Walji v. USA
MEMORANDUM OPINION & ORDER #105642....Waljis November 19, 2014 petition is denied. In addition, a certificate of appealability shall be not granted. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). Pursuant to 28 U.S.C. 1915(a)(3), any appeal from this Opinion and Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 7/2/2015) (gr) Modified on 7/10/2015 (ca).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
OPINION & ORDER
DENISE COTE, District Judge:
On November 19, 2014, Abdul Walji filed a petition pursuant
to 28 U.S.C. § 2255 for a writ of habeas corpus.
He seeks to
vacate his conviction on the ground that his trial counsel was
Walji claims that he would have entered an earlier
plea of guilty if properly represented.
Walji also complains
that his attorney failed to object at his sentencing to an
improper loss calculation.
Walji contends that counsel’s errors
led to the imposition of a longer sentence.
For the following
reasons, the petition is denied.
Walji was charged in a complaint on December 10, 2012.
an indictment filed on March 21, 2013, he was charged with three
counts of wire fraud, and one count each of securities fraud,
commodities fraud, and conspiracy to commit securities and wire
These charges related to the investment firm Arista LLC
(“Arista”) operated by Walji and co-defendant Reniero Francisco
Through Arista, Walji and Francisco collected
approximately $10 million from 40 investors through
The defendants embezzled funds to which
they were not entitled and lost nearly the entirety of the
Walji was arraigned on these charges on
March 27, and was represented by retained counsel (“Counsel”).
Beginning in May, agents of the FBI began interviewing
investors victimized by Walji in a second scheme known as the
Allied Benefits/Stone Lamm fraud (“Allied Benefits” fraud).
Through his company Calpension, Inc., Walji administered pension
and welfare plans.
Walji made false representations about the
nature of the investments he had made and would make with the
plan funds and diverted client funds from those plans by means
of a Ponzi scheme, causing losses to approximately 40 clients in
an aggregate amount exceeding $11 million.
After Walji participated in a proffer session with the
Government on June 14, the Government advised Counsel that it
would not offer Walji a cooperation agreement.
waived indictment on July 2, and entered a plea of guilty
pursuant to a plea agreement with the Government (“Agreement”).
The superseding information contained three charges, two of
which stemmed from the Arista fraud, and one of which stemmed
from the Allied Benefits fraud.
Although the Agreement included a stipulated loss amount
not exceeding $20 million and a guidelines range of 121 to 151
months’ imprisonment, the Presentence Report (“PSR”) found that
the loss amount exceeded $20 million and that the guidelines
range was 151 to 188 months’ imprisonment.
submission did not dispute the loss amount calculated in the
PSR, but did ask for a non-guidelines sentence pursuant to 18 §
U.S.C. § 3553(a).
On November 15, Walji was sentenced principally to a term
of imprisonment of 151 months.
The Court adopted the PSR
guidelines calculation and declined to impose a non-guidelines
A sentence of 60 months and 120 months was entered on
the counts related to the Arista scheme.
A sentence of 151
months was entered on the count related to the Allied Benefits
The sentences were imposed to run concurrently.
The judgment of conviction was entered on November 20,
Walji did not appeal his conviction.
Walji filed this petition on November 19, 2014.
Government has opposed the petition, and on April 10, 2015,
Walji submitted a reply in support of his petition.
The standard for an ineffective assistance of counsel claim
is well settled:
In order to succeed on a claim of ineffective
assistance of counsel, a claimant must meet the twopronged test established by [Strickland v. Washington,
466 U.S. 668 (1984)]: (1) he must show that counsel's
performance was deficient, so deficient that, in light
of all the circumstances, the identified acts or
omissions were outside the wide range of
professionally competent assistance; and (2) he must
show that the 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
Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013)
(citation omitted). “The [ineffectiveness] claim must be
rejected if the defendant fails to meet either the performance
prong or the prejudice prong.”
Id. (citation omitted).
