United States v. Wehausen , 820 F. Supp. 2d 128 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARLES A. WEHAUSEN,
_ _ Criminal No. 07-251 (CKK)
P@*"‘°“@’» (civn Acti@n No. 09-1710)
v.
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION
(October 31, 201 l)
Presently before the Court is Petitioner Charles A. Wehausen’s [27] Motion to Vacate
under 28 U.S.C. § 2255. Wehausen pled guilty to one count of conspiracy to commit mail fraud
in violation of 18 U.S.C. § 371 and one count of tax evasion in violation of 26 U.S.C. § 7201
pursuant to a plea agreement entered on February ll, 2008. On October 31, 2008, on the
conspiracy count, the Court sentenced Wehausen to thirty three (33) months of imprisonment
followed by thirty six months of supervised release, a special assessment of $100, and restitution
in the amount of $188,941 .OO. On the tax evasion Count, the Court sentenced Wehausen to
thirty three (33) months incarceration followed by thirty six (36) months supervised release, a
special assessment of $100, and restitution in the amount of $55,260.00.1 Both sentences were to
run concurrently.
Wehausen filed his § 2255 motion on September 2, 2009, seeking to reduce his term of
‘ Wehausen’s motion incorrectly states that he was sentenced to thirty six months of
incarceration and three years of supervised release. Pet’r’s Mot. to Vacate Sentence at l.
Wehausen’s actual sentence was thirty three (33) months of imprisonment and thirty six (36)
months of supervised release on each count, to run concurrently.
incarceration by six months because of (l) ineffective assistance of counsel, and (2) failure of the
Court to adequately consider the sentencing factors set forth in 18 U.S.C. § 3553(a) in light of
Booker v. United States, 540 U.S. 220 (2005). The Government submitted its [3 8] Memorandum
in Opposition on March l5, 20l0, including a declaration by Wehausen’s defense counsel under
28 U.S.C. § l746. Wehausen did not file a reply, nor did he submit his initial petition under
penalty of perjury. Therefore, the Court finds the facts as stated in defense counsel’s declaration
as uncontroverted. Based upon the parties’ briefs, the applicable case law and authorities, and
the record as a whole, for the reasons explained below, the Court finds that Wehausen’s claims
are wholly without merit. Accordingly, the Court shall DENY Wehausen’s § 2255 motion
without an evidentiary hearing.
I. LEGAL STANDARD
Under 28 U.S.C. § 2255 , a prisoner in custodyz under sentence of a federal court may
move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes 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 attacl<." 28 U.S.C. §
2255(a). The circumstances under which such a motion will be granted, however, are limited in
2 According to the F ederal Bureau of Prison’s nmate locator
(http://www.bop.gov/iloc2/LocateInmate.j sp), Weha en was released from incarceration on
September 3, 20l0. Wehausen’s motion challenges o ly the length of his term of incarceration,
and thus is likely moot as he has already received the elief specifically requested in his motion.
See Burkey v. Marberry, 556 F.3d 142, 146-150 (3d ir. 2009). However, because the parties
briefed the motion prior to Wehausen’s release, the C urt will presume Wehausen could show
collateral effects from the calculation of his offense 1 vel and the length of his sentence, and will
therefore evaluate Wehausen’s petition on the merits. See United States v. McCoy, 313 F.3d 56l,
564 (D.C. Cir. 2002) (en banc).
light of the premium placed on the finality of judgmerits and the opportunities prisoners have to
raise most of their objections during trial or on direct
prisoner must clear a significantly higher hurdle than '
States v. Frady, 456 U.S. 152, 166 (1982). Nonethele
records of the case conclusively show that the prisone
grant a prompt hearing thereon, determine the issues,
of law with respect thereto." 28 U.S.C. § 2255(b). Tl
is entrusted to the district court’s discretion, particulai
presided over the proceeding in which the petitioner c
States v. Morrz'son, 98 F.3d 619, 625 (D.C. Cir. 1996)
plainly appears from the motion, any attached exhibit
the moving party is not entitled to relief, the judge mu
Section 2255 Proceedings for the United States Distri
A prisoner may not raise a claim on collateral
direct appeal unless he can first demonstrate either: (l
"prejudice" as a result of the alleged violation, or (2)
was convicted. Bousley v, United States, 523 U.S. 61claims of ineffective assistance of counsel in a § 2255
prejudice’ for not having raised such claims on direct
raised for the first time in a § 2255 motion." United §
(D.D.C. 2000) (citing United States v. Johnson, No. 9
May 28 1999)),61/§"0’, 22 F. App’x 3 (D.C. Cir. 2001)
appeal "[T]o obtain collateral relief a
Nould exist on direct appeal.” United
ss, “unless the motion and the files and
r is entitled to no relief, the court shall . . .
