Schubert v. United States

1

JASON MICHAEL SCHUBERT, Petitioner v. UNITED STATES OF AMERICA, Respondent.

Nos. A-20-CR-292-1-RP, A-23-CV-1019-RP-ML

United States District Court, W.D. Texas, Austin Division

May 10, 2024

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

MARK LANE UNITED STATES MAGISTRATE JUDGE

TO THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE:

Before the court is Petitioner Jason Michael Schubert's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 56), Schubert's Motion for Discovery (Dkt. 71), and all related briefing. After reviewing the pleadings and the relevant case law, the undersigned submits the following Report and Recommendation to the District Court.

I. Background

A. Factual Background

Jason Michael Schubert pleaded guilty to: Count One - Wire Fraud in violation of 18 U.S.C. § 1343; and Count Two - Engaging in Monetary Transaction in Criminally Derived Property in violation of 18 U.S.C. § 1957. Dkt. 5 (Plea Agmt.), Dkt 12. From at least as early as 2012 and continuing until at least June 2018, Schubert “devised and executed a scheme to obtaining [sic] money from investors to purchase operate, and/or invest in hotels, by means of false and fraudulent pretenses, representations, and promises.” Dkt. 5 (Plea Agmt.) ¶ 4c. He

misrepresented that investors would receive returns and profit distributions from hotel investments, and failed to create and maintain reasonable business records relating to the investments. Rather than using the money for the hotel investment activities that he represented to investors, Defendant misappropriated the money for himself by controlling relevant bank accounts and paying himself significant “management fees” and other fees, even though Defendant had no hotel management experience. Defendant also diluted the interests of investors, without their knowledge and consent, by seeking loans from outside lenders secured by an ownership interest in hotel properties.

Id. ¶ 4c. Through Schubert's fraudulent scheme, he “caused losses to investors of approximately $2,000,000.” Id. ¶ 4p.

In his Plea Agreement, Schubert waived his right to trial and his appellate rights. Id. ¶ 6b, c. He also waived his right to challenge his conviction and sentence collaterally, except he did not waive his right to collaterally challenge his sentence based on ineffective assistance of counsel. Id. ¶ 6c. He agreed to the entry of a restitution order for the full amount of the losses. Id. ¶ 6d.

Schubert's PSR stated that the investigation concluded that the total loss for Schubert's victims was at least $5,052,366.92. Dkt. 22 (PSR) at ¶ 45. Because the losses were greater than $3.5 million, but less than $9.5 million, his base offense level was increased by 18 levels. Id. ¶ 54. The PSR also determined a 2-level increase because the offense involved sophisticated laundering under U.S.S.G. § 2S1.1(b)(3) and another 2-level enhancement under U.S.S.G. § 2b1.1(b)(10). Id. ¶¶ 56, 54. All told, Schubert's total offense level was 31 and his criminal history was category I, yielding a Guideline imprisonment range of 108 motions to 135 months. Id. ¶ 108.

The District Court accepted his guilty plea on January 8, 2021, Dkt. 16, and sentenced him on May 18, 2022, Dkt. 40. Before sentencing, Schubert's trial counsel filed a Memorandum for Downward Variance, arguing for a sentence of probation rather than imprisonment, which the court reviewed before the sentencing hearing. Dkt. 36; Dkt. 49 (Sent. Tr.) at 1:18-20. Schubert did not object to the PSR. Sent. Tr. at 3:19-22. The court adopted the PSR without change but varied from the Guidelines range under 18 U.S.C. § 3553(a) and sentenced Schubert to 70 months imprisonment for both counts, to run concurrently, 3 years of supervised release, and restitution of $5,052,366.92. Dkt. 40; Dkt. 41.

Schubert filed a direct appeal, but the Fifth Circuit dismissed it on his own motion. Dkt. 54.

