was not entitled and having
the cards sent through the mail. (Id. at 24-25.)

He further

admitted that he “fraudulently order[ed] a credit card in the
name of another person” and “use[d] a real person’s information

4

to obtain [a] credit card under their name.” (Id. at 25.)

The

Court accepted Chen’s guilty plea. (Id. at 27.)
C. Petitioner’s Sentencing
The Probation Office prepared a Presentence Investigation
Report (“PSR”) which calculated Chen’s sentencing range under
the sentencing Guidelines at 81 to 95 months in accord with the
calculation set forth in the Plea Agreement. (PSR ¶ 95.)

The

PSR included in its calculations the victim enhancement
stipulation, (Id. ¶ 34), identifying three financial
institutions and at least ten additional victims “whose credit
information was used.” (Id. ¶¶ 25-26.)

The Probation Office

recommended a bottom-of-the-Guidelines sentence of 81 months’
imprisonment. (Id. at 22.)
On November 29, 2012, Chen appeared for sentencing.
Mulligan stated she had reviewed the PSR with Chen and had no
objections. (Sent. Tr. at 2.)

Mulligan argued that the Court

should impose a below-Guidelines sentence of 57 months because
Chen had attempted to render assistance to the Government in an
investigation during his pretrial detention and his criminal
history was overstated. (Id. at 3-6.)

The Government requested

that the Court impose an above-Guidelines sentence because of
(1) Chen’s extensive criminal history, (2) his attempted fraud
on the Court during the course of the case, (3) his attempt to
obstruct justice during his sentencing proceeding by causing

5

other people to send false and fraudulent letters to the Court
on his behalf, and (4) the fact that one of the charged
conspiracies took place while Chen was already incarcerated.
(Id. at 6-11.)

The Government urged the Court to impose a

sentencing enhancement for obstruction of justice and to decline
to credit Chen for acceptance of responsibility. (Id. at 10,
17.)
The Court reviewed Chen’s personal history, offense
conduct, and the applicable Guidelines range of 81 to 95 months’
imprisonment. (Id. at 15-20, 24.)

Although the Court found that

Chen’s submission of fraudulent sentencing letters was
“blatantly outrageous,” the Court found that it did not amount
to obstruction of justice and declined to remove the reduction
for acceptance of responsibility. (Id. at 18.)
In light of these factors, the Court imposed a 65-month
sentence on Counts One and Two (within the Guidelines range of
57-71 months) plus the mandatory, consecutive term of two years’
imprisonment on Count Three, totaling an aggregate sentence of
89 months’ imprisonment and three years’ supervised release.
(Id. at 19-20.)

Judgment was entered on December 3, 2012.
D. Petitioner’s Direct Appeal

On December 11, 2012, Chen appealed to the Second Circuit
and was appointed counsel, Ryan Thomas Truskoski (“Truskoski”).
On February 1, 2013, Truskoski filed a submission pursuant to

6

Anders v. California, 386 U.S. 738 (1967), stating that, after a
diligent examination of the record, he determined that there
were no meritorious grounds for appeal in this case. (Brief for
App-Def Chen at vii, No. 12-4947-Cr, ECF No. 19 (Feb. 1, 2013)
[hereinafter Appellant Brief].)

Chen moved pro se for a new

attorney on appeal. (Resp’t Mem. in Opp’n at 8.)

The Government

moved to dismiss the appeal on the basis of the Plea Agreement
and for summary affirmance on the basis that there were no nonfrivolous issues to be raised on appeal. (Id.)

