United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, DISTRICT JUDGE.
Spitzer pled guilty to ten counts of mail fraud. During
sentencing, Judge James Zagel found he caused $34 million in
losses and sentenced him to 300 months in
prison. Spitzer has moved under 28 U.S.C. §
2255 to set aside his guilty plea and sentence.
was the principal officer and sole shareholder of Kenzie
Financial Management, a corporation headquartered in the U.S.
Virgin Islands. Through Kenzie, Spitzer controlled twelve
investment funds, known as the Kenzie Funds. Between 2004 and
2010, investors placed over $100 million in the Kenzie Funds.
But the Kenzie Funds were not sound investments. Spitzer
overstated the value of the funds, distributed fraudulent
account statements, and distributed new funds to earlier
investors who wanted their money back. In other words, the
Kenzie Funds were a Ponzi scheme.
the scheme fell apart. Of the approximately $105 million
invested in the Kenzie Funds, $71 million was paid back out
to investors. On the eve of trial, Spitzer pled guilty to ten
counts of mail fraud under 18 U.S.C. § 1341. In
Spitzer's pre-sentence report, the government recommended
finding approximately $34 million in losses, the difference
between the $105 million that investors placed in the Kenzie
Funds and the $71 million that the Funds paid back to
investors. Spitzer alleges that he gave his attorney a flash
drive containing information that would show that the
government's loss calculations were rife with
inaccuracies, but his attorney never reviewed it or used it
in his arguments regarding losses at sentencing. Judge Zagel
ultimately adopted the government's loss calculation.
Zagel sentenced Spitzer to two consecutive 150-month
sentences and imposed approximately $34 million in
restitution. Spitzer appealed his sentence. Before the
Seventh Circuit, he argued that Judge Zagel failed to
adequately explain why he agreed with the pre-sentence
report. The Seventh Circuit affirmed the sentence, concluding
that no such explanation was needed. United States v.
Spitzer, 812 F.3d 613, 614 (7th Cir. 2016).
April 2017, Spitzer's attorney filed the current motion
under 28 U.S.C. § 2255. Several months later, the
attorney filed a memorandum in support of the motion. But
Spitzer did not submit an affidavit in support of his claims,
so there was no sworn evidence by which the Court could
evaluate Spitzer's claims. After reviewing the briefs,
the Court invited Spitzer to submit an affidavit or other
evidence to support his claims. See Kafo v. United
States, 467 F.3d 1063, 1071 (7th Cir. 2006). Spitzer
then filed an affidavit in which he stated that his attorney
told him there were "meritorious challenges" to the
government's proposed loss calculations and that he
provided the attorney with a flash drive containing documents
that would support this challenge. D.E. 28 ¶¶ 2-3
(Spitzer Aff.). Spitzer also stated that the attorney never
reviewed these materials and failed to make a meritorious
challenge to the loss calculation. Id. ¶¶
4-5. Last, Spitzer stated that he pled guilty because his
attorney advised him there would be viable challenges to the
loss calculation. Id. ¶¶ 6-7.
section 2255, a federal prisoner may move to vacate, set
aside, or correct a sentence that was imposed in violation of
the Constitution or laws of the United States or that is
otherwise subject to collateral attack. 28 U.S.C. §
2255(a). Spitzer's section 2255 motion rests on three
Spitzer contends his plea was not voluntary, knowing, and
intelligent, because his attorney did not provide him access
to certain discovery materials. Mot. to Vacate at 5. A guilty
plea is valid as long as it is entered "voluntarily,
knowingly, and intelligently, " with knowledge of
"the relevant circumstances and likely
consequences." United States v. Davey, 550 F.3d
653, 656 (7th Cir. 2008) (quoting Bradshaw v.
Stumpf, 545 U.S. 175, 182-83 (2005)). Spitzer contends
that he pled guilty because he did not have time to prepare a
defense with these materials.
government argues that this claim should be dismissed
outright as an undeveloped argument. United States v.
Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991).
Spitzer's argument is undeveloped, but even if were not
forfeited, the Court would deny it on the merits. Beyond a
general allusion to discovery materials-which Spitzer does
not further describe-he does not explain how the absence of
these materials impaired his ability to "cho[ose] among
the alternative courses of action" available to him
before pleading. Davey, 550 F.3d at 656 (citation
omitted). Without any description of the discovery materials
that he considers significant or how they relate to his
decision to plead guilty, Spitzer cannot prevail on this
argument. The Court therefore overrules Spitzer's first
Spitzer argues his attorney provided ineffective assistance
of counsel during sentencing. Specifically, Spitzer contends
that his attorney contested the government's loss
calculation without reviewing materials that Spitzer had
provided to him on a flash drive, which Spitzer says
established a smaller amount of loss. Mot. to Vacate at 6.
The government tries to characterize this as a challenge to
the sentencing calculation itself. By failing to raise this
issue on direct appeal, the government contends, Spitzer
procedurally defaulted any challenge to the loss calculation.
A claim not raised on direct appeal generally cannot be later
raised on collateral review, unless the defendant shows cause
for his failure to raise the issue and prejudice resulting
from the default. Massaro v. United States, 538 U.S.
500, 504 (2003). The Court disagrees with the
government's characterization. Spitzer challenges the
effectiveness of his attorney's representation during
sentencing, not the sentencing calculation itself. The
government's procedural default argument therefore fails,
as "an ineffective-assistance-of-counsel claim may be
brought in a collateral proceeding under § 2255, whether
or not the petitioner could have raised the claim on direct
prevail on an ineffective assistance of counsel claim,
Spitzer must show that (1) his attorney's performance was
objectively deficient and (2) he experienced prejudice from
his attorney's error. Strickland v. Washington,
466 U.S. 668, 687-88 (1984). When a court finds that a
petitioner has not met one of the Strickland
elements, it need not address the other element. Id.
at 697. To establish prejudice in connection with sentencing,
Spitzer must show a "reasonable probability" that
the results of the sentencing hearing would have been
different but for counsel's deficient performance.
Fuller v. United States, 398 F.3d 644, 650 (7th Cir.
has failed to show the requisite prejudice. Spitzer contends
that he provided his attorney with "thousands of
documents that would illustrate how the government's loss
calculations were in error." D.E. 28 ¶ 3 (Spitzer
Aff.). But Spitzer's bare assertion that the documents
would have changed the outcome of sentencing is not enough;
he has to tell the Court what these ...