and make findings of fact and conclusions
ie decision whether or not to hold a hearing
ly where, as here, the reviewing judge
laims to have been prej udiced. United
, cert. dem``ea’, 520 U.S. 1131 (1997). "If it
;, and the record of prior proceedings that
st dismiss the motion." Rule Goveming
:t Courts 4(b).
appeal that he could have contested on
) "cause" for his failure to do so and
‘actual innocence" of the crime of which he
4, 622 (1998). "Where a petitioner raises
motion, he need not show ‘cause and
appeal, as these claims may properly be
'tates v. Cook, 130 F. Supp. 2d 43, 45
8-3110, 1999 WL 4l4237, at *l (D,C. Cir.,
II. BACKGR(
A. Underlying Cona'uct
During the time relevant for the indictment, th
)UND
e Government Services Agency contracted
with Preventative Maintenance Services Company ("PM Services") to operate and maintain
mechanical equipment at the Cohen and Switzer fedei
Petitioner was employed by PM Services as the Chief
buildings. Id. at 16:1-6. Wehausen and his superviso
subcontractors employed by PM Services. Ia'. at 16:1
July 2003, at Wehausen’s instruction, various subcon1
to PM Services. Ia’. at 18:1 1-17. PM Services in Was
orders for the inflated amounts to company headquart
18: 18-24. The GSA would pay the requested amount
submit payment to the subcontractor. Id at 19:4-1 8.
al buildings. 02/11/08 Tr. at 16:4-9.
Engineer and Proj ect Manager for both
r were the primary contacts for the
5-22. Between December 2000 and at least
ractors submitted falsely inflated invoices
hington, D.C. would then submit purchase
ers in Florida via Federal Express. Id. at
to PM Services, which in turn would
The subcontractors would then pay a
portion of the excess monies in the form of either caslii or check to Wehausen or his supervisor.
Id. at 19:19-20:1. The checks to Wehausen were mad
Heating and Air Conditioning, and deposited in an ac<
e payable to Wehausen’s company TNT
:ount established by Wehausen for TNT.
Id. at 20:2-15. Wehausen received at least $167,209 iin kickbacks from PM Services
subcontractors. Ia’. at 23 :2 1 -24; 28:1-18. Wehausen c
federal income tax returns in order to avoid the increa
the additional income, which amounted to $55,260 ov
B. Indictment and Charges
Plaintiff was indicted by a grand jury on Septe
lid not report any of the income on his
sed tax liability associated with reporting
er three years. 2/11/08 Tr. at 20:16-21:19.
mber 28, 2007 on one count of conspiracy
to defraud the United States in violation of 18 U.S.C. §§ 371 & 2, and one count of mail and
honest services fraud in violation of 18 U.S.C. § 1341, 1346, & 2. Criminal Action No. 07-251
(CKK), ECF. No. 1. The indictment further sought criminal forfeiture in the amount of $373,500
pursuant to 18 U.S.C. § 981(a)(1)(C) (as incorporated by 28 U.S.C. § 2461(c)), which
represented the "sum of money equal to the amount of money constituting, or derived from,
proceeds obtained, directly or indirectly, as the result of a mail fraud scheme, in violation of 18
U.S.C. § 1341, for which the defendant is jointly and severally liab1e." Ia'. at 11-12. Wehausen
was further charged in an information with one count of attempting to evade or defeat income tax
in violation of 26 U.S.C. § 7201. Criminal Action No. 08-cr-23 (CKK), ECF. No. 1.
