           Case: 16-11882   Date Filed: 11/02/2018   Page: 1 of 13


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11882
                         Non-Argument Calendar
                       ________________________

         D.C. Docket No. 1:14-cv-23822-JLK; 1:10-cr-20767-JLK-1



LAWRENCE S. DURAN,


                                                         Petitioner - Appellant,


                                   versus

UNITED STATES OF AMERICA,

                                                        Respondent - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (November 2, 2018)

Before WILSON, MARTIN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Lawrence Duran appeals the district court’s denial of his 28 U.S.C. § 2255

motion to vacate his sentence. On appeal, he argues that he had ineffective

assistance of counsel at various stages of the proceedings in the district court.

First, at the pleading stage, Duran argues that his counsel, Lawrence Metsch, was

ineffective because: (1) he failed to advise Duran to plead earlier, which would

have allowed Duran to avoid the money laundering charges brought in the

superseding indictment; (2) he had an unresolved conflict of interest regarding his

son’s prosecution for his involvement in Duran’s business, and as a result, he failed

to encourage Duran to cooperate fully with the government; (3) he erroneously

advised Duran that he had a right to a jury trial determination of the loss amount;

and (4) he failed to advise Duran that the plea colloquy before the magistrate judge

was only a recommendation and that Duran retained the right to withdraw his

guilty plea after the colloquy.

      Next, Duran argues that Metsch was ineffective at the sentencing stage

because: (1) he failed to prepare Duran to testify and failed to properly conduct re-

direct examination; (2) he failed to object to Duran’s Guideline adjustment under

U.S.S.G. § 2S1.1, cmt. n.2(C); and (3) he failed to object to erroneous factual

assertions at sentencing. Finally, Duran argues that he was entitled to an

evidentiary hearing to resolve his claims.




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                                           I.

      Duran first argues that his counsel was ineffective at the pleading stage of

his proceedings below. A claim of ineffective assistance of counsel is a mixed

question of law and fact, which we review de novo. United States v. Patterson,

595 F.3d 1324, 1328 (11th Cir. 2010). In Strickland v. Washington, the Supreme

Court established a two-part inquiry for ineffective assistance of counsel claims:

             First, the defendant must show that counsel’s performance
             was deficient. This requires showing that counsel made
             errors so serious that counsel was not functioning as the
             “counsel” guaranteed the defendant by the Sixth
             Amendment. Second, the defendant 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.

466 U.S. 668, 687 (1984).

      The petitioner bears the burden of proof in establishing both requirements of

the Strickland test. See Roberts v. Wainwright, 666 F.2d 517, 519 n.3 (11th Cir.

1982) (“The burden of proof for showing ineffective assistance of counsel is, and

remains, on petitioner throughout a habeas corpus proceeding.” (internal citations

omitted)). Further, “[we] need not address both [Strickland] prongs if the

[petitioner] has made an insufficient showing on one.” Osley v. United States, 751

F.3d 1214, 1222 (11th Cir. 2014). Given this exacting burden, “the cases in which




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habeas petitioners can properly prevail . . . are few and far between.” Waters v.

Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc).

      “To establish deficient performance, a defendant must show that his

counsel’s representation fell below an objective standard of reasonableness in light

of prevailing professional norms at the time the representation took place.”

Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009). In

the context of challenging a guilty plea, the petitioner must establish that his

counsel’s performance was deficient and that a reasonable probability exists that he

would not have pleaded guilty but for his counsel’s errors. Strickland, 466 U.S. at

687; McCoy v. Wainwright, 804 F.2d 1196, 1198 (11th Cir. 1986).

      Furthermore, “[t]he reasonableness of counsel’s performance is to be

evaluated from counsel’s perspective at the time of the challenged error and in

light of all the circumstances, and the standard of review is highly deferential.”

Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); see also Smith v. Singletary,

170 F.3d 1051, 1053 (11th Cir. 1999) (“When analyzing ineffective-assistance

claims, reviewing courts must indulge a strong presumption that counsel’s conduct

fell within the wide range of reasonably professional assistance.”); White v.

Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992) (observing that courts should

presume effectiveness and avoid second guessing with the benefit of hindsight).

As with the instant case, the “presumption of reasonableness is even stronger when


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we are reviewing the performance of an experienced trial counsel.” Callahan v.

Campbell, 427 F.3d 897, 933 (11th Cir. 2006).

      To satisfy the prejudice prong, the defendant must show a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. It is not

enough to show that the errors had some conceivable effect on the outcome of the

proceeding. Id. at 693.

      Duran has failed to establish that Metsch was ineffective at the pleading

stage. Duran has not demonstrated that Metsch’s performance, even if deficient,

prejudiced him in any material way. First, Duran’s claim that Metsch was

ineffective for failing to encourage him to plead guilty before the superseding

indictment for money laundering was filed is unfounded. Although Duran wanted

to plead guilty before the superseding indictment was filed, Metsch told him not to

because the government planned to bring money laundering charges regardless.

