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145.

Appellate Brief Regarding Loss (continued)

               E.  ECONOMIC LOSS TO COMPETITORS

In addition to the loss suffered by Subject's customers, there were other recognizable economic losses. It is clear that by reaching the market as a result of fraud, Subject's products wrongfully displaced identical products manufactured by reputable drug companies. Those drug products had been researched, approved, manufactured and distributed in accordance with the FDA's regulatory scheme and thus, unlike Subject's drugs, had been proven to be safe and effective. Subject's competitors were thus injured as a direct result of the illegal conduct of XXXXXXX and his coconspirator. This loss, standing alone, would justify the 18-level enhancement under the Sentencing Guidelines for monetary fraud loss.

Based on the declaration of MX. XXXXXXX, Subject (under MX. XXXXXXX's direction) sold 1.25 billion dyazide capsules. (J.A. 178a) at the average price of $110 per 1,000 capsules. (J.A. 179a) XXXXXXX further stated that the innovator sold these capsules at the rate of $250 per 1,000 capsules. (J.A. 179a) Thus, according to XXXXXXX's own declaration, the innovator firm, SmithKline Corporation, lost almost $300,000,000 in revenue as the result of XXXXXXX's fraud.[FN16]

FN16. It could be judicially noticed that generic drugs must, by their very nature, be in competition with the innovator drugs that they are designed to mimic. Under 21 U.S.C. § 355, if there is no innovator, there can be no generic.
That such a loss could appropriately be contemplated by the District Judge was made clear in the recently decided case of United States v. Andersen, 45 F.3d 217 (7th Cir. 1995). There, the court recognized, in a case in which the defendants sold veterinary drugs without FDA approval, that "[a]s a matter of economic theory at least, assuming a fixed amount of product to be distributed to a given set of customers, one competitor's gain ought to equal the others' loss." 45 F.3d at 221. To be sure, under the "unique" (id.) set of circumstances facing the court in the Andersen case, this particular enhancement lacked a factual basis. But the deficiencies in the factual record there -- no evidence of "whether there were any actual competitors in the market the defendants were serving [or] whether consumers would have bought from the defendants' competitors", id. -- is not present here. By the very nature of generic drugs competitors existed and pharmacists and physicians never would have dispensed or prescribed Subject's products had they known the truth about how those products reached the marketplace, that they had not been manufactured using the approved formula, and that they had not been tested in their commercial format.

By analogy, in copyright infringement cases, various courts have held that either lost profit to the copyright holder, or gross revenue from the sale of the bootlegged property are appropriate measures of the loss. See United States v. Larracuente, 952 F.2d 672, 674 (2d Cir. 1992); United States v. Hernandez, 952 F.2d 1110, 1118 (9th Cir. 1991), cert. denied, 113 S. Ct. 334 (1992).

In this case, at XXXXXXX's direction, Subject illegally sold products which a limited number of firms (the innovator firm and in some instances an approved generic), had a legal monopoly to sell. Those competitors were their victims, just as were the legal competitors to the illegal products in the cases cited above.Accordingly, even if this Court were to accept the Appellant's argument that Subject's customers received something of value, loss to competitors would fully justify the sentence that MX. XXXXXXX received.

F. POSSIBLE UPWARD DEPARTURES

As explained below, there are at least three separate grounds on which the Court could have departed upward based on the facts in this case.

_____________________1.__Risk_of_Harm

The drafters of the sentencing guideline addressing fraud -- U.S.S.G. § 2F1.1 -- recognized that, in certain cases, the cognizable monetary loss attributable to the fraudulent conduct at issue might "not fully capture the harmfulness and seriousness of the conduct." Id. at Application Note 9. Accordingly, in such cases, the drafters suggested that "an upward departure may be warranted." Id. One instance recognized by the drafters in which such a departure might be warranted concerned cases where the fraud risk involved reasonably foreseeable, substantial non-monetary harm.

This is such a case. The particular fraudulent conduct at issue here materially increased the risk that Subject's fraud-tainted products would not be safe or effective. This fact would support the imposition of an upward departure in accordance with Application Note 9(a) to U.S.S.G. § 2F1.1. His conduct enormously disrupted the FDA's ability to do its job. It will never be known whether the defendant's conduct caused sickness or death that otherwise would not have occurred. But what is demonstrably clear is that the defendant's conduct unacceptably enhanced the risk of such harm.