C. Plea Negotiatz'ons
Wehausen retained Mr. Mallon Snyder on October 16, 2007, and later retained Mr. Henry
Hunter as a sentencing consultant. Gov’t’s Ex. A ("Snyder Decl.") at 11 3-4. The Government’s
initial plea offer purportedly listed the loss amount for sentencing as $373,500. Pet’r’s Mot. to
Vacate Sentence at 5. At Wehausen’s direction, Mr. Snyder rejected the Government’s initial
offer on the basis of the loss amount. Id. at 5; Snyder Decl. at 11 5. The Government’s revised
offer stated "[b]oth parties agree that the loss attributable to the defendant’s participation in the
conspiracy to commit mail [sic, fraud], pursuant to §2B1.1, is at least $167,209. The parties
reserve the right to introduce evidence at the time of sentencing concerning the issue of loss in
excess of $167,209'." Snyder Decl., Attach. A (1/29/C8 Plea offer) at 11 3. Wehausen reviewed
the revised offer with Mr, Snyder (2/11/08 Tr. at 29:13-16), and then instructed Mr. Snyder in
writing to accept the revised plea offer (Snyder Decl. Attach. C (1/29/08 Note C. Wehausen to
M. Snyder). Pursuant to that agreement, on February 11, 2008, Wehausen pled guilty to one
count of conspiracy to commit mail fraud in violationlof 18 U.S.C. § 371 and one count of tax
5
evasion in violation of 26 U.S.C. § 7201. Case No. 0
7-251 (CKK), ECF No. 9. Wehausen
understood that the offense level for the mail fraud count would be either 10 or 12, depending on
what level of loss the Government could prove at sentencing 2/11/08 Tr. at 36:11-22; 37:21-
38:3; 39:10-21.
D. Sentencing
The United States Probation Department, issu
Report on August 6, 2008. Gov’t’s Ex. 3 (Receipt an
ed the initial Presentence Investigation
d Acknowledgment of Presentence Report).
Mr. Snyder attempted to meet with Wehausen on several occasions, but Wehausen cancelled
each appointment. Counsel ultimately discussed the salient provisions of the Presentence Report
over the telephone with Wehausen, who, at Mr. Snyd<
discuss the report. Snyder Decl. at 11 9. Both parties i
:r’s request, also met with Mr. Hunter to
dentified inaccuracies in the report, and
filed their objections on August 18, 2008. Id. The Government noted that the amount of
restitution apportioned to Wehausen was $188,941, n
Gov’t’s Ex. 2 (Gov’t’s Obj. to Presentence Report, 08
Wehausen argued the total amount of kickbacks to be
was the fair market value of services provided by TN'
Presentence Report at 11 25; Def.’s Mem. in Aid of Se
3. Wehausen was unable to provide any evidence to s
provided for certain amounts alleged as kickbacks due
;)t $202,276 as the report initially indicated.
/18/08 Ltr. J. Taylor to K. Cave).
$163,244.20, $83,160 of which he claimed
l`` and billed through the subcontractors.
ntencing, Case No. 07-251, ECF No. 14, at
upport his claim that services were
: to a fire at his residence which destroyed
the alleged relevant records. Id. at 2-3. The Govemrfiient argued the claim was irrelevant
because Wehausen hid the existence of TNT from Pl\/
use TNT to provide any services, and because he was
through his PM Services salary. Gov’t’s Ex. 2. Furth
6
l Services, so PM Services never agreed to
already compensated for his services
er on behalf of Wehausen, Mr. Snyder
objected to the total loss amount of $384,500, and not
calculation if the loss total was $384,500 instead of $1
Obj. to Presentence Report, 08/18/08 Ltr. M. Snydert
Wehausen’s claim that some of the funds received in t
TNT.3 Id. The final report dated September 3, 2008 t
agreement concerning loss: the parties agreed the loss
parties were free to present evidence at sentencing reg
Report at 11 7. The report also notes in response to Mr
was based on the total loss attributable to the conspira
$188,941 was apportioned to Mr. Wehausen. Id. at p.
