United States v. Kamor

1

UNITED STATES OF AMERICA v. ADAM KAMOR, Defendant

CRIMINAL No. 3:19-54

United States District Court, M.D. Pennsylvania

February 25, 2022

MEMORANDUM

MALACHY E. MANNION UNITED STATES DISTRICT JUDGE

Before the court is the pro se motion to vacate conviction and correct sentence pursuant to 28 U.S.C §2255 filed by the defendant Adam Kamor based upon claims of due process violations, ineffective assistance of counsel, and a breach of his plea agreement. (Doc. 59). For the reasons set forth below, the motion will be DENIED IN ITS ENTIRETY without the need for an evidentiary hearing.

I. BACKGROUND

By way of relevant background, on February 15, 2019, Kamor plead guilty, pursuant to a plea agreement, (Doc. 3), to one count of money laundering, in violation of 18 U.S.C. §1956(a)(1), and one count of income tax evasion, in violation of 26 U.S.C. §7201.

The government, (Doc. 65 at 3), states that, the parties entered several stipulated recommendations in the plea agreement with respect to the sentencing guidelines, “including the loss amounts for both charges, that the offense resulted in a substantial financial hardship to the victim, that the offense involved sophisticated money laundering, and that Kamor used a special skill to facilitate the offense.” (citing Doc. 3 at ¶ 12). Further, “the parties agreed that a sentence within the associated guidelines range would be reasonable, and the United States agreed to recommend the minimum term of imprisonment under the guidelines.” (Id.) (citing Doc. 3 at ¶ 13). (See also Doc. 65-1, guilty plea hearing transcript).^[1]

A Presentence Report (“PSR”) was ordered by the court and prepared by the Probation Office. The Probation Office calculated Kamor's total offense level at 24. (Doc. 16, PSR ¶¶ 13-38). Since Kamor's Criminal History Category was I, his advisory sentencing guideline range was 57 to 71 months of imprisonment and one to three years of supervised release. (Id. at 41, 61-66).

Prior to sentencing, the victim of Kamor's crime submitted an impact statement to the court, through counsel, and under seal. (See Doc. 67, filed under seal). Kamor also attached a copy of the sealed victim impact statement to his §2255 motion.^[2] (Doc. 59 at 21-23). As a backdrop to the statement, the government, (Doc. 43 at 1-2), explains:

The charges arose out of Kamor's business as a certified public accountant in Wilkes-Barre, Pennsylvania. Between 2014 and 2018, Kamor diverted nearly $1.4 million from one of his clients-a nonprofit organization-through a series of shell accounts under Kamor's control. Kamor ultimately lost nearly all of the embezzled funds while gambling at the Mohegan Sun Pocono, with the United States recovering only $32, 443 through account seizures. In advance of Kamor's sentencing, the parties, the Probation Office, and the Court were provided with a sealed victim impact statement. See [Doc. 45]. In that statement, the nonprofit victim expressed its fervent request to remain anonymous, and described the damage that Kamor's actions caused to its ongoing operations. During Kamor's sentencing, Judge Munley referenced the victim impact statement repeatedly.

The statement was provided to the parties on June 21, 2019, prior to the June 24, 2019 sentencing. Also, on June 21, 2019, Kamor filed a sentencing memorandum, under seal, (Doc. 24), in which he requested a variance below his advisory guidelines. Kamor's trial counsel also addressed this issue at the sentencing hearing. (See Doc. 65, Att. 2, sentencing hearing transcript). Kamor's counsel specifically refuted some of the positions taken by the victim in its impact statement. (Id. at 4-5). Kamor, during his allocution, did not address the victim impact statement. (Id. at 7-8). Pursuant to its representation in the plea agreement, the government recommended a 57-month prison sentence, which was the minimum under the guidelines. (Id. at 3-4). The court then conducted a thorough analysis of the sentencing factors under 18 U.S.C. §3553(a), and imposed a sentence of 84 months of imprisonment which was a 13-month upward variance from Kamor's advisory guidelines range. (Id. at 8-13). The court, (Id. at 13), explained why it imposed the upward variance by considering the §3553(a) factors, as well as the victim impact statement, and stated:

The variance is imposed because of the serious impact on the community, for his actions will have long-term effects on our community. It is unlikely that full restitution will be made - be able to made by the defendant... the upward variance is imposed - is imposed to reflect the seriousness of the offense, to act as a deterrent and address the community impact.

