United States v. Schachter
Opinion of the Court
MEMORANDUM
Herbert Schachter appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion challenging the 210-month sentence imposed following his jury conviction for eleven counts of aiding and abetting mail fraud, five counts of inducing transportation of persons in interstate commerce, and six counts of aiding and abetting money laundering, in violation of 18 U.S.C. §§ 1341, 2314, 1956(a)(1)(A)®, and 2, respectively. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see United States v. Christakis, 238 F.3d 1164, 1168 (9th Cir. 2001), and we affirm in part, reverse in part, and remand.
Schachter first contends that counsel was ineffective because counsel failed
Schachter next contends that counsel was ineffective for not objecting to the improper grouping of the money laundering and fraud counts. As the government correctly concedes, it was erroneous for the district court to group the money laundering and fraud offenses to determine Schachter’s offense level. See United States v. Taylor, 984 F.2d 298, 803 (9th Cir. 1993) (holding that grouping wire fraud and money laundering is not appropriate because they measure harm differently) (superceded by U.S.S.G. Amendment 634 (2001)). By not contesting the grouping, counsel’s performance fell below an objective standard of reasonableness. Cf. United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993) (concluding that counsel was ineffective for failing to object to the government’s breach of the plea agreement). Because Schachter’s sentence would have been lower, see Taylor, 984 F.2d at 303, he was prejudiced by Counsel’s deficient performance. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
We therefore reverse the denial of Schachter’s section 2255 motion and remand for re-sentencing.
AFFIRMED in part, REVERSED in part, and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. On remand, the district court shall apply the November 1, 1995, version of the guidelines because application of the 2002 version will violate the ex post facto clause. See United States v. Johns, 5 F.3d 1267, 1272-73 (1993).
Reference
- Full Case Name
- United States v. Herbert SCHACHTER
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- 1 case
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- Published