In drafting Petitioner’s Memorandum in Aid o
Wehausen that his version of events varied from the a
position regarding loss was not likely to be successful
Snyder to C. Wehausen). Nevertheless, Mr. Snyder in
ed the two level difference in the guidelines
67,209. Snyder Decl., Attach. G (Def.’s
3 K. Cave). Mr. Snyder also reiterated Mr.
he scheme were for work performed by
tilized the language from the plea
amount was not less than $167,290, but the
arding the final amount. Presentence
. Snyder’s objection, that the loss amount
cy, though for restitution purposes only
21.
fSentencing, Mr. Snyder informed
:counts of his co-conspirators, and his
Snyder Decl,, Attach. 1 (09/16/08 Ltr M.
cluded Wehausen’s version of the fraud in
the final memorandum. Def.’s Mem. in Aid of Sentericing at 2-3. During a pre-sentencing
telephonic conference with the Court, Mr. Snyder con
that the total loss amount should be only $167,209. 0‘
indicated that should the amount remain in dispute, th
Lillicotch, one of the co-conspirators, as a witness wh
additional monies were part of the kickback scheme e
tinued to advocate for Wehausen’s position
9/22/08 Tr. at 6:24-7:7. The Govemment
e Govemment would provide Mr.
o would testify to the fact that the
qcompassed by the conspiracy. Id. at 7116-
3Defendant’s objections also addressed the issue of grouping the offenses for Guidelines
purposes. Petitioner does not raise the grouping issue
not re-examine the issue.
in his motion, and therefore the Court does
24. As the Court pointed out to Mr. Snyder, if Mr. Li
found his testimony to be credible, as a matter of law
llicotch did testify as such, and the Court
the additional amounts would be part of the
conspiracy. Ia'. at 11:3-15. Mr. Snyder also argued on Mr. Wehausen’s behalf that part of the
kickbacks he received were actually for work perform
evidentiary support for this claim, the Govemment po
Wehausen conceded the loss amount was not less thai
thus the breakdown of that amount as payments for se
irrelevant. la’. 16-17; 19:4-20:20.
Following the telephonic conference with the
that his arguments regarding the loss involved in the c
immediately persuaded the Court as to the validity of
ed. Ia’. at 16-17. Besides the lack of
inted out that in the plea agreement, Mr.
i $167,209(2/11/08 Tr. at 23:21-24), and
rvices work versus kickbacks was
Court, Mr. Snyder conveyed to Wehausen
onspiracy and restitution amounts had not
After hearing the Government’s arguments and questions by the Court as to the nature of proof
available to contradict the Govemment’s evidence, l\/Ii
Wehuasen that he should consider agreeing to the loss
view that from a tactical perspective, persisting in tho
prison term. In light of the discussions with Mr. Snyc
conceded that the total loss amount was at least $200,
$188,941 was appropriate. Id. at 18. He explained th
amounts, but with the prospect of jail time, Id. Weha
the loss amount and to waive the evidentiary hearing.
Motion Regarding Sentencing Witnesses and Joint M
Date, Case No. 07-251, ECF. No. 18) at 1111 1, 2.
At sentencing on October 31, 2008, the Court
8
r. Snyder, as did Mr. Hunter, advised
amount and restitution. lt was counsel’s
se arguments would not result in a lesser
er and Mr. Hunter, Wehausen finally
000, and the apportioned restitution of
at he was concerned not with the monetary
usen thus agreed to drop the objection to
Id.; see also Snyder Decl., Attach. L (Joint
otion for October 31, 2008 Sentencing
began by confirming that the objections to
Wehuasen’s position. Snyder Decl. at 11 17.
the loss amount and apportionment of restitution had
After resolving the grouping issue, the Court detailed
ranges for both offenses. Id. at 6:22-7:22. Wehausen
been withdrawn. 10/31/2008 Tr. at 3:5-22.
the calculation of the relevant guidelines
did not object at that time, or while he was
addressing the court. See ia'. at 34:9-36:16. The Couit also heard from the Government, Mr.
Snyder, Wehausen’s then-employer, and Wehausen’s
age, lack of other criminal history, education, job hist
responsibility, and community involvement, among ot
brother. The Court considered Wehausen’s
;)ry, mental health, his acceptance of
her factors. Id. at 36:17-39:9. However, in
determining Wehausen’s sentence, the Court also recognized that Wehausen himself had initiated
the kickback scheme, motivated only by greed, and ha
would have continued unnoticed. Ia'. at 43:3-45:1. U
to concurrent terms of 33 months incarceration for eac
release, $188,941 restitution to the United States Trea
Revenue Service, and a special assessment of $200.