As this Court acknowledged in Chatterji, when the risk of loss is great - a departure may be appropriate. U.S.S.G. § 2F1.1, comment, (Application note 7(b) - Nov. 1994). Chatterji at 1346. In this case, unlike the drugs in Chatterji, Subject's drugs never went through the necessary testing, either before or after approval. Accordingly, the risk was great. As the court in Andersen, supra, recognized, the fraud at issue here is a textbook example of the sort of fraud for which a "risk of harm" upward departure is warranted. XXXXXXX defrauded the FDA, thus causing harm to the public, and this "non-monetary harm can be recognized and used in calculating the sentence .... [U]pward departure may certainly be warranted by the non-monetizable risk to human ... health caused by the defendants' failure to follow FDA licensing regulations ... and intentional marketing of unapproved drugs." Anderson, 45 F.3d at 222.

2. Disruption of Governmental Function

MX. XXXXXXX's crimes greatly contributed to America's loss of confidence in the generic drug industry and in the FDA's ability to regulate that industry. Section 5K2.7 of the Sentencing Guidelines provides in pertinent part that, "[i]f the defendant's conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected." Here, the sentencing court was well aware from its prior involvement in more than 50 generic drug cases, and as FDA regulators could testify at any subsequent hearing, FDA's review and approval of ANDAs and ANDA supplements was substantially slowed -- particularly between 1989 and 1991 -- by the emerging scandal in the generic pharmaceutical industry. Consequently, an upward departure could be warranted in this case. E.g., United States v. Heckman, 30 F.3d 738, 743 (6th Cir. 1994) (departure from range of 1-7 months to 24 months warranted where Internal Revenue Service "employees expended enormous effort to identify and correct the false information resulting from [defendant's] filings"); United States v. Murillo, 902 F.2d 1169, 1171-74 (5th Cir. 1990) (upward departure from 15-21 months to 48 months upheld on ground that defendant's sale of numerous illegal immigration documents "severely compromised" a local amnesty program).[FN17]

FN17. It is certainly not the government's contention that this defendant alone was responsible for all the disruption that flowed from the generic drug scandal. But without question he is responsible for a major portion of it which, we submit, could be recognized with an upward departure under Section 5K2.7. See United States v. Rowe, 999 F.2d 14, 18-19 (1st Cir. 1993) (evidence that defendant's own conduct caused loss of confidence in important institution not required to support upward departure where government proved loss of confidence based on climate of fraud in which defendant and others participated).
______3.__Loss_of_Confidence_in_Generic_Drug_ndustry

As noted above, the sentencing court found that: "Most Americans have lost tremendous confidence in generic drugs." (J.A. 148a). Loss of confidence in the important institution of generic drugs would, standing alone, support an upward departure. U.S.S.G. § 2F1.1 - Application Note 9(e).

G. GUIDELINE ANALYSIS - CONCLUSION

The sentencing judge found economic loss in excess of $80 million.[FN18] Appellant has the burden to prove that this finding is clearly erroneous. In addition, the record supports numerous upward adjustments and departures that the sentencing court did not use. Further, given XXXXXXX's price-fixing conviction, the Court would have been fully justified in sentencing MX. XXXXXXX at the high end of the guideline range. As noted above, given the facts in this case the Court showed great leniency to MX. XXXXXXX. No manifest injustice was done. The sentence as imposed should be sustained.

FN18. When, in an effort to limit the upward adjustment under U.S.S.G. § 2F1.1(b), XXXXX's counsel argued that Subject's customers had received something of value, the Court immediately responded by stating: "Absolutely not." (J.A. 131a)
II. PETITIONER HAS NOT DEMONSTRATED THAT THE COURT IMPOSED SENTENCE BASED ON A MISTAKE OF MATERIAL FACT

Petitioner constructs an imaginative, albeit disingenuous, argument from two passing statements made by the Court long after XXXXXXX's sentencing hearing, in proceedings to which MX. XXXXXXX was not a party. These proceedings were a hearing in December 1993, on a Rule 35 motion filed by XXXX XXXXX (Subject's former Vice-President) (J.A. 181a) and the Rule 11 plea hearing for Subject and XXXXXXX XXXXXXXX (Subject's former Treasurer) on antitrust charges in October 1993. (J.A. 206a)

To be successfully attacked in a Section 2255 motion, the petitioner would have to prove that the sentence had been imposed in violation of the Constitution or laws of the United States. United States v. Coyer, 732 F.2d 196, 199 (D.C. Cir. 1984). Specifically, to justify the relief sought, XXXXXXX would have to have proved that at the time of sentencing the judge had proceeded under a misapprehension as to a material fact which, if it had been correctly understood, the result at sentencing would be different. United States v. Addonizio, 442 U.S. 178, 179 (1979); Dean v. United States, 752 F.2d 535 (11th Cir. 1985), cert. denied, 479 U.S. 824 (1986) United States v. Gonzales, 765 F.2d 1393, 1396 (9th Cir.) cert. denied, 474 U.S. 1068; 106 S. Ct. 826 (1989).

