Kawar v. United States, 2:22-cv-00143

Background

Movant Marwan Kawar pleaded guilty to mail fraud for operating a sham vendor (TAP Industrial Solutions) to defraud his employer, Multi-Wall, from ~2012–2019.
Judge Springmann accepted the plea; Judge Simon later sentenced Kawar to 60 months’ imprisonment and $397,223.29 restitution on September 17, 2021.
The Presentence Report applied a 12-level loss enhancement, +2 for relocating the scheme to evade law enforcement, +2 for obstruction (including an attempted flight and a false letter of support), and +2 for abuse of trust; counsel objected to some enhancements but lost at sentencing.
Kawar filed a 28 U.S.C. §2255 motion asserting various ineffective-assistance-of-counsel claims: bad plea advice/predicted sentence, failure to advocate mitigating facts, failure to object to relevant-conduct or Guidelines enhancements, and failure to consult about an appeal.
The court rejected Kawar’s claims as unsupported or contradicted by his sworn plea allocution and the record, finding counsel made the pertinent objections and that Kawar showed neither deficient performance nor prejudice.
The §2255 motion and a certificate of appealability were denied; judgment entered for the United States.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance re plea advice on likely sentence	Kawar says counsel told him he would be convicted by jury but the plea would produce minimal prison time; counsel pressured him to plead.	Counsel denied coercion; plea transcript and plea agreement show Kawar was advised of sentencing uncertainty and acknowledged satisfaction with counsel.	Denied — plea allocution and agreement rebut allegation; incorrect sentence prediction alone does not meet Strickland.
Failure to advocate mitigating facts / downplay culpability	Counsel was passive, failed to press Kawar's lesser role, and didn’t present arguments to prosecution or at sentencing.	Counsel did advocate; Kawar offers no specific factual omissions or evidence showing different outcome.	Denied — vague allegations lacking specifics fail Strickland prejudice/practice test.
Failure to object to Guidelines enhancements / relevant conduct	Counsel should have prevented application of loss, relocation, abuse-of-trust, and obstruction adjustments.	Counsel did object to relocation and obstruction; loss and abuse-of-trust were stipulated or supported by record; some objections were overruled.	Denied — counsel raised the challenges; losing on a nonfrivolous but unsuccessful argument is not ineffective assistance; meritless objections not constitutionally required.
Failure to consult about appeal	Kawar says counsel failed to advise him about appealing despite nonfrivolous issues.	Plea agreement contained an appeal waiver; Kawar did not show he asked counsel to appeal or identify meritorious appeal grounds.	Denied — no duty to consult shown given appeal waiver and absence of evidence Kawar wanted to appeal.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective assistance test: deficient performance and prejudice)
Roe v. Flores‑Ortega, 528 U.S. 470 (counsel’s duty to consult about an appeal when defendant likely to want to appeal)
United States v. Coleman, 763 F.3d 706 (§2255 relief is available only in extraordinary situations)
Blake v. United States, 723 F.3d 870 (prejudice standard under Strickland explained)
Burkhart v. United States, 27 F.4th 1289 (recognition of Sixth Amendment right to counsel)
Thompson v. Vanihel, 998 F.3d 762 (court need not address both Strickland prongs if one fails)
Yu Tian Li v. United States, 648 F.3d 524 (deference to strategic choices of counsel)
Purnell v. United States, 701 F.3d 1186 (courts may reject allegations that depend on the defendant having lied under oath at plea)
Bethel v. United States, 458 F.3d 711 (defendant’s acknowledgment of no promises undermines later claims about plea inducements)
Spiller v. United States, 855 F.3d 751 (inaccurate sentencing prediction alone is insufficient for Strickland relief)
Resnick v. United States, 7 F.4th 611 (counsel is not ineffective for failing to prevail on a nonmeritorious challenge)
Welch v. United States, 136 S. Ct. 1257 (standard for certificate of appealability)