Metsch did not perform deficiently by discouraging Duran from pleading early

where doing so would have been futile. Moreover, because the government always

fully intended to bring money laundering charges against Duran, he was not

prejudiced by his later pleading. Duran claims in his reply brief that the prejudice

he suffered came from Metsch encouraging him to plead guilty without a plea

agreement, rather than from failing to avoid money laundering charges in the


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superseding indictment. We disregard these arguments, as we generally will not

consider arguments raised for the first time in a reply brief. See United States v.

Britt, 437 F.3d 1103, 1104 (11th Cir. 2006).

      Next, Duran erroneously argues that Metsch failed to encourage him to

cooperate with the government, alleging that this failure was due to a conflict of

interest because Metsch’s son had previously been convicted of, and fully served

his sentence for, healthcare fraud. The record reflects that Metsch attempted to

convey information to the government regarding Duran’s knowledge of specific

criminal activity extending into other states. The government, however, was not

interested in Duran’s proffered cooperation, and declined to file a motion for

substantial assistance. Accordingly, Metsch’s performance was not deficient

because Metsch had conveyed Duran’s wish to cooperate with the government.

Moreover, Duran cannot show prejudice, as the district court had no authority to

order the government to file a motion for substantial assistance. See Wade v.

United States, 504 U.S. 181, 185 (1992).

      Duran claims he was prejudiced by Metsch’s erroneous advice that he had a

constitutional right to a jury trial determination on the loss amount. During his

plea colloquy, however, Duran stated that he understood that, by pleading guilty,

he was giving up all rights associated with a trial. Accordingly, Duran understood

the consequences of his guilty plea, and was not prejudiced as a result. This Court


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may end its inquiry here. See Strickland, 466 U.S. at 697 (“[T]here is no reason

for a court deciding an ineffective assistance claim to approach the inquiry in the

same order or even to address both components of the inquiry if the defendant

makes an insufficient showing on one.”).

      Similarly, Duran was not prejudiced by Metsch’s alleged failure to advise

him that the magistrate judge’s adjudication of guilt was merely a recommendation

where the magistrate judge clarified that point during the plea colloquy. The

minute entry for the plea colloquy explicitly notes that Duran waived his right to

appear before a district court judge, and that he consented to have the magistrate

judge adjudicate his guilt. Duran was not prejudiced, and this Court may end its

inquiry here. See id.

      We conclude that Duran has not shown that Metsch was ineffective at the

pleading stage of the proceedings below. His arguments on appeal fail to

demonstrate that Metsch’s performance, even if deficient, prejudiced Duran in any

material way.

                                         II.


      Duran next argues that his counsel was ineffective at sentencing. With

respect to Duran’s first claim of ineffectiveness at sentencing—that Metsch failed

to adequately prepare him to testify regarding his intended loss and failed to

properly conduct re-direct examination—Duran argues that Metsch failed to

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correct any misunderstanding that he ever intended a loss of more than $200

million. The district court may calculate intended loss using the full amount a

defendant fraudulently billed to Medicare even where the defendant knew he

would not receive 100% of the money from Medicare alone. See United States v.

Hoffman-Vaile, 568 F.3d 1335, 1344 (11th Cir. 2009). When the district court

determines the loss calculation under the Guidelines, “the loss is the greater of

actual loss or intended loss.” U.S.S.G. § 2B1.1, cmt. 3(A). “Actual loss” is the

monetary harm that resulted from the offense and was reasonably foreseeable, id.

at § 2B1.1, cmt. 3(A)(i), (iii), while “intended loss” is the monetary harm “that was

intended to result from the offense,” id. at § 2B1.1, cmt. 3(A)(ii), (iii). On cross-

examination, Duran testified that: (1) he had fraudulently billed $205 million to

Medicare for false claims; (2) he wanted to get as much money out of Medicare as

possible; (3) he would not have returned any money Medicare sent him; (4) he

appealed every claim Medicare denied; and (5) he also attempted to get copays

from patients and other providers when he could. Duran testified that he intended

to receive the full amount that he billed Medicare as part of his fraud. Considering

that a district court may use the total amount billed to determine intended loss, and

Duran’s admission that he would not have returned any money to Medicare if it

had sent him all of the $205 million he billed, Metsch had little room to argue for a

lesser calculation. See Hoffman-Vaile, 568 F.3d at 1343–44. At that point, Metsch


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made the strategic decision not to elicit further testimony from Duran—a decision

that certainly falls within the wide range of acceptable strategic decisions. See

Strickland, 466 U.S. at 689.

      Next, Duran claims that Metsch failed to object to Duran’s Guideline

adjustment. He is correct that the court should not have applied the Chapter Three

adjustments for vulnerable victims and his leadership role based on healthcare

fraud underlying his money laundering crimes, and, accordingly, Metsch should

have objected. In United States v. Salgado, we explained that, where a defendant’s

convictions are grouped and the money laundering Guideline, § 2S1.1(a)(1), is

used to calculate the offense level, the Guidelines commentary states that the

district court can only make “Chapter Three adjustments based on the defendant’s

conduct in the money laundering offense itself, not based on his conduct in the

offense from which the money that was laundered was obtained.” 745 F.3d 1135,

1138 (11th Cir. 2014). Specifically, the relevant Guidelines provision reads:

             Notwithstanding § 1B1.5(c), in cases in which [§
             2S1.1(a)(1)] applies, application of any Chapter Three
             adjustment shall be determined based on the offense
             covered by this guideline (i.e., the laundering of criminally
             derived funds) and not on the underlying offense from
             which the laundered funds were derived.