By order dated

August 23, 2013, the Second Circuit granted the Government’s
motions to dismiss and for summary affirmance and denied Chen’s
motion for appointment of new counsel. (Mandate at 2, United
States v. Chen, No. 11 Cr. 1038 (Oct. 1, 2013), ECF No. 70.)
E. Petitioner’s § 2255 Motion
On June 20, 2014, Chen filed the instant motion to vacate,
set aside, or correct his sentence under 28 U.S.C. § 2255.
raises two grounds for relief:

Chen

(1) the PSR “stated only the

bank[s] are the victims but the U.S. Attorney [made] the plea to
250 or less victims and I was enhance[d] a lot of points for
that,” and (2) his counsel was ineffective in failing to argue
that the two-point victim enhancement under U.S.S.G. §
2B1.1(b)(2)(A) should not be imposed despite Chen having drawn
her attention to relevant cases “about victims” in the Second
Circuit. (Pet’r’s Mem. at 5-6.)

7

In his initial petition, Chen wrote “I have cases sa[ying]
[the] victims are only the financial institutions and if any
person suffers a temporary loss and [i]s reimbursed by the
banks, they are not the victims.

The case[s] are from [the]

2nd, 5th, 6th Circuit[s].” (Id. at 5.)

Chen claims that he

showed Mulligan these cases, “including 2nd Circuit decision[s],
and she said I am wrong.” (Id. at 6.)

The Government in its

response claims that during plea negotiations, Mulligan, at
Chen’s express request, brought to the Government’s attention
United States v. Stubblefield, 682 F.3d 502 (6th Cir. 2012) and
the Government advised Mulligan that “Stubblefield has never
been cited in this District or Circuit and is not the law in
this Circuit.” (Resp’t Mem. in Opp’n at 14.)

The Government

further states that the parties agreed, after thorough
negotiations, that there were “well over 10 victims in this
case.” (Id.)
Chen asserts that if Mulligan discussed only Stubblefield
with the Government, she “aband[on]ed” him and was
“ineffective.” (Pet’r’s Reply Mem. at 3.)

Chen also states that

he only agreed to the victim stipulation because “his first
language is Chinese” and he “depended heavily on his counsel[’s]
advice.” (Id.)

Had he known Mulligan had not raised the Second

Circuit cases, he “w[ould] never [have] agree[d] to the 2 points
enhancement.” (Id. at 25.)

8

II. Discussion
A.

Applicable Law

Acknowledging that Chen’s first language is Chinese and
that he moves as a pro se litigant, this Court interprets his
arguments liberally, to raise the strongest arguments that they
suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (per curiam).
A federal prisoner may challenge his sentence if it was
“imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a).

The Sixth Amendment assures

criminal defendants the right to effective assistance of
counsel, thus ineffective assistance is a constitutional basis
for relief under § 2255. See Morales v. United States, 635 F.3d
39, 43 (2d Cir. 2011).

Demonstrating ineffective assistance of

counsel requires the Petitioner to satisfy the two-prong test
established in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, the petitioner must first demonstrate that his
counsel’s assistance fell below an objective standard of
reasonableness. 466 U.S. at 687-88.

Mindful of a wide range of

reasonableness, the standard is measured under prevailing
professional norms. Id. at 687-688.

Counsel have basic duties

under Strickland, however these duties are not part of a
checklist, and the court must engage in a deferential analysis
of the totality of the circumstances. Id. at 688.

9

The

petitioner must overcome a “strong presumption” of
reasonableness. Id. at 689.

The Strickland test also applies

when petitioners accept plea agreements instead of going to
trial. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
The petitioner must also show that his counsel’s inadequate
assistance prejudiced the defense. Strickland, 466 U.S. at 687.
To prove prejudice, the petitioner must show that there is a
reasonable probability that, but for his counsel’s performance,
the result of the proceeding would have been different. Id. at
694.

“Reasonable probability” means “a probability sufficient

to undermine confidence in the outcome.” Id.

When challenging a

plea agreement, “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.” Hill, 474 U.S. at 59.
B. Analysis
1.

Waiver of Rights

A defendant may waive his right to collaterally challenge
his sentence in his plea agreement if he waives it knowingly and
voluntarily. See United States v. Monzon, 359 F.3d 110, 116 (2d
Cir. 2004).

