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UNITED STATES v. AHERN

September 7, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDRE W. AHERN, Defendant.


Shadur


The opinion of the court was delivered by: MILTON I. SHADUR

Andre Ahern ("Ahern") has filed a self-prepared motion under 28 U.S.C. § 2255 ("Section 2255") to vacate, set aside or correct the sentence imposed on him by this Court on March 23, 1992 (a sentence that has once before been reduced pursuant to the former version of Fed. R. Crim. P. ("Rule") 35(b)). Based on its examination of Ahern's motion together with all the relevant files and records relating to the matter, this Court orders the summary dismissal of the motion under Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts ("Section 2255 Rules").

 Ahern's offenses of conviction were sophisticated massive-scale frauds--as his presentence investigation report ("PSI") reflected, the FBI Special Agent in charge of the investigation characterized him as "a schemer" and "manipulative," and the facts that Ahern himself admitted in his plea agreement and in his oral guilty plea are amply corroborative of those characterizations. Before this Court sentenced him, Ahern had gone to trial and was convicted by a jury on all six counts of a different fraud indictment in the United States District Court for the Southern District of Illinois. This Court's custodial sentence was imposed concurrently with, rather than consecutively to, the 18-month sentence that had been pronounced by Honorable William Stiehl on those separate and lesser fraud charges. *fn1"

 Before this Court Ahern was represented by counsel who in other cases before this Court (involving both trials and guilty pleas) has demonstrated himself to be a skilled and knowledgeable criminal practitioner. *fn2" Before Ahern pleaded guilty, he and his counsel had entered into the attached plea agreement (the "Agreement"). In addition to the extended description of Ahern's fraud scheme underpinning his guilty plea to two of the six counts facing him, the Agreement reflected the following:

 
1. Agreement P 14 set out the government's recommendation of a sentence of three years' incarceration, although the government did not oppose that sentence being made concurrent with the one earlier imposed by Judge Stiehl. Ahern acknowledged not only that the decision as to concurrent or consecutive sentences was solely for this Court to make (id.) but also that he could be subject to as much as ten years in prison (Agreement PP 6 and 17)--it should be noted that this was a pre-Sentencing Guidelines case, so that the maximum discretion was vested in this Court in that respect.
 
2. Ahern and his counsel agreed with the government that the amount of restitution that Ahern could be ordered to pay to the three companies that were the principal victims of the fraud, if able, was $ 1.466 million.

 This Court's original sentence was for Ahern to spend 36 months in the custody of the Attorney General (on the already-mentioned concurrent basis with Judge Stiehl's sentence), to be followed by five years' probation. In addition this Court determined that the appropriate restitution amount was the $ 1.466 million figure, less any previously-made payments.

 Within 120 days after his sentencing Ahern filed a lengthy and timely pro se motion and supporting memorandum under the now-superseded version of Rule 35 (which was still applicable to his pre-Guidelines case), in which he sought modification of both his custodial sentence and the restitution requirement. Through some procedural oversight, the final motion papers were not brought to this Court's attention for some months. But then counsel (a Phoenix, Arizona lawyer, not the lawyer who had initially represented Ahern before this Court) appeared on Ahern's behalf and tendered a supplemental memorandum and other documents in support of the Rule 35 motion. Within a week thereafter (on March 30, 1993) this Court reduced Ahern's custodial sentence to 27 months and reconfirmed all other aspects of the sentence (which thus left intact the post-custodial probationary sentence and the provision as to restitution).

 Ahern's current Motion P 9 asserts two grounds for relief, quoted here verbatim:

 
Ground 1: Defendant was denied his Sixth Amendment right to effective assistance of counsel, during trial and sentencing proceedings; and, during post-conviction proceedings.
 
Ground 2: Defendant's sentence was imposed in violation of law where his order of restitution is in violation of congressional directive and legislative intent.

 Neither of those grounds survives the threshold scrutiny called for by Section 2255 Rule 4(b).

