United States v. Patel

• Docket Number: 3:17-CR-189,3:19-CV-01065
• Decision Date: 24 May 2023
• Parties: UNITED STATES OF AMERICA v. HITESHKUMAR PATEL, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

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UNITED STATES OF AMERICA v. HITESHKUMAR PATEL, Defendant.

Nos. 3:17-CR-189, 3:19-CV-01065

United States District Court, M.D. Pennsylvania

May 24, 2023

MEMORANDUM OPINION

ROBERT D. MARIANI, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

On November 9, 2017, Hiteshkumar Patel pleaded guilty to conspiracy to commit wire fraud in violation of 18 U.S.C § 1349 and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). (Docs. 18, 25.) Presently before the Court is Patel's pro se Motion to Vacate Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 46.) For the reasons stated below, the Court will deny the single claim that remains unresolved in Patel's Motion.

II. STATEMENT OF FACTS

The following abbreviated summary of the factual background in this case derives from the Presentence Investigation Report (“PSR”) (Doc. 39):

Beginning in September 2015 and continuing through May 2016, Hiteshkumar Patel was involved in schemes to defraud individuals through an IRS conspiracy and on-line loan conspiracy. The defendant was an organizer involved with others who falsely represented themselves as IRS agents, or individuals associated with illegitimate on-line loan businesses. Hiteshkumar Patel facilitated the schemes by either using his personal identity, stolen identities, or identities of co-conspirators.

As part of the IRS scheme, Hiteshkumar Patel and his co-conspirators contacted individuals by telephone and falsely claimed to represent IRS authorities. Victims were told that they owed money to the IRS and were threatened with arrest, fines, and imprisonment unless payments were made. Hiteshkumar Patel and his co-conspirators directed victims to send payments by U.S. Mail or via a money transfer service including, Western Union, MoneyGram, [and] RIA (Walmart to Walmart) directly to the defendant or one of his co-conspirators. The defendant and/or his co-conspirators opened U.S. Post Office boxes in the Middle District of Pennsylvania and elsewhere to receive payments from the victims.

. . .

In connection with the on-line loan scheme, Hiteshkumar Patel and his coconspirators created illegitimate hoax websites that spoofed certain legitimate on-line loan websites. Their intent was to mislead Internet users into believing that the illegitimate loan sites were real. Some of the illegitimate loan sites had very similar designs and URLs as the legitimate loan sites.

Some of the victims of the on-line loan fraud scheme were instructed that in order to receive a quick loan, they had to pay various fees associated with the processing of the application, such as fees for expediting the loan and insurance. Some victims of the loan fraud were also told that they had to settle IRS debt before their quick loan applications could be processed.

. . .

As a result of the schemes, at least 629 victims within 18 states have been identified by postal inspectors. The Government estimates that victims have paid in excess of $1,000,000 either directly to Hiteshkumar Patel via the U.S. Mail, MoneyGram, Western Union, and/or RIA, or to one of the numerous “helpers” he recruited off the street to assist him in the frauds. Approximately ten of the “helpers” have been identified and were interviewed by agents.

(PSR ¶¶ 6-13.)

U.S. Postal agents arrested Patel on May 18,2016, and he soon thereafter waived his Miranda rights and provided a statement to police. (Id. ¶ 15.) Patel explained that six “bosses” from a call center in India directed the scheme, and he described the payment structure as it affected him and his “runners.” (Id.)

Patel pleaded guilty to Counts 1 and 20 of the Indictment on November 9,2017. (Plea Hr'g Tr., Doc. 31.) The maximum term of imprisonment was twenty years for Count 1 and two years for Count 20. (PSR ¶ 57.) The term of imprisonment for Count 20 was required to be consecutive to that imposed on Count 1. (Id. ¶ 58.) According to the PSR, “[b]ased on his total offense level of 31 and a criminal history category of III, the guideline imprisonment range [was] 135 to 168 months.” (Id. ¶ 59.)

This Court sentenced Patel on August 9, 2018. (Sent'g Hr'g Tr., Doc. 38.) At the sentencing hearing, the Court read selections from the victim impact statements submitted to the Court to demonstrate the hardships the Defendant caused his victims. (See id. at 21 36.) The Court summarized the victims' statements as follows:

Each and every one of these people lost savings. One in particular lost her savings with no hope of financial recovery. The list goes on. The list goes on. Telephone schemes and online scams such as those this defendant has perpetrated have become a scourge of our society and a trap for the [unwary].That I think is a statement that is beyond serious dispute.