III. DISCUSS
Petitioner seeks to reduce his sentence by six r
assistance of counsel and errors by Respondent and th
Petitioner’s alleged errors is evaluated in turn, but nor
A. Wehausen Faz'led T 0 Show Ine]j’ective 1
Wehausen contends that his legal representatic
counsel failed to object on various bases to the presen
A defendant claiming ineffective assistance of counse
»
d he not been laid off, the scheme likely
ltimately, this Court sentenced Wehausen
h count, followed by 36 months supervised
sury, $55,260 restitution to the internal
ION
nonths, on the basis that ineffective
e Court let to a higher sentence, Each of
e have merit.
lssz``stance OfCounsel
n was constitutionally deficient when his
tence report and at the sentencing hearing.
must show (1) "that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms," and (2) "that this error caused [him] prejudice
9
." United States v. Hurt, 527 F.3d 1347,
1356 (D.C. Cir. 2008) (citation omitted). "Judicial sc
highly deferential. lt is all too tempting for a defendar
rutiny of counsel's performance must be
t to second-guess counsel's assistance after
conviction or adverse sentence," Strickland v. Washinzgton, 466 U.S. 668, 689 (1984). lt is the
petitioner’s burden to show that counsel’s errors were
to be functioning as the counsel guaranteed by the Six
-U.S.-, 131 S. Ct. 770, 787 (2011). "The reasonablen
or substantially influenced by the defendant's own stat
counsel's conversations with the defendant may be cri
"so serious" that counsel could not be said
th Amendment. Harrington v. Rz``chter,
ess of counsel's actions may be determined
ements or actions. . . . [l]nquiry into
tical to a proper assessment of . . . counsel's
other litigation decisions." Ia’. at 692, ln evaluating ineffective assistance of counsel claims, the
Court must give consideration to "counsel’s overall p<
U.S. 365, 386 (1986)), and "indulge a strong presump
wide range of reasonable professional assistance" (Str
defendant must show that there is a reasonable probab
errors, the result of the proceeding would have been d
"reasonable probability" is "a probability sufficient to
]d. at 694.
Petitioner identifies five alleged errors by cour
assistance of counsel: (l) failure to object to the loss a
Report ("presentence report"); (2) failure to provide \ll
report; (3) failure to object to the increased loss amoui
reconcile the loss and restitution amounts as required
10
>
z
rformance," (Kz'mmelman v. Morrison, 477
tion that counsel’s conduct falls within the
z'ckland, 466 U.S. at 689). Moreover, "[t]he
ility that, but for counsel's unprofessional
ifferent." Stricklana’, 466 U.S. at 694. A
undermine confidence in the outcome."
isel that purportedly amount to ineffective
mount in the Presentence Investigation
/ehausen with a copy of the presentence
it used in sentencing; (4) failure to
Jy the plea agreement; and (5) failure to
resolve objections to the presentence report during the sentencing hearing." The record shows
that Mr. Snyder did not commit any of the asserted errors, and in any case, Wehausen cannot
show prejudice from any of these "errors."
1.
Counsel Properly Objected to the Presentence Report
Petitioner’s initial basis for relief is that his counsel failed to properly object to the loss
amount provided in the initial presentence report. Foi the first of many times throughout his
petition, Wehausen argues that the loss amount used to calculate the appropriate sentencing
guideline range should have been the amount of kickl: acks he actually received ($167,209),
rather than the total amount of kickbacks paid as part
Petitioner’s assertion, both Mr. Snyder and the Gover
report on the basis that the loss amount was incorrect.
The revised presentence report utilized the language r
agreement. Presentence Report at 11 7. Defense couns
Report. The Court at the sentencing hearing indicatec
setting the applicable sentencing guidelines range.
2. Defense Counsel Provided Wel
Report
Petitioner alleges he never received a copy of
provided one by his case manager from the Bureau of
4 Wehausen also refers generally to an "impro]
Pet’r’s Mot. to Sentence at 2. To the extent this alleg
amount used to calculate Wehausen’s mail fraud sent<
increase in Wehausen’s guidelines range for failing to
year from criminal activity. Given this increase was e
of the conspiracy ($3 84,500). Contrary to
nment objected to the initial presentence
Snyder Decl., Attach. G; Gov’t’s Ex. 2.
egarding loss provided in the plea
,el objected as necessary to the Presentence
l the resolution to the objection prior to
iausen with a Copy of the Presentence
the presentence report until he was
Prisons once incarcerated. Pet’r’s Mot. to
:s an error other than the increased loss
:nce, this could only refer to the two level
report income of more than $10,000 per
xplicitly outlined in the Plea Agreement,
Wehausen agreed to the enhancement. Case No. 07-2
11
51 (CKK), ECF No. 9, at 2.
aer" two level enhancement of his sentence.