Schubert, through new counsel, now collaterally attacks his sentence. Dkt. 56. Couching all of his claims as ineffective assistance of counsel claims, Schubert asserts the amount of loss- and its attendant increase in offense level-is unsupported; the 2-level upward adjustment for sophisticated laundering under U.S.S.G. § 2S1.1(b)(3) was erroneous as a matter of law; the restitution amount was incorrectly calculated; and the upward adjustment for sophisticated means under U.S.S.G. § 2B1.1(b)(10) was erroneous. Id. The Government agrees that the adjustment under U.S.S.G. § 2S1.1(b)(3) was erroneous as a matter of law, Dkt. 73 at 14, but opposes all relief, Dkt. 73.

Schubert moved for discovery from the Probation Officer who prepared the PSR, which the court previously denied. Dkt. 70. Schubert also moved for discovery from his trial counsel, asserting that trial counsel may have withheld parts of his file from his new counsel. Dkt. 71.

II. Issues Presented

As stated by counsel, Schubert presents the following issues:

Claim For Relief No. 1: Schubert was denied his right to effective assistance of counsel in connection with his sentencing, as guaranteed by the sixth amendment to the constitution of the United States, by virtue of his counsel's unprofessional, deficient and prejudicial acts and omissions that collectively reflect that the total loss amount (and corresponding upward adjustment of plus 18 under USSG § 2b1.1(b)(1)(j) was erroneously calculated given application note 3(E) to USSG § 2b1.1(b)(1): both the loss amount and the manner in which it was calculated should have been objected to.

Claim For Relief No. 2: Schubert was denied his right to effective assistance of counsel in connection with his sentencing, as guaranteed by the sixth amendment to the constitution of the United States, by virtue of his counsel's unprofessional, deficient and prejudicial acts and omissions that reflect that the upward adjustment for sophisticated laundering under USSG § 2S1.1(b)(3) was erroneous as a matter of law: it should have been objected to.

Claim For Relief No. 3: Schubert was denied his right to effective assistance of counsel in connection with his sentencing, as guaranteed by the sixth amendment to the constitution of the United States, by virtue of his counsels' unprofessional, deficient and prejudicial acts and omissions that collectively reflect that the total restitution amount was erroneously calculated: it should have been objected to and a restitution hearing requested.

Claim For Relief No. 4: Schubert was denied his right to effective assistance of counsel in connection with his sentencing, as guaranteed by the sixth amendment to the constitution of the United States, by virtue of his counsel's unprofessional, deficient and prejudicial acts and omissions that reflect that the upward adjustment for sophisticated means under USSG § 2b1.1(b)(10) was erroneous: it should have been objected to.

III. Standard of Review

Under section 2255, there are generally four grounds upon which a defendant may move to vacate, set aside or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the district court was without jurisdiction to impose the sentence; (3) the sentence imposed was in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. The nature of a collateral challenge under section 2255 is extremely limited: “A defendant can challenge his conviction after it is presumed final only on issues of constitutional or jurisdictional magnitude . . . and may not raise an issue for the first time on collateral review without showing both ‘cause' for his procedural default, and ‘actual prejudice' resulting from the error.” United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152, 168 (1982)). If the error is not of constitutional or jurisdictional magnitude, the movant must show that the error could not have been raised on direct appeal and would, if condoned, “result in a complete miscarriage of justice.” United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994). However, a defendant's ineffective assistance of counsel claim does create a constitutional issue and is cognizable pursuant to Section 2255. United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1996).

IV. Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. U.S. CONST. amend VI; Cuyler v Sullivan, 446 U.S. 335, 344 (1980). To prevail on an ineffective assistance of counsel claim, a movant must satisfy the two-part test enunciated in Strickland v. Washington. 466 U.S. 668, 687 (1984). First, he must demonstrate counsel's performance fell below an objective standard of reasonableness. Id. Under this standard, counsel must “research relevant facts and law, or make an informed decision that certain avenues will not be fruitful.” United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003). The effectiveness of an attorney's representation must be gauged “on the facts of the particular case, viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690. A court will not find ineffective assistance merely because it disagrees with counsel's trial strategy. Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999). Whether counsel's performance was deficient is determined by examining “the law as it existed” at the time of the representation. See id. “[C]ounsel is not ineffective for failing to raise a claim that courts in the controlling jurisdiction have repeatedly rejected . . . or even for not rais[ing] every nonfrivolous ground that might be pressed on appeal.” United States v....