     15-1946-cr
     United States v. Hils, et al.

                         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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   21st day of March, two thousand seventeen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            CHRISTOPHER F. DRONEY,
 8                          Circuit Judges,
 9            TIMOTHY C. STANCEU,
10                          Chief Judge, U.S. Court of Int’l Trade.*
11
12   - - - - - - - - - - - - - - - - - - - -X
13   UNITED STATES,
14            Appellee,
15
16                -v.-                                           15-1946-cr
17
18   ANN HILS,
19                Defendant-Appellant,
20
21   BRANDY GOMEZ,
22            Defendant.
23
24   - - - - - - - - - - - - - - - - - - - -X
25

     *
       Timothy C. Stanceu, Chief Judge of the United States Court of
     International Trade, sitting by designation.

                                                1
 1   FOR APPELLANT:                Norman A. Pattis, Brittany B. Paz;
 2                                 Pattis & Smith, LLC, New Haven, CT.
 3
 4   FOR APPELLEE:                 David T. Huang, Marc H. Silverman,
 5                                 for Deirdre M. Daly, United States
 6                                 Attorney for the District of
 7                                 Connecticut.
 8
 9        Appeal from the judgment of the United States District Court
10   for the District of Connecticut (Thompson, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
13   DECREED that the instant appeal be DISMISSED.
14
15        Ann Hils appeals from a criminal judgment of the United
16   States District Court for the District of Connecticut (Thompson,
17   J.), entered on a plea of guilty (pursuant to a plea agreement)
18   to one count of conspiracy to commit bank and mail fraud in
19   violation of 18 U.S.C. § 1349. We assume the parties’
20   familiarity with the underlying facts and procedural history.

21        Hils admitted in her plea that she submitted materially
22   false real estate appraisals in furtherance of fraudulent
23   mortgage applications. A chart depicting losses associated
24   with certain properties for which she submitted fraudulent
25   appraisals was appended as an exhibit to her written plea
26   agreement, and she admitted its accuracy. Hils’s only argument
27   on appeal is that her counsel was constitutionally ineffective
28   at the plea bargaining stage because he failed to conduct a
29   reasonable investigation into the government’s evidence
30   concerning the appraisals before advising her not to contest
31   the government’s figures in that attached exhibit.

32        “[I]n most cases a motion brought under § 2255 is preferable
33   to direct appeal for deciding claims of ineffective assistance,”
34   Massaro v. United States, 538 U.S. 500, 504 (2003), and we have
35   noted our “baseline aversion to resolving ineffectiveness claims
36   on direct review.” United States v. Salameh, 152 F.3d 88, 161
37   (2d Cir. 1998) (per curiam). Resolution of such claims on direct
38   review may nevertheless be “appropriate when the factual record
39   is fully developed and resolution . . . on direct appeal is beyond
40   any doubt or in the interest of justice.” United States v.

                                     2
 1   Gaskin, 364 F.3d 438, 468 (2d Cir. 2004) (quotation marks
 2   omitted). This is not such a case.

 3        An ineffectiveness claim requires the defendant to show both
 4   “that counsel’s performance was deficient” and that “the
 5   deficient performance prejudiced the defense.” Strickland v.
 6   Washington, 466 U.S. 668, 687 (1984). Even were we to assume
 7   that defense counsel failed to conduct a reasonable
 8   investigation into the government’s loss figures and that such
 9   failure constitutes deficient performance under Strickland, we
10   could not conclude on the present record that Hils was
11   prejudiced. She points to no evidence and makes no argument that
12   the government’s loss figures were inaccurate. If, as the
13   government contends, the figures were accurate (or if they
14   understated actual loss), then Hils was not prejudiced by
15   counsel’s advice to accept their accuracy. She may raise her
16   claim on collateral review, but we have no basis to resolve it
17   on the present record.

18       Accordingly, we hereby DISMISS the instant appeal.

19                                FOR THE COURT:
20                                CATHERINE O’HAGAN WOLFE, CLERK




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