Vacate Sentence at 4. Federal Rule of Criminal Procc
provide the defendant, the defendant’s attorney, and t
Presentence Report at least 35 days before sentencing
by the defendant. Fed. R. Crim. P. 32(e)(2). The unc
x
dure 32(e) requires the probation office to
ne Govemment with copies of the
However, this requirement can be waived
ontroverted record indicates Mr. Snyder
attempted to meet with Wehausen to discuss the Presentence Report on several occasions, but
Wehausen canceled each appointment, and declined t
report via facsimile. See Snyder Decl. 11 9. However,
Wehausen, the salient provisions of the report and lik
to discuss the report. Wehausen signed a form dated
3 have Mr. Snyder send him a copy of the
counsel discussed on the telephone with
:wise had Wehausen meet with Mr. Hunter
august 18, 2008 indicating he received and
reviewed the contents of the Presentence Report. Gov’t’s Ex. 3. This was more than the
required 35 days before Wehausen’s sentencing on Oc
:tober 31, 2008.
Even if the Court were to ignore Wehausen’s signature indicating he received the report
and Mr. Snyder’s declaration, Wehausen waived any t
at his sentencing hearing. See United States v. Towns
1999). By participating in the sentencing proceedings
objecting to his purported failure to receive a timely c
:laim on this basis when he failed to object
ena’, 178 F.3d 558, 562-63 (D.C. Cir.
, including addressing the Court, without
opy of the Presentence Report, Wehausen
cannot now claim his counsel was ineffective for failing to provide him with the report. Finally,
Wehausen cannot identify any prejudice from this alle
ged error. As previously explained, Mr.
Snyder lodged objections to the portions of the presentence report Wehausen takes issue with,
thus Wehausen cannot show how his receipt of the prc
fact receive it or have knowledge of its contents~miglt
less changed the outcome of the proceedings.
12
~sentence report-assuming he did not in
t have led to additional objections, much
3. The Government was not Reciu
ired to Prove the Loss Amount at
Sentencing Once Wehausen Stijpulated to that Fact
Petitioner next argues that Mr. Snyder failed tc
increase the loss amount to $384,500 at sentencing. P
Though the Government never made a formal motion
argue that Mr. Snyder failed to object to the Governm
for sentencing purposes. Petitioner further contends tl
evidentiary hearing and never required the Governme1
amount. Ia’. at 8. The record proves otherwise.
Following Mr. Snyder’s objections to the loss
3 C€
object to the Govemment s motion" to
et’r’s Mot. to Vacate Sentence at 7.
the Court reads Petitioner’s motion to
ent’s attempt to increase the loss amount
iat Mr. Snyder never requested an
it to produce evidence of the increased
amount in the Presentence Report, the
Court held a telephonic conference with counsel to discuss the disputed portions of the report. ln
response to the Court’s question, the Government explained that while Wehausen himself
received only $177,2095 in kickbacks, his unindicted <
bringing the total for the conspiracy to $384,500. 9/21
Sentencing Memorandum and during the telephonic c
argued the loss amount should be only $167,209. Id.
inquiry as to the whether this was a factual or legal iss
factual dispute as to whether the additional amounts vi
entirely separate acts by the co-conspirator. Id. at 11:i
additional kickbacks to the conspiracy, the Governme
:o-conspirator received additional amounts
Z/08 Tr. at 5:13-24. ln Defendant’s
onference with the Court, Mr. Snyder
1t6:24-7:7. ln response to the Court’s
ue, the parties agreed it was merely a
tere part of the underlying conspiracy or
S-15. 'l``o establish the relationship of the
nt stated it would provide one of the co-
conspirators, Mr. Lillicotch, as a witness at an evidentiary hearing to show the additional
5 The parties routinely referred to Wehausen’s
Wehausen also admitted to receiving $10,000 in cash
in addition to the $167,209. 09/22/11 Tr. at 24:1-23.
13
direct receipts as totaling $167,209, but
from Mr. Lillicotch as part of the scheme
amounts were attributable to the same conspiracy. Id.l
Hunter, strongly advised Wehausen not to contest the l
view, in gaining a lesser sentence.