XXXXXXX did not meet that burden. These two passing statements were made so long after the XXXXXXX sentencing that they shed no light on the District Court's knowledge of those facts at the time of sentencing. Further, even if these statements had been made at or near the time of XXXXXX XXXXXXX's sentencing they were not material, as neither related to an operative fact in determining XXXXXXX's sentence.

A. XXXXXX'S RULE 35 HEARING

In December 1993, almost a full year after the XXXXXXX sentencing in January 1993, XXXX XXXXXX appeared before the District Court pursuant to Rule 35, Fed. R. Crim. P. to receive credit for the substantial assistance that he provided to the Antitrust Division of the U.S. Department of Justice in connection with their investigation of price-fixing in the generic drug industry. During that hearing, government counsel noted that without MX. XXXXXX' cooperation the government would not have been able to successfully prosecute an antitrust case against Subject, Vitarine, XXXXXXXX XXXXXXXX and Roger Jordan. (Transcript of XXXXXX' Rule 35 Hearing - December 3, 1993, J.A. 182a) Also during that hearing, which occurred almost 1 years after MX. XXXXXX entered prison in July 1992, it was noted that MX. XXXXXX, age 65, had "aged badly in person," was in frail health, and was desperately needed at home because of a family crisis. Id. In light of these facts, the District Court reduced MX. XXXXXX' sentence by 15 months from 48 to 33 months, stating that it intended to give MX. XXXXXX as much credit for cooperation as it had given to MX. XXXXXXX. (J.A. 201a) As noted by government counsel at XXXXXX' hearing, MX. XXXXXXX had received a 2-level downward departure for his cooperation with the Antitrust Division and the government recommended an equivalent reduction for MX. XXXXXX. (J.A. 192a) The District Court accepted that recommendation.

In that hearing, in considering a request for a greater sentence reduction made by Mr. River's counsel, the District Court said: "maybe XXXXXX got credit for downward departures when he pled" (J.A. 196a). From that statement, which was corrected in the very next line of the transcript, Appellant suggests that it had proved that, almost one year earlier when the District Court sentenced XXXXXXX, it was under the mistaken belief that when MX. XXXXXX was sentenced to 48-months imprisonment, that the XXXXXX' sentence included a downward departure for substantial assistance to the government and, as a result of that mistake of fact, the XXXXXXX's sentence was higher than it would otherwise have been.

Such logic could accurately be described as specious. These passing remarks were made long after XXXXXXX was sentenced, in proceedings to which he was not a party. Considering the nature of the remarks, the passage of time, and the hundreds, if not thousands, of matters that came before the sentencing judge during the interim period, the government submits that these remarks shed no light on the Court's understanding of the relevant facts at the time MX. XXXXXXX was sentenced.

B. XXXXXXXX/Subject ANTITRUST PLEA

At this hearing in October 1993, nine months after the XXXXXXX sentencing, the issue before that court was whether to accept a plea of nolo contendere to price-fixing charges. During the discussion, it was noted that MX. XXXXXXX would be a key government witness in the event those charges went to trial. The District Court then noted that MX. XXXXXXX had some credibility problems. In that context, the District Court accurately stated that he did not hear from a single person in the entire Subject case who had recommended XXXXXXX for honesty, not even XXXXXXX's own mother. In his Section 2255 Motion, XXXXXXX enclosed a Declaration from his mother, XXXXXXX XXXXXXX, who admitted that she "did not write the Court a letter of support for her son." (J.A. 205a) But then went on to say that: "Had I written such a letter, I would have vouched for his honesty and integrity." Id.