While it's possible to quantify the financial loss that each of these individuals suffered at the hands of the defendant, I believe it's impossible to quantify the emotional and psychological damage that you have inflicted, Mr. Patel, on each and every one of these individuals who not only endured your threats and intimidation but thereafter suffered the humiliation of realizing they had been fleeced by a man without a conscience who did not care how much suffering he inflicted or on whom.

(Id. at 31-32.) Ultimately, the Court varied upwards from the guideline sentence, and explained the reasons for doing so as follows:

So for these reasons in my application of the 3553(a) factors, I find that just punishment in this case requires an upward variance from the guideline sentence. And in addition to the reasons I have just given, I will give you these additional reasons: One, the length of time you perpetrated this fraudulent scheme; the number of persons who suffered from it, at least 629 individuals; the amount of money of which these individuals was defrauded; the emotional and psychological pain and anguish and distress each of these victims no doubt suffered in the manner in which they were treated by you and the manner in which they were threatened and browbeat and lied to and bullied and deceived and the damage each of them suffered warrants a sentence above the guidelines to reflect the extreme seriousness of this offense and to promote respect for the law-specifically to promote respect for the law that abuse of the telephone and abuse of online communication facilities particularly with respect to the unsophisticated, to the elderly and the naive will be dealt with in the most severe fashion in the United States of America.

Lastly, just punishment requires for the damage that you have inflicted a sentence above the guidelines not only for the above reasons but to afford adequate deterrence to criminal conduct by you and by any others who would engage in the predatory activity that you engaged in because you, sir, are a predator without conscience. I find that your conduct was undertaken over a substantial period of time and inflicted harm on hundreds of persons which truly can't be remedied and it was so reprehensible as to be lacking in any basic human decency, and I will further note there are no mitigating factors that I can discern that would cause me to arrive at a different conclusion.

(Id. at 32-33.)

The Court “var[ied] upward by two levels and sentence[d] the defendant to a term of imprisonment of 210 months on count one with the additional two years required under count 20 for a total of 234 months.” (Id. at 33.) The Court also imposed restitution in the amount of $896,112.33 and a special assessment of $100 on each count. (Id. at 34.)

Patel did not file a direct appeal. On August 19,2019, Patel filed the instant Motion pursuant to 28 U.S.C. § 2255 (Doc. 46) and later filed a brief in support of his Motion (Doc. 51).^[1] The Government timely filed a brief in opposition (Doc. 57), and Patel then filed a reply brief (Doc. 70).

III. RESOLUTION OF FIRST CLAIM

Patel's Motion seeks relief on two grounds. The first-that his counsel rendered ineffective assistance by failing to file a Notice of Appeal on his behalf-has already been resolved. On September 19,2022, this Court issued an Order granting Patel's § 2255 Motion only to the extent that his right to appeal his conviction and sentence was reinstated. (Doc. 81.) The Court thereafter entered an amended judgment reflecting the reinstatement of his appeal rights. (Doc. 82.) Patel's second ineffective assistance of counsel claim, attacking his counsel's performance with respect to his guilty plea, was “held in abeyance pending resolution by the United States Court of Appeals for the Third Circuit of such appeal as Patel may file.” (Doc. 81 at 4.)

Patel filed a Notice of Appeal on November 14, 2022. (Doc. 83.) The Government filed a Motion to Dismiss the Appeal on the grounds that (1) Patel's plea agreement included an appeal waiver and (2) Patel filed his Notice of Appeal outside of the deadline prescribed by Federal Rule of Appellate Procedure 4(b)(1)(A). On January 18,2023, the Third Circuit dismissed Patel's appeal pursuant to Federal Rule of Appellate Procedure 42(b). Patel's second ineffective assistance of counsel claim is therefore ripe for disposition.

IV. STANDARD OF REVIEW

a. 28 U.S.C. § 2255

A federal prisoner in custody under the sentence of a federal court may, within one year from when the judgment becomes final, move the sentencing court to “vacate, set aside or correct” a sentence “imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). A federal prisoner may also file a § 2255 motion within one year from “[t]he date on which the right asserted was initially recognized by the Supreme Court, if that right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral...