Fan v. United States , 710 F. App'x 23 ( 2018 )

17-1619
Fan v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 29th day of January, two thousand eighteen.
PRESENT: DENNIS JACOBS,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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Joanna Fan,
Petitioner-Appellant,
-v.- 17-1619
United States of America,
Respondent-Appellee.
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FOR APPELLANT: Michael K. Bachrach, Law Office
of Michael K. Bachrach, New
York, New York.
Richard H. Rosenberg, Law Office
of Richard H. Rosenberg, New
York, New York.
FOR APPELLEE: Erik D. Paulsen, Assistant
United States Attorneys (Susan
Corkery, Assistant United States
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Attorneys, on the brief), for
Bridget M. Rohde, Acting United
States Attorney, Brooklyn, New
York.
Appeal from an order of the United States District
Court for the Eastern District of New York (Irizarry, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the order of the district court is
AFFIRMED.
Joanna Fan appeals the order of the United States
District Court for the Eastern District of New York denying
her motion to reconsider the denial of bail pending
resolution of her motion alleging ineffective assistance of
counsel under 28 U.S.C. § 2255. We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.
Fan pled guilty to embezzling funds from a federal
school lunch program in violation of 18 U.S.C. §
666(a)(1)(A)(i). In her plea agreement, Fan
agree[d] not to file an appeal or otherwise challenge,
by petition pursuant to 28 U.S.C. § 2255 or any other
provision, the conviction or sentence in the event that
the Court imposes a term of imprisonment of 78 months
or below.
App’x at 76. The waiver is binding and bars appeal from
any forfeiture award imposed for any amount at or less than
$3 million. Id. at 94-95. Fan confirmed at her plea
colloquy that she understood the plea agreement. Id. at
63, 69-70, 73, 76. The Government’s Stipulations, which
Fan did not oppose, recommended a Guidelines range of 57 to
71 months and a loss amount exceeding $2.5 million. In
October 2013, the district court sentenced Fan to 57
months’ imprisonment and forfeiture of $3 million.
Fan appealed her conviction and sentence. This Court
found the appellate waiver contained in Fan’s plea
agreement enforceable and dismissed the appeal. United
States v. Fan, No. 13-3924, Dkt. No. 160 (2d Cir. Oct. 17,
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2014). In June 2015, Fan filed a habeas petition pursuant
to 28 U.S.C. § 2255 alleging ineffective assistance
because, among other reasons, her counsel failed to inform
the court that Fan was not waiving her right to contest the
loss amount. Fan’s request for bail pending the resolution
of her habeas petition was denied from the bench. Before
the district court could rule on her § 2255 action, Fan
moved for additional discovery to expand the record. The
court granted limited discovery in the form of a subpoena
to the Department of Agriculture, but the Government moved
to quash to the extent the subpoena implicated certain
privileges. While that motion was pending, Fan made a
third request for bail, which was denied. The district
court then denied Fan’s subsequent request for
reconsideration of the denial of the third bail motion,
leading to this appeal.
We review the denial of a motion for reconsideration
for abuse of discretion. Harris v. Kuhlmann, 346 F.3d 330,
357 (2d Cir. 2003). The standard for reconsideration is
“strict,” and it should be granted only if the moving party
“can point to controlling decisions or data that the court
overlooked.” Shrader v. CSX Transportation, Inc., 70 F.3d
255, 257 (2d Cir. 1995); see Fed. R. Civ. P. 60(b).
Reconsideration is not intended for the court to reexamine
a decision or the party to reframe a failed motion. See
Questrom v. Federated Dep’t Stores, Inc., 192 F.R.D. 128,
130 (S.D.N.Y. 2000).
Fan identifies no question of overlooked law or fact
that could overcome the multiple layers of deference we
apply to a district court’s denial of a motion for
reconsideration of bail in an action alleging ineffective
assistance of counsel. See Calley v. Callaway, 496 F.2d
701, 702 (5th Cir. 1974) (requiring “extraordinary or
exceptional circumstances” to justify the grant of bail
pending habeas). The standard is particularly difficult to
satisfy because Fan’s arguments on the motion for
reconsideration relate to the performance of her sentencing
counsel and are thus foreclosed by a valid appellate waiver
that bars collateral attack via a § 2255 petition.1 See
1 While the Government does not seek to enforce Fan’s
collateral attack waiver with respect to claims of pre-plea
3
Garcia-Santos v. United States, 273 F.3d 506, 509 (2d Cir.
2001) (per curiam).
Fan also misconstrues the issues on appeal, rendering
her remaining arguments inapplicable to this case. Fan’s
good character, the absence of flight risk, and the risk of
irreparable prejudice may bear upon the merits of a bail
motion, but not the instant motion for reconsideration.
See Malik v. McGinnis, 293 F.3d 559, 561 (2d Cir. 2002)
(The appeal of an order denying a motion for
reconsideration “brings up for review only the denial of
the motion and not the merits of the underlying
judgment.”). Fan’s chief contention is that as a matter of
arithmetic, any resentencing would likely result in a
release date that has already passed. The district court
already considered and rejected this argument both when
considering bail and on the motion for reconsideration.
The court was not persuaded that extraordinary
circumstances warranted bail, and Fan could not show that
she would be entitled to a lower sentence even if the
Sentencing Guidelines range were lowered.
Nothing presented on this appeal calls these decisions
into question because there is no new information going to
the merits of Fan’s bail motion that was overlooked by the
district court. Even adopting the modifications to the
loss amount that Fan suggests she could receive in the
highly remote event that she prevailed on her underlying
post-plea ineffective assistance of counsel claim, the
district court could ultimately resentence her for the same
duration. The district court did not abuse its discretion
in denying reconsideration.
ineffectiveness, Fan’s arguments on her motion for
reconsideration address only her claims post-plea
ineffectiveness, i.e., the performance of sentencing
counsel. Her chances of succeeding on such ineffectiveness
claims appear low, which also justifies the denial of the
motion for reconsideration. See Mapp v. Reno, 241 F.3d
221, 226 n.5 (2d Cir. 2001) (“Bail is appropriate pending a
decision in a habeas case only when the petitioner has
raised substantial constitutional claims upon which he has
a high probability of success ...”) (internal quotation
marks and citation omitted).
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For the foregoing reasons, and finding no merit in
Fan’s other arguments, we hereby AFFIRM the judgment of the
district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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