From this, Appellant suggests that it was clear error for the District Court not to have found that he had proven that his sentence resulted from a material mistake of fact on the part of the sentencing judge. This argument is ludicrous. MX. XXXXXXX is 62-years-old and admitted to crimes that placed him at offense level 32 before downward adjustments. (J.A. 258a) No judge can be presumed to have imposed a harsher sentence because the file did not contain a letter from the defendant's mother attesting to his honesty. The proposition that it was clear error for the District Court not to have found that this statement, made several months after MX. XXXXXXX's sentencing, and which actually is true (XXXXXXX's mother did not send a testimonial to the judge before sentencing), proved that MX. XXXXXXX received a harsher sentence because of a material misapprehension of fact at sentencing is ludicrous on its face. It is even more ludicrous here, in a context where the Appellant was sentenced near the bottom of the guideline range, after receiving a 3-level reduction for acceptance of responsibility, a 4-level downward departure for his cooperation with the government, no adjustment upward for his felony antitrust conviction, and none of the many, readily available, upward departures.

C. THE SENTENCE AS IMPOSED WAS NOT IN VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS

Neither the manner in which MX. XXXXXX' sentence was calculated nor MrX. XXXXXXX's opinion of her son's character could serve as a legal basis for a departure. Accordingly, even if the Court were misinformed on these facts, which as explained above there is no reason to believe was the case, they are not material and therefore provide no basis for relief.

III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Appellant also claimed that his trial defense counsel was deficient in two areas. First, that he did not move for a downward departure based on the disparity between XXXXXXX's sentence and those of his subordinates at Subject, and second, that the guideline calculation overstated the seriousness of the offense. As will be explained below, these claims are frivolous.

A. STANDARD OF REVIEW

In order to overturn his sentence based on the ineffectiveness of his counsel, XXXXXXX had the burden of establishing that his attorney's performance was seriously deficient and that counsel's errors so prejudiced his defense that he was deprived of a fair trial. The question was whether counsel was so ineffectual that the result was thereby not reliable. Strickland v. Washington, 466 U.S. at 687.

In order for the Section 2255 motion to have been granted, XXXXXXX would need to have proven that "but for the unprofessional errors [of his trial attorney] the results in the proceeding would have been different". Carter v. Holt, 817 F.2d 699, 701 (11th Cir. 1987). United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994), cert. denied, 115 S. Ct. 949 (1995); Perry v. Leeke, 832 F.2d 837, 840 (4th Cir. 1987), cert. granted, 485 U.S. 976 (1988), judgment aff'd, 488 U.S. 272 (1989). XXXXXXX needed to show that his attorney failed to exercise the skills and diligence that a reasonably competent attorney would demonstrate under similar circumstances, and that he, XXXXXXX, suffered material prejudice as a result. United States v. Custis, 988 F.2d 1355, 1362 (4th Cir.) cert. granted, 114 S. Ct. 299 (1993), judgment aff'd, 114 S. Ct. 1732 (1994). Conclusory allegations and speculation are insufficient as a matter of law to rebut the presumption of competency. See Clanton v. Blair, 619 F. Supp. 1491, 1496 (E.D. Va. 1985). Further, in order to prevent a flood of intrusive post-trial inquiries, there is a strong presumption that counsel provided effective assistance. Harich v. Dugger, 844 F.2d 1464, 1469 (11th Cir. 1988), cert. denied, 489 U.S. 1071 (1989).

The Appellant had the burden of demonstrating specific errors that actually impacted the outcome of the proceeding. Further, counsel's deficiencies must be "outside the wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. at 690. To demonstrate prejudice, the petitioner must prove that "there is a reasonable probability that, but for counsel's unprofessional errors the result ... would have been different." United States v. Malave, 22 F.3d 145, 147 (7th Cir. 1994) (emphasis added) (quoting Strickland, 466 U.S. at 694). Therefore, in considering the merits of petitioner XXXXXXX's claim, the Court must ask: had trial counsel done as is now suggested whether petitioner would have "had a reasonable probability of receiving [the requested] sentencing reductions ...." [emphasis added] United States v. Partee, 31 F.3d 529, 533 (7th Cir. 1994).In resolving claims of ineffective assistance of counsel, the District Court must look at the totality of the circumstances and the entire record. Griffin v. Wainwright, 760 F.2d 1505, 1510 (11th Cir. 1985), vacated on other grounds, 476 U.S. 1123 cert. denied, 476 U.S. 1123 (1986). In such a motion, the Section 2255 petitioner bears a very heavy burden of proof because of the strong presumption that counsel's representation was reasonable. Lema v. United States, 987 F.2d 48, 51(1st Cir. 1993).

