Fleifel v. United States

• Decision Date: 18 June 2021
• Docket Number: 3:18-CV-2289-D-BH,3:12-CR-318-D(3)
• Parties: FABIAN C. FLEIFEL, ID # 57575-018, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of Texas

FABIAN C. FLEIFEL, ID # 57575-018, Movant, v. UNITED STATES OF AMERICA, Respondent.

Nos. 3:18-CV-2289-D-BH, 3:12-CR-318-D(3)

United States District Court, N.D. Texas, Dallas Division

June 18, 2021

FINDINGS, CONCLUSIONS, AND RECOMMENDATION REFERRED TO U.S. MAGISTRATE JUDGE ^[1]

IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

Before the Court are the movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Amended received on October 25, 2018 (doc. 10), and Motion to Amend 28:USC 2255 Motion to Vacate Sentence and Conviction, received on June 1, 2021 (doc. 26). Based on the relevant filings and applicable law, the motion to amend is GRANTED, and the motion to vacate should be DENIED with prejudice.

I. BACKGROUND

Fabian C. Fleifel (Movant) challenges his federal conviction and sentence in Cause No. 3:12-CR-318-D(3). The respondent is the United States of America (Government).

A. Conviction and Sentencing

On October 3, 2012, Movant and several co-defendants were charged by indictment with conspiracy to commit mail fraud, wire fraud, and bank fraud in violation of 18 U.S.C. § 1349 (18 U.S.C. §§ 1341, 1343, and 1344) (Count One); mail fraud, telemarketing, and aiding and abetting in violation of 18 U.S.C. §§ 1341, 2326, and 2 (Counts Two through Twenty); and wire fraud, telemarketing, and aiding and abetting in violation of 18 U.S.C. §§ 1343, 2326, and 2 (Counts Twenty-One through Twenty-Six). (See doc. 1.)^[2] After a nine-day jury trial in July 2015, he was found guilty on all counts of the indictment. (See doc. 487.)

On October 2, 2015, the United States Probation Office (USPO) prepared a Presentence Investigation Report (PSR) in which it applied the 2014 United States Sentencing Guidelines Manual. (See doc. 522-1 at ¶ 48.) The PSR grouped all 26 counts together under U.S.S.G. § 2X1.1 to determine the base offense level. (See Id. at ¶ 51.) Based on the statutory maximum term of imprisonment for Movant's substantive offenses of mail fraud, wire fraud, and bank fraud, his base offense level started at 7, under U.S.S.G. § 2B1.1(a)(1). (See Id. at ¶ 52.) The PSR calculated the reasonably foreseeable intended loss at $7, 893, 071.62. (See Id. at ¶¶ 43-44, 52.) Because this amount was more than $7 million but less than $20 million, 20 levels were added under U.S.S.G. § 2B1.1(b)(1)(K). (See Id. at ¶ 52.) Six levels were added because the offense involved 250 or more victims, and two levels were added because the offense involved sophisticated means, resulting in a base offense level of 35. (See id.) Four levels were added based on Movant's role as an organizer and leader, for a total offense level of 39. (See Id. at ¶¶ 55, 60.) Based on a criminal history category of I and an offense level of 39, the guideline range of imprisonment was 262-327 months. (See Id. at ¶ 100.)

Movant objected to the PSR on grounds that the 2015 United States Sentencing Guidelines Manual applied, and that the Government “double-counted and accounted for loss amounts that should not be attributed” to him, although he stated that the appropriate loss amount was not below $3, 500, 000 and his guideline level would therefore not be affected. (doc. 582 at 1.) He also objected to the two levels for sophisticated means, and the four-level role enhancement. (See Id. at 1-4.) Movant additionally clarified that there was no “C” for his middle name because he does not have a middle name. (See Id. at 4.) The Government objected to the loss calculation, arguing that some loss amounts were double-counted, and that the total loss amount attributed to Movant should be reduced to $7, 507, 938.46, resulting in an increase of 18 levels instead of 20 levels. (See doc. 602 at 1.) It also objected that only a two-level increase applied under the amended guideline provision for an offense involving 250 or more victims. (See Id. at 2.) Finally, it objected to the exclusion of additional enhancements that would increase Movant's total offense level to 41. (See Id. at 3-10.)

