be calculated, the final result was correct. Accordingly, petitioner's counsel was not constitutionally ineffective for failing to object to the PSI.
Without the benefit of any authority, Schneider argues that because he made restitution, the presentence report should have reflected a zero loss to the government. Although the Second Circuit has not directly ruled on the issue, it has stated that there is no reason to treat cases involving fraud and deceit differently from cases involving embezzlement and theft. See United States v. Brach, 942 F.2d 141, 143 (2d Cir. 1991). See also United States v. Krause, 786 F. Supp. 1151, 1156 (E.D.N.Y. 1992) (appropriate to sentence fraud-based crimes under Guideline commentaries for theft provisions). Moreover, in cases of embezzlement or theft, the Second Circuit has interpreted the definition of loss literally and has affirmed sentencing adjustments "based on the value of what was taken, not on the ultimate harm suffered by the victim." Brach, 942 F.2d at 143. Thus, despite the fact that Schneider claims that he made complete restitution,
a claim that this Court cannot substantiate, he is still not entitled to sentencing reduction. More importantly, his attorney can in no way be considered ineffective for failing to raise this objection to the presentence report.
Petitioner also claims that this Court engaged in impermissible double counting when it enhanced his sentence for being a tax preparer, being an organizer and for using sophisticated means. "Double counting is legitimate where a single act is relevant to two [or more] dimensions of the Guidelines . . . ." United States v. Campbell, 967 F.2d 20, 25 (2d Cir. 1992). Here, none of the enhancements are necessarily duplicative of the others. For example, a tax preparer can defraud the government using a simple scheme or can engage in an elaborate and sophisticated fraudulent tax evasion scheme. Thus, it is not impermissible double counting to enhance a defendant's sentence for being both a tax preparer and for using sophisticated means. See Guidelines Manual § 2T1.3, comment. 2. Moreover, one can be an organizer of criminal activity and not use sophisticated means. An individual can organize a gang of thugs to engage in simple street crime allowing for an enhancement for being an organizer but not for using sophisticated means. Conversely, a lone individual can perpetrate a sophisticated crime, thus allowing an enhancement for sophisticated means but not for being an organizer. Accordingly, petitioner's claim that his attorney rendered ineffective assistance of counsel for failing to object to the application of these three enhancements is without merit.
Finally, this Court notes that petitioner's counsel was present and actively participated in his client's initial proffer with the government and was in continuous contact with the government during the entire cooperation period. Counsel negotiated a formal plea agreement for his client and was available and consulted by Schneider at all times before and through sentencing. Additionally, even during and after sentencing, petitioner's counsel attempted to obtain an opportunity for Schneider to cooperate with a view towards reducing his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure, which included communicating with the government on numerous occasions concerning the prosecution's evaluations of Schneider's attempts to continue cooperation. Thus, this Court finds that the representation afforded petitioner easily fell within the wide range of reasonable legal assistance and therefore petitioner's ineffective assistance of counsel claim must fail.
For the above-stated reasons, petitioner's motion to set aside his sentence pursuant to 28 U.S.C. § 2255 is denied in its entirety.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
December 1, 1993