 As to the first ground, the challenge to effectiveness of Ahern's original counsel in connection with the sentencing proceeding clearly fails. Quite apart from the question of credibility of Ahern's attack on the competence of that original counsel, Strickland requires that any defendant making such a claim must demonstrate (1) that his representation at sentencing fell below an objective standard of reasonableness ("outside the wide range of professionally competent assistance," 466 U.S. at 690) and (2) that a reasonable probability exists that but for the attorney's unprofessional representation the result of the proceeding would have been different ( id. at 694). But a court need not analyze both prongs of that test, for a defendant's failure to satisfy either prong is fatal to his claim ( id. at 697). Indeed, Strickland, id. teaches:

 
If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. *fn3"

 In this instance the original 36-month sentence (and a fortiori the later-reduced 27-month sentence) would unquestionably have been invulnerable to attack on appeal. Nothing suggests that such a sentence fell outside the wide-ranging scope of discretion that was afforded to sentencing courts in the pre-Guidelines era. And as for any potential challenge to the restitution portion of the sentence, perhaps the best answer as to why Ahern's attack would have been doomed to failure in all events is afforded by the two-week-old decision from our Court of Appeals in United States v. Ahmad, 2 F.3d 245, 1993 U.S. App. LEXIS 21587, No. 92-3909, (7th Cir. Aug. 24). At the time of sentencing this Court had reviewed and was thoroughly familiar with the PSI's details about Ahern's college education, his extensive skills and business experience and his "substantial human capital" (id. at *4), *fn4" and it imposed the obligation for full restitution in accordance with what Ahmad, id. at *6 described as "the norm." If anything Ahmad teaches that if there were any error by this Court, it was one that ran in Ahern's favor, by this Court's not having imposed a fine in addition to ordering restitution. *fn5"

 In sum, then, Ahern has not satisfied and could not satisfy the second branch of the Strickland inquiry. And that makes it wholly unnecessary to deal with the first branch at all, quite apart from the already-mentioned fact that it appears dubious on its face.

 Ahern also levels a bogus attack on this Court's Rule 35 ruling, explaining his failure to appeal as attributable to the fact that "the 'jailhouse lawyer' who assisted defendant with his Rule 35 Motion . . . failed to adequately prosecute his motion, and, neglected to inform him of his right to appeal and timely assist him with the appeal." Quite apart from the doubtful premise that any constitutional right to counsel extends to such a post-trial proceeding to begin with, it is of course bizarre for Ahern to claim the ineffectiveness of a nonlawyer as a deprivation of Ahern's constitutional rights--that route would allow a defendant to choose an incompetent nonlawyer to assist him or her, then to bootstrap that incompetence into a constitutional violation. Moreover, Ahern is strangely silent about the fact that he had an honest-to-goodness lawyer representing him before this Court acted on the Rule 35 motion--and that the lawyer participated both by filing a written memorandum and via oral argument. In short, Ahern's challenge to this Court's Rule 35 determination on constitutional grounds is simply frivolous. *fn6"

 As to Ahern's second ground for relief on his current motion, what this Court has already said about Ahmad spells finis to that argument. In fact the restitution provision here was in direct furtherance of the law. Ahmad at *3, in describing the law applicable to post-Guidelines offenses, says:

 And the Court of Appeals' referenced language in 18 U.S.C. § 3553(c) is identical to the language in old 18 U.S.C. § 3579(a)(2) applicable to pre-Guidelines offenses (the two provisions set out the same express obligation for the court to state why it did not order full restitution), while the Court's referenced language in 18 U.S.C. § 3664(d) is identical to that in old 18 U.S.C. § 3580(d) for pre-Guidelines offenses (both statutes impose the same burden on defendant to negate financial capacity to make restitution). What is crystal clear under those circumstances is that it cannot be said "that the sentence was imposed in violation of the Constitution or laws of the United States," as is required for relief under Section 2255.

 In summary, "it plainly appears from the face of the motion and . . . the prior proceedings in the case that the movant is not entitled to relief in the district court" (Section 2255 Rule 4(b)). Accordingly it is ordered that the motion be dismissed summarily, and Ahern is being notified of this dismissal.

 Milton I. Shadur

 Senior United States District Judge

 Date: September 7, ...


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