The USPO submitted an addendum to the PSR on February 1, 2016, addressing the parties' objections. (See doc. 606-1.) It agreed that the 2015 United States Sentencing Guidelines Manual applied, accepted the Government's corrections to the loss amount, and accepted Movant's objection to the loss amount and clarification of his name, but it rejected the Government's objections to the exclusion of additional enhancements that would increase Movant's offense level, and Movant's objections to the sophisticated means and role enhancements. (See Id. at 1-4.) The addendum also noted that restitution had been determined since the filing of the original PSR. (See Id. at 5.) Based on the objections and restitution information, the addendum revised the base offense level to 29, and then added four levels based on Movant's role in the offense, resulting in a total offense level of 33. (See Id. at ¶¶ 48, 52, 55, 60.) The resulting guideline range of imprisonment was 135-168 months. (See Id. at ¶ 100.) Movant objected to the addendum, challenging portions of the Government's response and reasserting that the sophisticated means and role enhancements should not apply. (See doc. 613 at 1-6.) He also objected that the restitution amount was incorrect and requested a continuance to investigate the restitution amount after sentencing. (See Id. at 6.)

At the sentencing hearing on February 5, 2016, the Court heard arguments on Movant's request for a continuance and objections to the PSR and its addenda. (See doc. 659 at 4-12.) His request for a continuance was denied, and his objections were overruled. (See Id. at 10, 12.) By amended judgment dated July 11, 2016, Movant was sentenced to 168 months' imprisonment on each count, to run concurrently except as to the mandatory special assessments, which would run consecutively, to be followed by a two-year term of supervised release. (See doc. 766 at 1-4.) He was also ordered to pay an assessment of $2, 600, and restitution in the amount of $1, 346, 513.21, jointly and severally, with his various co-defendants. (See Id. at 6-33.)

On appeal, Movant challenged the sophisticated means and role enhancements. See United States v. Fleifel, 689 Fed.Appx. 817, 817 (5th Cir. 2017). He also challenged the restitution order on grounds that it was based on speculation and conjecture. See Id. at 818. The Fifth Circuit affirmed the amended judgment on May 26, 2017. See Id. Movant did not file a petition for a writ of certiorari with the Supreme Court.

B. Substantive Claims

Movant asserts ten grounds for relief:

(1) Movant was denied constitutionally effective assistance of counsel in violation of the Sixth Amendment because his trial lawyer failed neither to discuss nor present evidence of [Movant's] good character for honesty and lawabidedness [sic];

(2) Movant was denied constitutionally effective assistance of counsel in violation of the Sixth Amendment because his trial lawyer failed to object to the pre-sentence reports [sic] loss calculation for sentencing guideline purposes and demand an evidentiary hearing because the Governments [sic] loss calculation evidence was inaccurate and lacked sufficient indicia of reliability to support its probable accuracy;

(3) The trial court erred in calculating loss for sentencing guideline purposes because the Governments [sic] methodology and proffer at sentencing was inaccurate and lacked sufficient indicia of reliability to support its probable accuracy;

(4) The trial judge erred at sentencing by shifting the burden of proof from the Government onto the Movant to show basis for court to question the sufficient indicia of reliablity [sic] of the Government's loss calculation for sentencing guideline purposes;

(5) Movant was denied constitutionally effective assistance of counsel in violation of the Sixth Amendment because his trial lawyer failed to object to the court's failure to apportion loss between Movant and his co-conspirators and reduce the loss by legitimate business expenses;

(6) Trial court erred in not apportioning loss for sentencing guideline purposes between Movant and his co-conspirators and reduce the loss by legitimate business expenses.

(7) Movant was denied constitutionally effective assistance of counsel in violation of the Sixth Amendment because his trial lawyer failed to object, move to strike, and, request limiting instruction as to the Government's direct examination line and closing argument that the trial judge in addition to the jury would be deciding whether the Government cooperating witnesses were telling the truth, reducing the jury's perception of their exclusive role as the sole arbiters of the credibility of the Government's cooperators.

(8) Movant was denied constitutionally effective assistance of counsel in violation of the Sixth Amendment because his trial lawyer failed to object and move to strike the Government witness Rani Khoury's testimony that Movant was interested in doing something in telemarking “, [sic] cause he sees, I guess, people coming into Rachel”s [sic] as patrons throwing money around, that are making money. So he wanted to also become something in the telemarketing industry”;

(9) Movant was denied constitutionally effective assistance of counsel in violation of the Sixth Amendment because his trial lawyer failed to move in limine, object at trial, and/or request limiting instructions as to evidence that the Movant was a bouncer at a gentlemen's club, because said evidence was evidence of bad character that created the propensity risk that the jury would consider him a bad person and therefore guilty; and

(10) Movant was denied constitutionally effective assistance of counsel in violation of the Sixth Amendment because his trial

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