With regard to XXXXXXX's request for a hearing on this issue, the burden was also on petitioner to justify the need for an evidentiary hearing. Thames v. Dugger, 848 F.2d 149, 151 (11th Cir. 1988); Thomas v. Zant, 697 F.2d 977, 977 n.2 (11th Cir. 1983), vacated on other grounds, 478 U.S. 1016 (1986). A hearing is not required on claims based upon unsupported allegations or where petitioner's allegations are affirmatively contradicted by the record. United States v. Guerra, 588 F.2d 519, 520-21 (5th Cir. 1979) cert. denied, 450 U.S. 934 (1981). See also Moran v. Hogan, 494 F.2d 1220 (1st Cir. 1974); Chandler v. United States, 413 F.2d 1018, 1019 (5th Cir. 1969).

Likewise, were XXXXXXX not entitled to relief, even if those factual allegations in his motion had been true, the District Court would have no need to conduct an evidentiary hearing. United States v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981); Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir. 1974); Honneus v. United States, 509 F. Supp. 1135, 1137 (D. Mass. 1981).

B. APPELLANT HAS NOT DEMONSTRATED ANY INAPPROPRIATE SENTENCE DISPARITY

The burden of showing sentencing factor manipulation rests with the defendant. United States v. Gibbens, 25 F.3d 28, 31 (1st Cir. 1994). Here, however, XXXXXXX has not alleged that the government unfairly manipulated his sentence upward. In fact, XXXXXXX conceded that the Court utilized the correct guideline in his case. (XXXXXXX's 2255 Memorandum at 19, Dkt Entry # 42). He alleged that the government unfairly manipulated other individuals' sentences downward. XXXXXXX offered no evidence of this, but even if true and proven, it would not justify a reduction of sentence for XXXXXXX.

Disparity of sentences among co-conspirators, absent actual prosecutorial misconduct, is not a proper basis for departure. United States v. Fonville, 5 F.3d 781, 783 (4th Cir. 1993), cert. denied, 114 S. Ct. 1839 (1994); United States v. Ellis, 975 F.2d 1061, 1963 (4th Cir. 1992), cert. denied, 113 S. Ct. 1352 (1993). While such disparity may seem inequitable, utilizing this theory to justify "a downward departure would be tantamount to trying to make two wrongs equal a right." Id. at 1006 n.2. XXXXXXX did not allege, let alone prove any misconduct by the government.

Further, the government submits that Appellant's argument is negated by the holding in United States v. Hall, 977 F.2d 861, 863-65 (4th Cir. 1992). In Hall, in rejecting a sentence disparity argument, this Court concluded that a district court can no more rely on an invalid factor in determining whether to depart than it can in determining how far to depart. Under Hall, the only factors on which a district court may rely in determining the extent of a downward departure are those that could independently support the initial decision to depart. Id. at 865.

C. THE GUIDELINES DID NOT OVERSTATE THE SERIOUSNESS OF MX. XXXXXXX'S CRIMES

XXXXXXX's argument that the guidelines as applied to him overstated the seriousness of his criminal conduct is based on a false premise. He claimed that Subject's customers received what they expected -- generic drugs which had the same effect as their brand name equivalents. (XXXXXXX Brief, at 25) This premise, however, ignores that when XXXXXXX's counsel, at the sentencing hearing, put forward that exact same argument, the Court expressly rejected it finding:

Not one of the consumers received the product for which theybargained. Not one of these products was the product that wasprescribed by the doctor or they bargained for because theyall had defects in them of some sort or the other.

(J.A. 131a). Accordingly, had XXXXXXX's counsel moved for a downward departure on this ground, there is no possibility that it would have been granted. To argue that the failure to make such a frivolous motion constituted ineffective assistance is, in itself frivolous.

In United States v. Watts, 52 F.3d 335 (9th Cir. 1995), defendant argued that his counsel was ineffective because he failed to argue for a downward departure based on defendant's history of mental illness. The Court concluded that, since counsel argued for a sentence at the low end of the guideline range based on the defendant's mental state, and the court refused to do so, that it was not reasonably probable that the result would have been different had counsel moved for a departure. Here, even though XXXXXXX's counsel raised this argument, he was not sentenced at the bottom of the range. It is not probable that had XXXXXXX's trial attorney simply used the word "departure' that the result would have been different.