During the plea hearing, Chen represented to this

Court that Mulligan had explained the Plea Agreement to him,
that they had discussed it, and that he had signed it freely and
voluntarily. (Plea Tr. at 12-13, 22-23.)

10

Chen expressed his

understanding that he waived his right to file a direct appeal
or “collateral challenge” if his sentence fell within or below
the stipulated Guidelines range, demonstrating the knowing and
voluntary nature of the waiver. (Id. at 20-21.)
Generally, a defendant who knowingly and voluntarily waives
the right to appeal, in exchange for the benefit of a plea
agreement, may not challenge a sentence imposed within the
stipulated Guidelines range. See United States v. SalcidoContereras, 990 F.2d 51, 53 (2d Cir. 1993).

Accordingly, any

challenge Chen brings to his sentence, which was within the
stipulated Guidelines range in the Plea Agreement, is barred by
his knowing and voluntary waiver of appeal rights.
“Claims of ineffective assistance of counsel can survive §
2255 waivers, but only when the claim relates to the negotiation
and entry of a plea or sentencing agreement.” United States v.
Cano, 494 F. Supp. 2d 243, 248 (S.D.N.Y. 2007).

The Second

Circuit held that:
[T]he refusal to apply such a waiver [of
ineffective assistance of counsel] only
allows appellate review of the
constitutionality of the process by which
the plea agreement was consummated. If the
constitutionality of that process passes
muster, the plea agreement’s waiver would
bar any consideration by the appellate court
of issues that fall within the scope of that
waiver. For instance, had [the defendant]
raised any issues about sentence, we would
have refused to consider them.

11

United States v. Hernandez, 242 F.3d 110, 114 (2d Cir. 2001).
Further, claims of ineffective assistance of counsel at
sentencing cannot be used to avoid the plain language of a
waiver agreement. See, e.g., United States v. Djelevic, 161 F.3d
104, 107 (2d Cir. 1998) (noting that if courts “were to allow a
claim of ineffective assistance of counsel at sentencing as a
means of circumventing plain language in a waiver agreement, the
waiver of appeal provision would be rendered meaningless”);
United States v. Brickhouse, No. 09-CR-1118 (KMK), 2017 WL
1049509, at *6 (S.D.N.Y. Mar. 16, 2017) (“[T]o the extent that
Petitioner quibbles with counsel’s advocacy at sentencing, his
claim is covered by the waiver in the Plea Agreement.”).
Chen claims that his counsel was ineffective during
sentencing, however he makes no argument that he did not
understand the waiver in the Plea Agreement or that Mulligan’s
ineffectiveness affected his acceptance of the Plea Agreement as
a whole.

Chen’s claim is that Mulligan was ineffective in

failing to make an argument to the Government that the two-point
victim enhancement under U.S.S.G. § 2B1.1(b)(2)(A) should not be
imposed despite Chen having drawn her attention to certain cases
in the Second Circuit.
However, because Chen is proceeding pro se, the Court
construes his petition liberally and interprets it to raise the
strongest argument it suggests—namely that his counsel was

12

ineffective in negotiating the terms of his plea agreement. See,
e.g., Negroni v. United States, 2017 WL 3300529, at *4 (D. Conn.
Aug. 2, 2017) (pro se petitioner could overcome an otherwise
valid appeal waiver by raising an ineffective assistance claim
with respect to advice he received in the process of accepting
his plea).
Nevertheless, as discussed below, Chen’s ineffective
assistance of counsel claim fails on the merits.

Thus, as

Chen’s sentence was within the stipulated Guidelines range, his
waiver was valid and enforceable.
2.

Failure to Raise Ineffective Assistance Claims on Direct
Appeal
Failing to raise an issue on direct appeal serves as a

procedural bar to bringing it in a collateral attack. See
Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992).

