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United States v. Khan

United States District Court, E.D. Michigan, Southern Division

November 10, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
REHAN KHAN, Defendant. Civ. No. 14-cv-11919

          PRESENT Honorable Gerald E. Rosen United States District Judge

          OPINION AND ORDER (1) DENYING § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE, (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          Gerald E. Rosen, United States District Judge

         At a session of said Court, held in the U.S. Courthouse, Detroit, Michigan on November 10, 2016

         I. INTRODUCTION

         Rehan Khan was indicted, along with 15 co-defendants, on charges of conspiracy to commit health care fraud in violation of 18 U.S.C. § 1349. The First Superseding Indictment also charged Khan with one count of conspiracy to pay and receive kickbacks and two counts of money laundering.

         On June 26, 2012, Khan pleaded guilty, pursuant to a Rule 11 Plea Agreement, to one count of health care fraud conspiracy. Under the Plea Agreement, Defendant agreed that his applicable Guidelines sentencing range was 57-71 months. On May 13, 2013, Khan was sentenced to a term of 60 months' imprisonment, to be followed by two years of supervised release, and ordered to pay $1, 789, 234.74 in restitution. The Court further entered a money judgment of $13, 888, 930.00 against Khan, jointly and severally, and ordered the forfeiture of $113, 479.58 in seized assets. Kahn did not appeal his sentence or conviction.[1]

         On May 13, 2014, Khan filed the instant Motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. As grounds for § 2255 relief, Defendant Khan claims (1) that he received ineffective assistance of counsel during plea negotiations and at sentencing; and (2) that the Court improperly used facts not found by a jury to enhance his sentence, and therefore, under Alleyne v. United States, 133 S.Ct. 2151 (2013), his sentenced must be vacated.

         II. DISCUSSION

          A. DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

         Defendant Khan claims that ineffective assistance of counsel during plea negotiations and sentencing resulted in a longer sentence than the 0-6 months he contends should have been his applicable Guidelines range. Specifically Khan claims that (1) counsel failed to explain that the charge to which he pled guilty in the plea agreement would result in a higher Guidelines range than the offense charged in Count 1 of the First Superseding Indictment; (2) counsel failed to inform him that the Government had not proved all of the elements of the health care fraud conspiracy offense; (3) counsel failed to negotiate a more favorable plea deal; (4) counsel failed to file written objections to the Pre-Sentence Investigation Report; and (5) at sentencing, counsel did not object to the court's calculation of the Guidelines range and failed to comply with 18 U.S.C. § 3553(a) thereby failing to preserve those issues for appeal. For the reasons that follow, the Court finds no merit in any of Defendant's claims of ineffective assistance of counsel.

         The requirements for demonstrating ineffective assistance of counsel were established by the United States Supreme Court in Strickland v. Washington, 406 U.S. 668, 104 S.Ct. 2052 (1984). To establish ineffective assistance of counsel, it must be shown (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. 406 U.S. at 687, 104 S.Ct. at 2064.

         The proper standard for assessing an attorney's performance is that of reasonably effective assistance. Id. Thus, a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not “a reasonably competent attorney” and the advice was not “within the range of competence demanded of attorneys in criminal cases.” Id.

         The Strickland court further directed that judicial scrutiny of counsel's performance must be highly deferential. Id., 406 U.S. at 689, 105 S.Ct. at 2065.

         The court explained the need for deference:

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Id. (Citations omitted).

         In the context of a guilty plea, the Supreme Court has held as follows:

[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based upon ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of attorney competence. . . .
The second, or “prejudice” requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, 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 v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370 (1985).

         The Sixth Circuit applied the foregoing standards in Sullivan v. United States, 11 F.3d 573 (6th Cir. 1993), a § 2255 case where, as in this case, the petitioner, challenged the length of his sentence by arguing ineffective assistance of counsel in connection with his having entered into a Rule 11 plea agreement. The district court denied Sullivan's § 2255 motion and the Sixth Circuit affirmed, explaining:

[P]etitioner's claim fails to meet even the first prong of Strickland. There has been no showing that counsel's performance was not competent. The record reveals that the district court discussed the terms of the plea agreement with petitioner and that he was informed of the possible sentence which he faced. These terms were discussed, in petitioner's presence, in ...

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