D. XXXXXXX'S TRIAL DEFENSE COUNSEL PROVIDED COMPETENT REPRESENTATION

In light of the numerous upward departures that were possible given the facts of this case, trial defense counsel recognized that it was very difficult to forcefully make arguments that would adjust the sentencing range downward (let alone move the court for departures), "without at the same time appearing in some way to be attempting to minimize the seriousness of the crimes..." (J.A. 133a). Attempting unsuccessfully to minimize the seriousness of the crimes could have damaged the credibility of the defense and thereby resulted in a sentence at the upper end of the guideline range (based on the seriousness of the offense and the antitrust violations), an upward departure based on the disruption of the FDA, risk of harm, and destruction of confidence in generic drugs, and/or result in less of a downward departure under U.S.S.G. § 5K1.1., which (even though XXXXXXX had initially lied to the government in his initial cooperation interviews (J.A. 116a and 136a) the Court stated was more of a downward departure than he had given to anyone else. (J.A. 156a)

As noted above (at p. 13), MX. XXXXXXX received a sentence that was approximately one half of what it could have been without any upward departures. In addition, as pointed out above, there were numerous potential departures which the Court could have utilized and, given the price-fixing conviction, a sentence at the top of the range would have been justified. Given the health risks that Subject's drugs posed to the American public, given the money that MX. XXXXXXX and his firm made, given the negative impact that MX. XXXXXXX's conduct had on the generic drug industry, and given the negative impact that MX. XXXXXXX had on the lives of the Subject employees, it is a tribute to his trial defense counsel's skill that the Appellant received as lenient a sentences as he did.

MX. XXXXXXX's representation was very skilful. This claim is frivolous.

IV. THE RULE 32(a)(2) PROBLEM HAS BEEN ADEQUATELY ADDRESSED

A. XXXXXXX'S RIGHT OF APPEAL HAS BEEN REINSTATED

This Court has held that failure of the sentencing court to advise a convicted defendant of his right to appeal, as required by Rule 32(a)(2), Fed. R. Crim. P.,[FN19] requires the reinstatement of the defendant's right to appeal. United States v. Paige, 443 F.2d 781, 782 (4th Cir. 1971). This per se rule was adopted in order to avoid litigating the question of whether the defendant had been fully informed of his right to appeal.

FN19. Former Rule 32(a)(2), Fed. R. Crim. P., is now Rule 32(c)(5).
This per se rule is not in force in all circuits, See McCumber v. United States, 30 F.3d 78, 79 (8th Cir. 1994). However, while the language of Rule 32 has changed significantly since Paige, there is no indication that this Court has abandoned the per se rule it articulated in Paige. Given that the record in this case did not affirmatively reflect that MX. XXXXXXX was advised of his right to appeal his sentence, the District Court issued a new judgment of conviction from which MX. XXXXXXX could then take a timely appeal. Appellant argues that this was inadequate and that the District Court should have held an additional sentencing hearing. Adopting the language used by the Court of Appeals for the Third Circuit, the United States suggests that given the circumstances of this case "to require the formality of a resentencing would be a useless and time-consuming gesture" United States v. Deans, 436 F.2d 596, 600 (3d Cir.), cert. denied, 403 U.S. 911 (1971).

In asking that this case be remanded for resentencing, Appellant noted that: "[t]he district court recognized that MX. XXXXXXX had been deprived of his right to appeal, but failed to grant effective relief." (Appellant's Brief at 19). XXXXXXX then suggests that the only appropriate relief that could be granted would be for the District Court to reprise the sentencing hearing.

First, the claim that MX. XXXXXXX was deprived of his right of appeal is a bit of overstatement. Appellant accurately noted that after the XXXXXXX sentencing the District Court failed to inform him, on the record, that he had the right to appeal the sentence. Appellant also accurately noted that former Rule 32(a)(2), Fed. R. Crim. P., expressly directed the sentencing court to do so and that this Court has applied a per se rule in reviewing such error. However, MX. XXXXXXX has never suggested that his very experienced, retained counsel, had not in fact fully informed him of his appellate rights. This issue presents a technical error that in no way, in this case, adversely impacted the rights of MX. XXXXXXX. This is a situation where the Appellant is properly utilizing a loophole to resurrect his standing to appeal, nothing more, nothing less. Accordingly, but for the per se rule applied to such errors in this circuit by United States v. Paige, 443 F.2d 781 (4th Cir. 1971), MX. XXXXXXX's, appellate rights would quite properly have lapsed almost two years ago when the facts were still fresh.[FN20]

