United States District Court, S.D. New York
Decided April 19, 2013.
PREET BHARARA, ESQ., United States Attorney for the Southern District of New York, By: Brian A, Jacobs, Assistant United States Attorney, New York, New York.
SHAHEID BILAL, Defendant, Pro se, Fairburn, Georgia.
DENNY CHIN, United States Circuit Judge.
On March 14, 2011, defendant Shaheid Bilal was convicted, pursuant to a guilty plea, of conspiracy to commit bank and wire fraud in violation of 18 U.S.C. § 134 9. On August 31, 2011, I sentenced him principally to 37 months' imprisonment and imposed restitution, jointly and severally with his co-defendants, in the amount of $461,114. Proceeding pro se, Bilal now moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the basis of (1) an alleged miscalculation in his criminal history category, (2) a challenge to the restitution order, and (3) ineffective assistance of counsel. For the reasons described below, his motion is denied.
A. The Facts
Between 2005 and 2007, Bilal participated in an organized mortgage fraud scheme. (PSR ¶ ¶ 2-6). Together with
two co-conspirators, he helped prepare fraudulent mortgage loan applications on behalf of various straw purchasers recruited for the scheme. (PSR ¶ ¶ 19-20, 24). The applications misrepresented the personal and financial information of the straw purchasers, and falsely indicated that they intended to use the properties as their primary residences. (PSR ¶ ¶ 20, 21). The loans were disbursed by the banks to certain entities for the benefit of Bilal and his co-conspirators. (PSR ¶ 22). In the aggregate, the scheme secured loans in excess of $3 million. (PSR ¶ 17; see also Ind't ¶ 24).
On February 19, 2010, Bilal was indicted on one count of conspiracy to commit bank and wire fraud, and four counts of wire fraud, with respect to four specific properties. (Ind't 1-15).
B. Prior Proceedings
1. Plea Agreement & Allocution
On March 14, 2011, Bilal signed a plea agreement with respect to a single count of conspiring to commit bank and wire fraud in connection with the mortgage fraud scheme. (Plea 1-7). The parties stipulated that the loss amount attributable to Bilal's conduct was greater than $1 million but less than $2.5 million. (Id. at 2). They stipulated to an offense level of 20 and a Criminal History Category of III, resulting in a Guidelines range of 41-51 months' imprisonment (the " Stipulated Guidelines Range" ). (Id. at 3). Moreover, the plea agreement included a waiver of the right to appeal his conviction, which, in relevant part, stated that Bilal:
will not file a direct appeal [,] nor bring a collateral challenge, including but not limited to an application under Title 28, United States Code, Section 2255 [,] ... of any sentence within or below the Stipulated Guidelines Range. . . . The defendant also agrees not to appeal any restitution amount that is less than or equal to the loss amount ($1,000,000 to $2,500,000) stipulated to in paragraph (a)(3) above.
(Id. at 5).
On March 14, 2011, Bilal appeared before me and pled guilty to the single count. (Plea Tr. 20:1-18). During the hearing, Bilal indicated that he had fully discussed the case, the indictment, the Guidelines, and the plea agreement with his attorney. (Id. at 4:15-18; 7:3-9; 10:14-19; 12:20-13:5). At one point, his attorney interceded when she perceived that Bilal had misunderstood a question I had posed. (Id. at 15:19-16:21). He also affirmed that he was satisfied with the representation he had received. (Id. at 4:19-21).
During the allocution, Bilal reiterated that he was waiving his right to appeal:
THE COURT: In your plea agreement you waived your right to appeal or otherwise challenge any sentence within or below the stipulated guidelines range of 41 to 51 months. Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: What that means is, if I sentence you to 51 months in prison or anything less, you would have no right to appeal or to otherwise try to ...