Notably, Kamor did not object, when given an opportunity, to the upward variance or to any other aspect of the sentencing proceeding. (Doc. 65-2 a17-18).

In the Statement of Reasons, the court further explained Kamor's sentence, (Doc. 30 at 4), and stated:

[A] sentence of eighty-four (84) months imprisonment was need[ed] to adequately address the sentencing objectives of punishment and deterrence. The sentence imposed satisfies the purposes set forth in 18 U.S.C. §3553(a)-including the necessity of deterrence and just punishment, promotion of respect for the law, protection of the public, avoidance of unwarranted disparities, and assurance of correctional treatment for the defendant and restitution to any victims of the offense

- and reflects full consideration of all factors relevant to the sentencing determination-including the nature and seriousness of the offense, the history and characteristics of the defendant, the kinds of sentencing available, and the advisory range and policies prescribed by the United States Sentencing Commission.

Thus, on June 24, 2019, Kamor was sentenced to 84 months' imprisonment on count one and 60 months' imprisonment on count two, to run concurrently, followed by three years of supervised release. (Doc. 27). Kamor also was ordered to pay restitution of $1, 353, 244.56 to the victim of his crimes, i.e., Corporation #1, and $241, 623 to the IRS.

On July 5, 2020, Kamor appealed his judgment of sentence to the Third Circuit arguing, in part, that the court did not adequately justify the upward variance from the advisory sentencing guidelines which the court imposed. The Third Circuit affirmed Kamor's judgment of sentence. (Docs. 34 & 35). See United States v. Kamor, 811 Fed.Appx. 104, 107 (3d Cir. 2020). (See also Doc. 35-1). Kamor did not file any further appeal.

On April 30, 2021, Kamor filed the present motion to vacate with Exhibits. (Doc. 59). After being granted an extension of time, on June 22, 2021, the government filed a brief in opposition with Exhibits. (Doc. 65). Kamor was also granted an extension, and he filed a reply brief on August 2, 2021. (Doc. 71).

Kamor is presently confined at FCI Schuylkill where he is serving his prison sentence and his projected release date is June 30, 2025.

II. STANDARD

When a district court judge imposes a sentence on a defendant who believes that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is subject to collateral attack, [the defendant] may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. §2255. See United States v. Eakman, 378 F.3d 294, 297-98 (3d Cir. 2004).

The rule states, “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.” See United States v. Bendolph, 409 F.3d 155, 165 n.15 (3d Cir. 2005) (stating district courts have the power to dismiss petitions sua sponte during the Rule 4 stage of habeas proceedings).

A Section 2255 motion “is addressed to the sound discretion of the district court.” United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). A motion under 28 U.S.C. §2255 is the proper procedure for a federal prisoner to raise a collateral attack on his federal sentence for any error that occurred at or prior to sentencing. See In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). In order to prevail on a Section 2255 motion to vacate, set aside, or correct a sentence, the defendant must show “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” United States v. Bates, 2008 WL 80048, at *2 (M.D. Pa. Jan. 7, 2008) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6^th Cir. 2003)). The defendant bears the burden of proof under Section 2255 and must demonstrate his right to relief by a preponderance of the evidence. United States v. Ayers, 938 F.Supp.2d 108, 112 (D. D.C. 2013).

The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel. The United States Supreme Court has found that “the right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)). Counsel is ineffective when “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

Thus under Strickland, to prove that his counsel was deficient at trial or sentencing, the defendant must convince the court of two factors, deficient performance by counsel and prejudice from that deficient performance. “First, the defendant must show...