U.S.S.G. § 2S1.1, cmt. n.2(C).

      Nevertheless, Duran fails to show that he was prejudiced by Metsch’s failure

to object because, regardless of any potential error in applying the Guidelines,
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Duran’s Guideline sentence would remain the same. Section 3B1.1 of the

Sentencing Guidelines provides that “[i]f the defendant was an organizer or leader

of a criminal activity that involved five or more participants or was otherwise

extensive, increase by 4 levels.” U.S.S.G. § 3B1.1(a). The presentence

investigation report indicated that: (1) to launder his money, Duran obtained joint

signature authority with a co-conspirator for a corporate bank account for

American Therapeutic Corporation (ATC), into which Medicare deposited over

$85 million; (2) Duran implemented payment schemes to have others transfer

money out of that account by using many sham transactions to the shell companies

Duran owned; and (3) Duran used a check-cashing store that was partially owned

by his friend to launder millions of dollars by having that friend cash checks from

ATC that were written to multiple shell companies. Duran specifically noted that

he had been in charge of ATC throughout the eight years he used his company to

launder his money. Moreover, the court noted that Duran’s criminal conduct

“spanned seven years and involved the direction of dozens of employees.”

      In light of these facts, the record shows that there was sufficient evidence to

deem Duran a leader and organizer of the money laundering scheme, justifying his

Chapter Three adjustment. See U.S.S.G. § 3B1.1(a). Accordingly, regardless of

Metsch’s performance, Duran’s Guideline range would have remained unchanged.

Duran has, therefore, failed to demonstrate prejudice.


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      Lastly, with respect to Duran’s claim that Metsch failed to object to

erroneous factual assertions at sentencing, Metsch’s performance was not deficient.

The court explicitly provided Duran with the opportunity to correct any statements

made at sentencing, and Duran indicated that he had nothing to change or correct.

Moreover, as to Duran’s argument that Metsch failed to prevent the government

from improperly shifting blame for the criminal enterprise from Duran’s

accomplice to Duran himself, Duran’s own testimony refutes any claim of

prejudice. Duran testified that he bore primary responsibility for the healthcare

fraud and money laundering schemes, as he admitted to being in charge of ATC,

and that all of the $205 million he billed to Medicare over eight years was

fraudulent. Accordingly, Duran has not met his heavy burden of showing that

Metsch’s representation was ineffective at the sentencing stage.

                                         III.

      Lastly, Duran argues that the district court erred by failing to grant him an

evidentiary hearing on his § 2255 motion despite his credible allegations. We

review the denial of an evidentiary hearing on a § 2255 motion for abuse of

discretion. Aron v. United States, 291 F.3d 708, 714 (11th Cir. 2002).

      While § 2255 mandates that a court conduct an evidentiary hearing unless

the motion and record conclusively show that the prisoner is entitled to no relief, a

petitioner must support his allegations with at least a proffer of some credible


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supporting evidence. See, e.g., Chandler v. McDonough, 471 F.3d 1360, 1363

(11th Cir. 2006); see also Hill v. Moore, 175 F.3d 915, 922 (11th Cir. 1999) (“To

be entitled to an evidentiary hearing on [an ineffective assistance of counsel claim],

petitioner must proffer evidence that, if true, would entitle him to relief.”). A

hearing is not required on frivolous claims or contentions that are wholly

unsupported by the record. See, e.g., Peoples v. Campbell, 377 F.3d 1208, 1237

(11th Cir. 2004); Aron, 291 F.3d at 715 (explaining that no evidentiary hearing is

needed when a petitioner’s claims are “affirmatively contradicted by the record” or

“patently frivolous”). Nor is such a hearing required “if the claims are grounded

upon generalizations that are unsupported by the record.” Rosin v. United States,

786 F.3d 873, 878 (11th Cir. 2015). Within the context of ineffective assistance

allegations, “in order to be entitled to an evidentiary hearing on any such

challenge, a defendant must show that: (1) his trial counsel’s performance was

deficient and (2) that his trial counsel’s deficient performance prejudiced the

defense.” Id. at 877 (internal quotations omitted). Therefore, “[i]n order for [the

petitioner] to [be] entitled to an evidentiary hearing, [the petitioner must] make a

credible allegation that he was prejudiced by his counsel[’s] deficient

performance.” Id. at 878.

      We conclude that Duran was not entitled to an evidentiary hearing on his

ineffective assistance claims because, as discussed above, the record affirmatively


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refutes his arguments. Accordingly, the district court did not abuse its discretion,

and we affirm its denial of Duran’s § 2255 motion to vacate.


      AFFIRMED.




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