A

petitioner must show cause and prejudice to excuse prior failure
to raise a constitutional issue. See id.; see also United States
v. Frady, 456 U.S. 152, 168 (1982) (requiring cause and
prejudice for petitioner’s “double procedural default” at trial
and on appeal).

“[C]ause for a procedural default on appeal

ordinarily requires a showing of some external impediment
preventing counsel from constructing or raising the claim.”
Murray v. Carrier, 477 U.S. 478, 492 (1986).

“Mere [a]ttorney

ignorance or inadvertence is not ‘cause,’ but a petitioner may

13

establish cause by demonstrating that his counsel’s performance
was constitutionally deficient.” Pena v. United States, No. 09CR-0341 (VM), 2017 WL 3283954, at *3 (S.D.N.Y. June 30, 2017)
(internal quotation marks omitted).

Where, as here, the

defendant had new appellate counsel on direct appeal and the
ineffective assistance claim is based solely on the trial
record, the petitioner must still show cause for not bringing
the ineffective assistance claim on direct appeal and prejudice
resulting therefrom. Hernandez v. United States, No. 02 CV. 1663
(JGK), 2003 WL 223467, at *2 (S.D.N.Y. Jan. 31, 2003).
Chen claims that he did not raise his claim for ineffective
assistance on appeal because Truskowski “put in the [Anders]
brief without [his] permission, “only raise[d] a limited issue”
in the Anders brief, and “basically [] said [Chen] [had] no
ground[s] [for] appeal.” (Pet’r’s Mem. at 6-7.)

Chen further

states in his petition that “the 2nd Circuit [did] not allow
[him] to withdraw [the Anders brief] and re-appoint [a new]
lawyer.” (Id. at 7.)

However, courts in this District have held

that an appellate counsel’s filing of an Anders brief does not
justify a petitioner’s failure to raise claims of ineffective
assistance on direct appeal “because that counsel did nothing to
prevent [petitioner] from filing [a] pro se brief.” Jorge v.
United States, 818 F. Supp. 55, 57 (S.D.N.Y. 1993).

14

Moreover, even if Chen could show cause for failure to
raise his claims on direct appeal, he has not shown prejudice.
“To establish ‘prejudice,’ petitioner must show a reasonable
probability that, but for the alleged violation of federal law,
the outcome of his case would have been different.” Restrepo v.
Kelly, 178 F.3d 634, 638 (2d Cir. 1999).

Because, as discussed

below, Chen’s arguments are meritless, he has not demonstrated a
reasonable probability that, had Truskowski only raised an issue
with the effectiveness of Chen’s trial counsel on direct appeal,
the outcome of his case would have been different.
C.

Chen’s Petition Fails on the Merits

Even if Chen’s petition was not procedurally barred by the
waiver in his plea agreement or by his failure to raise these
issues on direct appeal, his arguments fail on the merits.
1.

Guidelines Range Miscalculation

The Court construes Chen’s petition to argue that the
stipulated Guidelines range in the Plea Agreement was
miscalculated because it included a two-point enhancement for
ten or more victims under U.S.S.G. § 2B1.1(b)(2)(A) even though
the only “victims” of Chen’s scheme were financial institutions.
The PSR states that Chen and his co-defendants “possessed, used
and transferred the personal identification information of other
persons” and that “[i]n addition to the banks that sustained
losses, Chen and his co-conspirators[’] actions [a]ffected at

15

least 10 victims whose credit information was used.” (PSR ¶¶ 2425.)

In his reply brief, Chen discusses at length several cases

which he claims support his argument that if “victims are only
the financial institution[s], and if any person suffers a
temporary loss and [is] reimbursed by the bank, they are not the
victims.” (Pet’r’s Mem. at 5.)

