United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge
John Shoemaker pled guilty to willfully failing to truthfully
account for and pay over tax, in violation of 26 U.S.C.
§ 7202. This Court sentenced him to a 41 month term of
imprisonment and three years of supervised release, and
ordered him to pay $1, 830, 324.78 in restitution.
See Judgment (Doc. # 28). This case is before the
Court on Shoemaker's motion to vacate, set aside, or
correct his sentence (Doc. # 42), the government's motion
for summary judgment (Doc. # 48), and Shoemaker's
response (Doc. # 49). Having carefully considered
Shoemaker's motion, the government's motion,
Shoemaker's response, all the arguments and authorities
submitted by the parties, and the entire record, the Court is
of the opinion that the government's motion should be
granted, and Shoemaker's motion should be denied.
was indicted on 20 counts pertaining to his failure to turn
over withheld payroll taxes from a retail clothing store that
he owned. Shoemaker pled guilty to one count of willfully
failing to truthfully account for and pay over tax.
Applicable Legal Standards
brings this motion under 28 U.S.C. § 2255, which
provides for relief “for errors that occurred at trial
or sentencing.” Jeffers v. Chandler, 253 F.3d
827, 830 (5th Cir. 2001). A movant may obtain
relief by showing
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 otherwise subject to collateral attack . . . .
28 U.S.C.A. § 2255(a).
motion asserted two claims of ineffective assistance of
counsel. In his response to the motion for summary judgment,
he expressly abandons one of them. See Response
(Doc. # 49) at 3.
prevail on his remaining claim for ineffective assistance of
must show that . . . counsel made errors so serious that
counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Second, the [petitioner]
must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were
so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
In order to prevail on the first prong of the
Strickland test, Petitioner must demonstrate that
counsel's representation fell below an objective standard
of reasonableness. Id. at 687-88. Reasonableness is
measured against prevailing professional norms, and must be
viewed under the totality of the circumstances. Id.
at 688. Review of counsel's performance is deferential.
Id. at 689.
remaining claim, Shoemaker contends that counsel was
ineffective by failing to learn about an impending change to
the U.S. Sentencing Guidelines which would have reduced
Shoemaker's base offense level from 24 to 22, resulting
in a shorter sentence. Shoemaker argues that counsel should
have been aware ...