As clarified by his reply, Walfi contends in his first
claim that his Counsel was ineffective for failing to advise him
to promptly enter a plea of guilty to the Arista fraud charges
following his arrest on the complaint or his indictment.
the Government did not begin its investigation of the Allied
Benefits fraud in earnest until May of 2013, Walji argues that
an entry of a plea before May would have resulted in a shorter
sentence being imposed since the sentence would have been based
solely on his plea of guilty to the charges stemming from the
The first claim fails because Walji has failed to
Walji does not dispute that the
Government had learned of the Allied Benefits fraud in early
Victims began to contact the Government as soon as they
learned of the Arista charges that had been filed against Walji.
Moreover, Walji does not dispute that the Government would have
compiled sufficient evidence to indict him for and convict him
of the Allied Benefits fraud even if he had already entered a
plea of guilty to the Arista fraud.
He also does not suggest
that he is innocent of any of the charges filed against him and
does not argue that he would have chosen to contest the Allied
Benefits charges by proceeding to trial instead of entering a
plea of guilty.
As a consequence, Walji would have been charged
with and sentenced for the Allied Benefits fraud even if he had
promptly entered a plea of guilty to the Arista fraud.
Moreover, Walji has not suggested that a sentence on the
Allied Benefits fraud, even if imposed in a separate, as opposed
to consolidated, sentencing proceeding, would have resulted in a
total sentence shorter than the one he is now serving.
Accordingly, Walji’s first claim for ineffective assistance of
counsel is denied for his failure to show that he was prejudiced
by his failure to enter a more expedited plea to the Arista
fraud charges alone.
Walji’s second claim is that his attorney should have
advised him not to enter a plea agreement with the Government so
that Walji could contest the Government’s calculation of a loss
Walji contends that the total loss amount for all of
the fraudulent activity underlying his three counts of
conviction was $1.5 million because the loss amount is properly
calculated as the amount by which he was unjustly enriched.
Walji begins with the compensation he took and the funds he
improperly diverted for his personal use, which he calculates as
From this he subtracts fees of $900,000 that he
“properly” earned and $2 million in seized assets, resulting in
a net loss of $1.5 million.
This second claim fails as well, for at least two separate
In making his second claim, Walji does not contest
that the investors in his schemes invested over $20 million, and
that those amounts are properly recorded in the PSR.
indicated in the PSR, twenty-two levels are added to an offense
level when the total loss from the frauds is more than $20
Sentencing Guidelines 2B1.1(b)(1)(L).
As explained in
Application Note 3, loss is measured as the greater of actual
loss or intended loss from an offense.
It is only measured as
the gain from the offense when the loss cannot be reasonably
See United States v. Byors, 586 F.3d 222, 225-26
(2d Cir. 2009).
Accordingly, counsel did not err in this case
in failing to argue that the measure of loss should be Walji’s
unjust enrichment rather than the actual and intended loss
experienced by the investors.
Because of this result, it is
unnecessary to discuss whether Walji has properly calculated his
gain from his offenses.
In addition, Walji has again failed to show that he was
prejudiced by his Counsel’s advice that he enter the Agreement
with the Government, which included a loss calculation higher
than he now advocates.
As it turned out, the PSR rejected the
loss calculation recited in the Agreement.
And, at the
sentencing, the Court adopted the PSR’s loss calculation.
part of the sentencing proceeding, the Court also ordered Walji
to pay restitution of over $21 million.
Walji’s November 19, 2014 petition is denied.
a certificate of appealability shall be not granted.
petitioner has not made a substantial showing of a denial of a
federal right and appellate review is, therefore, not warranted.
Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998);
Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990).
to 28 U.S.C. § 1915(a)(3), any appeal from this Opinion and
Order would not be taken in good faith.
States, 369 U.S. 438, 445 (1962).
Coppedge v. United
The Clerk of Court shall
close the case.
New York, New York
July 2, 2015
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?