Chen specifically argues that

Mulligan should have discussed with the Government two of these
cases:

United States v. Abiodun, 536 F.3d 162 (2d Cir. 2008),

and United States v. Mohammed, 315 F. Supp. 2d 354 (S.D.N.Y.
2003), both decided in this Circuit. (Pet’r’s Reply Mem. at 25.)
The PSR does not explain when or if these victims were fully
reimbursed by their financial institutions.
In United States v. Abiodun, 536 F.3d 162 (2d Cir. 2008),
and United States v. Mohammed, 315 F. Supp. 2d 354 (S.D.N.Y.
2003), the two cases that Chen allegedly brought to Mulligan’s
attention, 1 the courts held that individuals who are immediately
reimbursed for their losses by financial institutions cannot be
considered victims for purposes of the enhancement under

1

In his reply brief, Chen also cites the Second Circuit case United
States v. Lacey, 699 F.3d 710 (2d Cir. 2012), for the proposition that
a “victim” is a person who suffered pecuniary harm. (Pet’r’s Reply
Mem. at 4.) However, the defendant in Lacey received a two-level
enhancement for an offense “committed through mass-marketing” under
U.S.S.G. § 2B1.1(b)(2)(A)(ii). Lacey, 699 F.3d at 714. The Court held
that “the mass-marketing enhancement is properly applied only when the
targets of the mass-marketing are also in some way victims of the
scheme.” Id. The mass-marketing enhancement was not applied to Chen’s
stipulated Guidelines range, thus, Lacey is not relevant here.

16

U.S.S.G. § 2B1.1 unless they suffered actual monetary loss. See
Abiodun, 536 F.3d at 168-69; Mohammed, 315 F. Supp. 2d at 36162.

However, in 2009, after the decisions in Abiodun and

Mohammed and before Chen was indicted and sentenced, the
definition of “victim” in § 2B1.1 was expanded “partly in
response to Abiodun,” to include “any individual whose means of
identification was used unlawfully or without authority.”
United States v. Jesurum, 819 F.3d 667, 671 (2d Cir. 2016).

The

Sentencing Commission explained that:
[T]he amendment amends the Commentary to § 2B1.1
to provide that . . . an individual whose means
of identification was used unlawfully or without
authority is considered a ‘victim’ . . . . An
identity theft case may involve an individual
whose means of identification was taken and used
but who was fully reimbursed by a third party
(e.g., a bank or credit card company). Some
courts have held that such an individual is not
counted as a ‘victim’ for purposes of the victims
table at § 2B1.1(b)(2). See . . . United States
v. Abiodun, 536 F.3d 162 (2d Cir. 2008) . . . .
The Commission determined that such an individual
should be considered a ‘victim’ for purposes of
subsection (b)(2) because such an individual,
even if fully reimbursed, must often spend
significant time resolving credit problems and
related issues, and such lost time may not be
adequately accounted for in the loss calculations
under the guidelines.
U.S.S.G. app. C., Vol. III, amend. 726, at 309-310.
The PSR clearly states that Chen’s actions affected “at
least 10 victims whose credit information was used” as part of
Chen’s fraudulent scheme. (PSR ¶ 25.)

17

Accordingly, Chen’s

argument that “if any person suffers a temporary loss and [i]s
reimbursed by the banks, they are not the victims” under
U.S.S.G. § 2B1.1(b)(2) is unavailing, and he has failed to show
that the stipulated Guidelines range was miscalculated.
2.

Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel fails unless a
defendant satisfies the two-part inquiry set forth in Strickland
v. Washington, 466 U.S. 668 (1984).

A petitioner must show that

(1) his counsel’s representation “fell below an objective
standard of reasonableness” under “prevailing professional
norms,” and (2) “affirmatively prove prejudice,” that is, show
that “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. 668,
at 687-88, 693-94.
Chen has not satisfied either prong of the two-part
Strickland inquiry.

First, he has not shown that Mulligan’s

counsel was ineffective. 2

Chen claims that during the plea

negotiation he brought to Mulligan’s attention four cases
regarding the two-point victim enhancement, but that Mulligan
“only brought up the Stubblefield case” with the Government.
(Pet’r’s Reply Mem. at 25.)