Mr. Snyder indicates he convinced Wehausen t
restitution amounts following the teleconference. Sny
with the filings in this case. Mr. Snyder pursued the o
Report, in Defendant’s Memorandum in Aid of Sentei
teleconference. lt was not until after the telephonic cc
withdrew the objections and waived the evidentiary hc
Attach. L. Wehausen cannot credibly argue that his at
at 7:16-24. Defense counsel, as did Mr.
oss amount as it would not assist, in his
o withdraw his objections to the loss and
der Decl. at 1111 17-18. This is consistent
bjections with respect to the Presentence
icing, and even before the Court in the
nference with the Court that Mr. Snyder
aring on October 20, 2008. Snyder Decl.,
tomey’s refusal to continue with a losing
argument was somehow deficient representation, particularly when the only evidence in the
record indicates Wehausen instructed his counsel to cc
)ncede the loss and restitution amounts.
Once Wehausen stipulated that the loss amount was between $200,000 and $400,000, the
Govemment was no longer required to prove the precise amount in order to trigger the increased
guideline range. Blakely v. Washington, 542 U.S. 296guilty, the [Government] is free to seek judicial senteri
either stipulates to the relevant facts or consents to jud
Apprendi v. New Jersey, 530 U.S. 466 (2000), is misp
elements that increase the defendant’s sentence above
5
310 (2004) ("When a defendant pleads
ce enhancements so long as the defendant
icial factfinding."). Wehausen’s citation to
aced. Apprendi only requires that
the statutory maximum be found beyond a
reasonable doubt. Id. at 490. Here, the two-level enhancement for the increased loss amount
increased Wehausen’s potential sentence from 33 to 4
maximum of 60 months for each count. 18 U.S.C. 35
because appellant pleaded guilty and was not sentence
14
1 months, well below the statutory
71(d). "Apprendz' is not implicated here
d beyond the statutorily mandated
maximum." United States v. Freeman, No. 03-3038,
2004).
4. Defense Counsel did not Err in
Amounts to Differ
Petitioner further alleges that Mr. Snyder errec
amounts at sentencing to differ, in violation of the ple
Sentence at 10. Paragraph five of the Plea Agreemen
"agrees to the entry of a money judgment of forfeiture
sentencing loss as determined by the Court at the time
2004 WL 180268, at *l (D.C. Cir. Jan. 21,
Allowing the Restitution and Loss
l in allowing the loss and restitution
a agreement, Pet’r’s Mot. to Vacate
t titled "forfeiture" states that Wehausen
in a total amount equal to the defendant’s
~ of sentencing." However, the parties
agreed to apportion the restitution amongst the co-corispirators, allotting Mr. Wehausen
$188,941. See Presentence Report at 21. Wehausen¢
the amounts, making sure the loss amount utilized the
restitution purposes. This argument is unpersuasive f
specifically conceded the loss amount was between $1
apportioned loss of $188,941. Snyder Decl. Atjl 18.
amount even lower than the restitution amount, albeit
exclude a co-conspirator’s receipts as part of the total
parties reached an agreement making Wehausen liable
argues Mr. Snyder should have reconciled
lower figure the parties stipulated to for
or two reasons. First, Wehausen
200,000 and $400,000, and agreed to the
}Second, Mr. Snyder advocated for a loss
tunsuccessfully. Faced with the inability to
?loss for the conspiracy, the fact that the
: in terms of restitution for only $188,941
rather than $384,500 (joint and several with the co-cohspirators) demonstrates Mr. Snyder’s
competent legal representation of Wehausen’s interes
5. Defense Counsel did not Err in
ln the context of the sentencing hearing, Weha
(1) failing to resolve objections to the Presentence Re
15
ts.