FN20. Appellant claims that the District Court's order was inadequate to grant jurisdiction to this Court. If this Court believes that a direct appeal on the present record is inappropriate, it may wish to consider whether the per se rule is applicable here. See McCumber v. United States, 30 F.3d 78 (8th Cir. 1994).
In response to Appellant's motion below, the United States suggested that the District Court's failure to advise the Appellant of his right to appeal his sentence related to matters which occurred, or more appropriately did not occur, only after the sentence was imposed. Thus, the failure of the trial judge to inform the defendant of his right to appeal the sentence in no way impacted the sentencing procedure which preceded it. A requirement that the district court repeat the sentencing procedure de novo because it failed to perform a post-sentencing, ministerial task, would be a gross waste of the Court's time as well as that of the U.S. Probation Office, and of any witnesses who would be called at the sentencing. Particularly here, where the defendant was convicted of serious offenses almost four years ago (Plea hearing, November 7, 1991, see docket entry 3, J.A. 4a), the course suggested by the Appellant is ill advised. The District Court's order on July 18, 1995, (J.A. 255a), put the defendant in exactly the same legal position that he would have been in on January 25, 1993, when sentence was imposed. He had 10 days within which to file his appeal.

Appellant's suggestion that this Court direct the District Court to redo the sentencing hearing, without any finding by this Court that the hearing was in any way deficient, should be rejected.

B. XXXXXXX HAS NOT DEMONSTRATED BIAS ON THE PART OF THE SENTENCING JUDGE

Appellant has made no showing that, in the event a remand is ordered, this case should be assigned to a different judge. Appellant has met none of the three tests set out in United States v. Guglielini, 929 F.2d 1001 (4th Cir. 1991). In Guglielini this Court held that "absent some affirmative act on our part, we shall be locked in an endless cycle of remands and renewed appeals that will leave us no closer [to resolution].

As a claimed basis for assigning this case to a different sentencing judge, Appellant only points to the District Judge's expressed disagreement with this Court' ruling in United States v. Chatterji, 46 F.3d 1336. What the Appellant neglects to note, however, is that the District Judge's expressed disagreement with the holding in Chatterji was no more vociferous than that of the dissenting judge on the panel of this Court that handed down the Chatterji decision and, of greater importance, Appellant failed to note that after the remand of Chatterji, to the same sentencing judge, he followed both the letter and the spirit of this Court's holding.

If the District Court followed this Court's holding on the Chatterji remand, on what basis could it be concluded that the same judge would not again follow the ruling of this Court if it remanded XXXXXXX? The United States suggests that no such basis exists. While strongly urging that there is no basis for a remand, if this Court concludes otherwise, the United States submits that there would still be no basis to send this case to a new judge. See Kopf v. Skyrm, 993 F.2d 374, 381 (4th Cir. 1993).

The District Court acted appropriately when it issued a new judgment that would allow MX. XXXXXXX to appeal the sentence that was imposed. Based on the facts already before the District Court, the sentence that was imposed in January 1993, could be reimposed without the taking of additional evidence.

V. CONCLUSION

This appeal is properly before this Court. It would serve no proper purpose to remand the case to the District Court to hold an additional sentencing hearing. This Court should resolve the issues raised by MX. XXXXXXX's appeals. However, in considering the issues raised: Appellant has not established that, given the unchallenged facts presented at sentencing, the findings of the District Court that XXXXXXX's crimes resulted in economic loss, was clearly erroneous. The sentence which has been challenged on direct appeal was therefore appropriate. Likewise, the Appellant has not established that his sentence was affected by any misapprehension of material facts by the District Court. Finally, Appellant has not established that his trial defense counsel provided inadequate representation at sentencing and that counsel's failings resulted in a more severe sentence. Accordingly, the sentence of the District Court, which is being challenged on direct appeal, as well as its denial of Appellant's Motion To Vacate The Sentence, pursuant to 28 U.S.C. § 2255, should be affirmed.

Respectfully submitted,

Lynne A. Battaglia United States Attorney District of Maryland

Gary P. Jordan First Assistant U. S. Attorney 600 United States Courthouse 101 W. Lombard Street Baltimore, Maryland 21202 (410) 962-2458 ext.369

_____________________________ Lawrence G. McDade Deputy Director Office of Consumer Litigation U. S. Department of Justice P.O. Box 386 Washington, D.C. 20044 (202) 307-01388888

[updated June 1998]