Chen argues that when the

2 To the extent that Chen were to argue that he was denied effective
assistance of counsel on appeal, “[t]he filing of an Anders brief does
not in itself constitute ineffective assistance of counsel.” Jorge v.
United States, 818 F. Supp. 55, 57 (S.D.N.Y. 1993).

18

Government informed Mulligan that Stubblefield “is not in this
district,” Mulligan “should [have] immediately brought up the
Mohammed and Abiodun cases which [were] decided by this
Circuit.” (Id.)

As an initial matter, “[t]he Supreme Court long

ago made clear that the Sixth Amendment does not require counsel
to raise every non-frivolous argument a client requests.”
Weingarten v. United States, 865 F.3d 48, 53 (2d Cir. 2017).
Courts on collateral review may not “second-guess reasonable
professional judgments and impose on . . . counsel a duty to
raise every ‘colorable’ claim suggested by a client.” Jones v.
Barnes, 463 U.S. 745, 754 (1983).
Further, as discussed above, the two-point victim
enhancement under U.S.S.G. § 2B1.1(b)(2)(A) was properly applied
to Chen’s stipulated Guidelines range.

Thus, Chen has not shown

that Mulligan’s failure to discuss Abiodun and Mohammed with the
Government was in any way ineffective. See United States v.
Arena, 180 F.3d 380, 396 (2d Cir. 1999), disapproved on other
grounds, Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393,
403 n.8 (2003) (“Failure to make a meritless argument does not
amount to ineffective assistance.”).
Second, Chen has not shown prejudice.

“In the context of a

guilty plea, this standard is read to require a reasonable
probability that, but for counsel’s errors, the defendant would
not have pled guilty and would have insisted on going to trial.”

19

Padilla v. Keane, 331 F. Supp. 2d 209, 215 (S.D.N.Y. 2004).
“With respect to a claim of ineffective assistance in
sentencing, the defendant must show a reasonable probability
that, but for counsel’s substandard performance, he would have
received a less severe sentence.” Gonzalez v. United States, 722
F.3d 118, 130 (2d Cir. 2013).
Chen claims that “if [he] knew [his] attorney never
discuss[ed] the 2 other cases [regarding victim-enhancement]
which w[ere] decided by the 2nd Circuit, I w[ould] never [have]
agree[d] to the 2 points enhancement.” (Pet’r’s Reply Mem. at
25.)

Chen has not shown that had it not been for Mulligan’s

alleged error in declining to discuss specific cases with the
Government, he would have foregone his guilty plea and proceeded
to trial.

Nor has Chen shown a reasonable probability that he

would have received a less severe sentence had he proceeded to
sentencing in the absence of a plea agreement, which, as the
Government points out, included benefits that significantly
lowered his sentencing exposure due to Mulligan’s negotiations
with the Government. (Resp’t Mem. in Opp’n at 15.)

Thus, Chen

has failed to show that Mulligan’s counsel was ineffective.
Conclusion
For the reasons described above, Chen’s motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255
is denied.

There is no need for an evidentiary hearing because

20

"the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.n 28 U.S.C.

§

2255 (b).
The Court declines to issue a certificate of appealability
because Chen has not made a "substantial showing of the denial
of a constitutional right." 28 U.S.C.
United States, 224 F.3d 125, 127

2253 (c) (2); Krantz v.

§

(2d Cir. 2000).

Court certifies, pursuant to 28 U.S.C.

§

Further, the

1915(a) (3), that any

appeal from this Order would not be taken in good faith.
Coppedge v. United States, 369 U.S. 438,

See

444-45 (1962).

The Clerk of the Court is respectfully directed to close
the case and enter judgment for the Government.
SO ORDERED.

Dated:

New York, New York
September 2 </ , 201 7

(J

21

John F. Keenan
United States District Judge