United States v. Fabian, 1:07-cr-00355

Background

Fabian pled guilty May 16, 2008 to mail fraud under 18 U.S.C. §1341 and making a false tax return under 26 U.S.C. §7206(1).
The plea included a statement of facts and relevant conduct, accepted by Judge Bennett, with a Rule 11 colloquy confirming voluntariness and competence.
An original 23-count indictment was superseded, adding two tax counts and a false statement count; sentencing followed with disputed guideline calculations but a final agreed range.
At sentencing (Oct. 23–24, 2008), Fabian received 108 months on Count 9, 36 months concurrent on Count 25, plus supervised release and modest fines; restitution and forfeiture were later ordered.
Restitution was ordered totaling $40,162,633.82; final forfeiture included a $20,000,000 money judgment and settlement of certain assets with Fabian and his spouse.
Fabian filed a 28 U.S.C. § 2255 motion in October 2009 challenging multiple pre- and post-plea issues, seeking relief from conviction and sentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of review after guilty plea	Fabian argues review should reach pre-plea ineffective claims.	Government contends such claims are waived by the guilty plea.	Waiver limits review to pre-plea claims that affect voluntariness of the plea; nonjurisdictional defects pre-plea are waived.
Pre-plea ineffective assistance bearing on voluntariness	Counsel failed to investigate witnesses/experts and advise on loss figures pre-plea.	No deficient performance or prejudice shown; no evidence would have altered the plea.	Fabian's pre-plea ineffective-assistance claims fail for lack of deficient performance or prejudicial impact.
Advising to plead guilty and rely on the statement of facts	Counsel coerced Fabian into pleading and agreeing to the government’s loss figures.	Counsel’s advice was reasonable given the plea offer and potential sentence.	Advice to plead guilty and accept the statement of facts was not objectively unreasonable; no prejudice shown.
Post-plea ineffective assistance and failure to appeal	Counsel erred at sentencing and failed to file an appeal when advised.	Counsel adequately consulted; no unequivocal instruction to appeal; Anders brief would have been required for an appeal with no merit.	Post-plea ineffectiveness claims fail; no entitlement to relief for failure to appeal.
Restitution/forfeiture under §2255	Restitution and forfeiture judgments are improper collateral challenges under §2255.	§2255 does not properly attack noncustodial components like restitution/forfeiture; MVRA applies.	Restitution and forfeiture challenges are not cognizable under §2255; relief denied.

Key Cases Cited

Tollett v. Henderson, 411 U.S. 258 (1973) (focus on voluntariness of the guilty plea; pre-plea defects waived)
Broce v. United States, 488 U.S. 563 (1989) (precludes review of antecedent nonjurisdictional errors after valid guilty plea)
Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard for ineffective assistance after guilty plea)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
Lemaster v. United States, 403 F.3d 216 (4th Cir. 2005) (statements made under Rule 11 are binding; contradictions are incredible)
Floresca v. Floresca, 38 F.3d 706 (4th Cir. 1994) (constructive amendment concept in indictment; jury bases)
Ubakanma v. United States, 215 F.3d 421 (4th Cir. 2000) (distinguishing aggravated offenses on elements in indictment)
Flores-Ortega v. United States, 528 U.S. 470 (2000) (requirement to consult about appeals; Flores-Ortega standard)
United States v. Moussaoui, 591 F.3d 263 (4th Cir. 2010) (pre-plea and voluntariness considerations in habeas context)
Frady v. Cunningham, 456 U.S. 152 (1982) (cause and actual prejudice standard for collateral relief)