Failing to Obiect at the Sentencing Hearing
usen alleges Mr. Snyder was ineffective for
port; and (2) failing to object to inadequate
proof of the restitution and loss amounts. Neither contention has merit. First, the defense
withdrew its objection regarding the loss amount and
evidentiary hearing upon convincing Wehausen that c
sound position to adopt as it lacked evidentiary suppo
petition fails to identify any other outstanding objectic
how the prior objections would have been resolved in
if they had been resolved in his favor, the thirty three
would have been within the guidelines range for an of
if Wehausen could show that continuing with the obje
requested the Court cancel the scheduled
ontinued objection was not a tactically
rt. See supra at Part lll.A.3. Wehausen’s
ns, or even provide any argument as to
his favor at the sentencing hearing. Even
month sentence Wehausen received still
fense level of 18 rather than 20. "l``hus even
ction probably would have reduced the
offense level to 18, Wehausen cannot show a sufficient probability that the Court would have
imposed a shorter sentence to undermine confidence iin the proceeding. Second, as the Court
explained, because the Defendant stipulated to both tl
was necessary. 1a’.
Petitioner Faz``lea’ T0 Show Counsel ’s (
Defz``cz``ent
B.
The Court "assess[es] counsel’s overall perfor
determine whether the ‘identified acts or omissions’ o
rendered reasonable professional assistance." Kz``mme
(1986) (quoting Strickland, 466 U.S. at 689)). Becau
effective assistance in any given case,’ unless conside
performance, before and at trial, it will be ‘all too easj
after it has proved unsuccessful, to conclude that a pa
unreasonable."’ Ia'. (quoting Stricklana’, 466 U.S. at 4
16
e loss and restitution amounts, no proof
)verall Performance Was Constitutionally
mance throughout the case in order to
vercome the presumption that a counsel
lman v. Morrz``son, 477 U.S. 365, 386
'e "‘[t]here are countless ways to provide
ration is given to counsel's overall
/ for a court, examining counsel's defense
'ticular act or omission of counsel was
90).
Despite identifying several purported omissions or errors by his defense counsel,
Wehausen ultimately failed to show Mr. Snyder’s overall performance was deficient. Mr. Snyder
negotiated a more favorable plea deal, objected to inaccuracies in the presentence reports,
zealously advocated for Wehausen’s positions with regards to Wehausen’s claim of work
performed for the kickbacks until realizing their futi1ity, and secured a restitution amount
reducing Wehausen’s liability by over $200,000. Combined with the seriousness of the offense,
Wehausen cannot credibly argue that Mr. Snyder’s performance overall was constitutionally
deficient.
C. The Court Properly Appliea' Section 3553(a) In Determz``ning Wehausen ’s
Sentence
Petitioner’s final claim for relief alleges the Court failed to properly consider the factors
under 18 U.S.C. § 3553(a) in determining Petitioner’s sentence, citing United States v. Booker,
543 U.S. 220 (2005). Following the Supreme Court’s decision in Booker, Rule ll(b)(l)(M) was
amended so as to require the court to explain, in light of the now advisory sentencing guidelines,
"the court’s obligation to calculate the applicable sentencing-guideline range and to consider that
range, possible departures under the Sentencing Guidelines, and other sentencing factors under
18 U.S.C. § 3553(a)." Fed. R. Crim. P. ll(b)(l)(M). ln sentencing Wehausen, the Court took
great care in explaining the advisory nature of the guidelines and analyzing the factors relevant to
Wehausen’s punishment. 10/31/2008 Tr. at 361 17-47:23. The Court evaluated, among other
things, Wehausen’s age, criminal history, education, job history, income, mental health,
community involvement his initiation of and involvement in the conspiracy, motive, the duration
of the scheme, and Wehausen’s acceptance of responsibility by pleading guilty. Id. Wehausen
does not allege his sentence was substantively unreasonable, and given the Court’s care in
17
determining Wehausen’s sentence, he has not shown
l
was procedurally deficient.
III. CONCLU ION
The record in this case conclusively establishe
Defense counsel objected to errors in the Presentence
of the report, and did not err in negotiating a lower re
stipulated facts. Moreover, Petitioner failed to show c
\
1
s that Petitioner’s claims are without merit.
Report, informed Petitioner of the contents
»titution amount, or failing to object to
ounsel’s overall performance was
constitutionally deficient or that he was prejudiced by any error. Finally, the Court properly
utilized the sentencing guidelines and § 3553(a) facto
Accordingly, the Court shall DENY Wehausen’s § 22
Order accompanies this Memorandum Opinion.
rs in determining Wehausen’s sentence.
55 Motion in its entirety. An appropriate
(
. jt , _ ,
K.@U»C»\ '
‘oLLEEN KoLLAR-KoTELLY
United States District Judge
18