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United States v. Partyka

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

January 17, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ANDREW PARTYKA, Defendant/Petitioner. CRIMINAL

          PAUL D. BORMAN DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE.

         Petitioner Andrew Partyka brings the present Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. (Docket no. 56.) Petitioner also filed a motion for leave to amend his motion to vacate (docket no. 61), which the undersigned granted in a separate order. Accordingly, the supplemental arguments presented in Petitioner's motion for leave to amend are considered in this Report and Recommendation. Respondent United States of America filed a response to Petitioner's motion to vacate (docket no. 70), and Petitioner filed a reply (docket no. 71). The motion to vacate was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket no. 74.) Because the record in this case conclusively shows that Petitioner is not entitled to relief under 28 U.S.C. § 2255, an evidentiary hearing is not required to resolve this action. 28 U.S.C. § 2255(b).

         I. RECOMMENDATION

         For the reasons stated herein, it is recommended that Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 be DENIED.

         II. REPORT

         A. Background

         On August 13, 2013, Petitioner Andrew Partyka pleaded guilty to Mail Fraud in violation of 18 U.S.C. § 1341, causing a loss in excess of $400, 000 and involving financial transactions that were designed to promote or conceal the unlawful activity in violation of 18 U.S.C. § 1956. (Docket no. 27.) The plea was later amended to correct a typographical error, with the parties stipulating that Petitioner “conducted financial transactions with the proceeds of his mail fraud scheme that were designed to promote or to conceal his unlawful activity, in violation of 18 U.S.C. § 1957, ” as opposed to § 1956. (Docket no. 34.) The parties agreed that the violation of § 1957 “adds 1 level to [Petitioner's] sentencing guidelines.” (Id.) In entering his guilty plea, Petitioner acknowledged that he and his attorney reviewed the charges contained in the first superseding information, and that he was “satisfied with [his attorney's] advice and service.” (Docket no. 49, pp. 5, 9.) Petitioner acknowledged that his sentencing guideline range was “37 to 46 months incarceration, ” and that he did not have any “side deals” with his attorney that would contradict the Court's statements. (Id. at 13-15.) In addition, Petitioner admitted to relevant conduct involving money laundering, which “add[ed] one point to his guidelines.” (Id.)

         Prior to sentencing, Petitioner's attorney, Mr. Steven Fishman filed a motion to withdraw as counsel. (Docket no. 35.) In this motion, Mr. Fishman asserted that he exchanged numerous emails with Petitioner “concerning the contents of the pre-sentence report, particularly referencing both the loss amount and the list of alleged victims.” (Id.) Mr. Fishman communicated to Petitioner that “the government feels that both the loss amount and the list of victims are correct, ” but that “his sentencing memorandum would set forth Mr. Partyka's position with respect to both issues.” (Id.) Mr. Fishman further stated that Petitioner “instruct[ed] him not to prepare a sentencing memorandum and, instead, to file a motion to withdraw as his counsel.” (Id.) Accordingly, Petitioner filed a sentencing memorandum on his own behalf. (Docket no. 38.)

         During the sentencing hearing on January 24, 2014, the Court advised Petitioner regarding “the difficulties of representing [him]self, ” but ultimately determined that Petitioner had “knowingly and voluntarily waived the right to counsel” and granted Mr. Fishman's motion to withdraw. (Docket no. 50, p. 6.)

         During the hearing, the Court observed that Petitioner challenged “the [sentencing] guideline range as contained in the presentence report.” (Id. at 13.) Specifically, the “loss amount” in the presentence report was “between $400, 000 and a million dollars, ” but Petitioner “believe[d] that the amount should be between [$]200[, 000] and $400, 000 which would give [Petitioner] a two-level reduction under the base offense level.” (Id. at 13-14.) The Court agreed with Petitioner, concluding that “we're in the range of [$]200, 000 to $400, 000 loss which then creates a[n] advisory guideline range of 30 to 37 months.” (Id. at 15.) Even with the Court accepting a loss amount below $400, 000, Petitioner expressed a desire to dispute “further inaccuracies” with the government's proposed loss amount. (Id. at 18.) However, the Court proposed that those additional reductions be addressed at “a restitution hearing in a couple weeks.” (Id. at 19.) Petitioner understood that his additional reductions “don't change the guidelines, ” and agreed to reserve those arguments for the restitution hearing. (Id.) Upon conclusion of the hearing, the Court sentenced Petitioner to a 36-month term of incarceration and three years of supervised release. (Id. at 50.)

         On January 26, 2015, Petitioner filed his Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, claiming that he is entitled to relief because his attorney rendered ineffective assistance with regard to: (1) the loss amount contained in the Rule 11 Plea Agreement, and (2) the money-laundering enhancement. (Docket no. 56.) Petitioner argues that this allegedly ineffective assistance renders his guilty plea “unknowing and involuntary” and requests the Court to vacate his sentence. (Id.) Respondent asserts that Petitioner fails to establish that his attorney was ineffective, or that his sentence would have been different absent the alleged errors. (Docket no. 70.)

         B. Standard of Review

         A petitioner who files a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 must demonstrate that there was an error of constitutional magnitude, the sentence was imposed outside the statutory limits, or there was an error of fact or law so fundamental as to render the entire proceeding invalid. Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001) (citation omitted). To prevail on a motion to vacate, set aside, or correct sentence alleging constitutional error, the petitioner ...


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