LEWIS A. KAPLAN, District Judge.
This Section 2255 motion presents claims of ineffective assistance of counsel that reflect vastly more nerve on the part of the movant than merit.
At sentencing, Sanders assured the Court, under oath, that he had read the SA, consulted fully with his sentencing counsel about the SA and entered into it knowingly and voluntarily. He stated that he was "absolutely" satisfied with the representation provided to him by Shechtman, a distinguished attorney. Moreover, Sanders contended that his entry into the SA warranted a sentence below the Guideline range to which Sanders had stipulated because it reflected Sanders' remorse and acceptance of responsibility for his fraudulent actions.
The Court imposed a below-guidelines sentence and made clear that it had done so because it accepted Sanders' claims of remorse and acceptance of responsibility. Indeed, it specifically noted that it would not have imposed the same sentence but for Sanders' waiver of any IAC claims. Thus, Sanders got exactly what he bargained for, a reduced sentence — indeed, a sentence below the guideline range to which he had stipulated in the SA — in exchange for his waiver.
Now, having obtained the benefit of the SA and its waiver, Sanders — in flat contravention of the SA that he knowingly and voluntarily signed and relied upon as evidence of his claimed remorse — has turned around and mounted this double-barreled IAC challenge:
Second, he contends that Hoffman's performance was constitutionally deficient, principally because Hoffman allegedly did not advise Sanders of his maximum sentence exposure if Sanders were convicted after trial. In consequence, Sanders says, he turned down a plea offer that would have carried a 33 to 41 month Guideline range and a maximum exposure of 60 months imprisonment.
This Court — with the benefit of an evidentiary hearing and extensive briefing by experienced retained counsel — rejects Sanders' claims in their entirety.
As an initial matter, Sanders' suggestion that Shechtman's representation was so deficient "that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment"
This conclusion makes it unnecessary to consider either the prejudice prong of the Strickland standard as it applies to Shechtman's representation of Sanders or the IAC claim with respect to Hoffman's representation. Nevertheless, the Court now has a full record. And it has concluded that there is no merit to any of Sanders' claims with respect to either Shechtman or Hoffman. Thus, the motion would be denied even if the Court accepted Sanders' IAC argument concerning the first Strickland prong with respect to Shechtman.
It is unnecessary to develop many of the operative facts underlying Sanders' business activities for which he ultimately was convicted at trial. It suffices to say only the following:
At some point during or before 2009, the United States Postal Service, and perhaps other government agencies, opened an investigation into possible mail and insurance fraud, identity theft, and other crimes committed by Sanders in the course of running his livery cab business. In a largely successful effort to avoid millions of dollars in insurance premiums on his company's vehicles, Sanders lied on insurance applications. He stated falsely, inter alia, that the vehicles were garaged in small towns upstate and used for low risk purposes rather than garaged and used as taxis in New York City. The insurers thus charged far lower insurance premiums than they would have had Sanders told the truth. In addition, Sanders used various aliases or used the names of his drivers and forged their signatures on insurance applications to conceal his personal involvement.
In September 2011, long before any charges were filed, Sanders and his attorneys, Hoffman and Susan Wolfe, met with investigators from the U.S. Postal Inspection Service, who previewed some of their evidence against Sanders. The investigators gave Sanders an extensive spreadsheet detailing the government's then-current information and its estimate of the total losses for which Sanders was responsible, which amounted to over $29 million.
Wolfe testified that "the [sentencing] guidelines . . . were a frequent topic of conversation" following this meeting, and she specifically warned Sanders that the government's loss estimate would result in "an astronomical jump in the guidelines."
In January 2012, Wolfe met with Sanders to discuss whether to seek a pre-indictment resolution of the case.
Two events allegedly occurred in March 2012 that are central to Sanders' claim that Hoffman's representation was deficient and about which the evidence at the evidentiary hearing conflicted in significant respects.
First, on March 8, Sanders and Hoffman had a proffer session with then-Assistant United States Attorney Lee Renzin.
The second event that month relied upon by Sanders — and the one that did occur — took place on March 13. As part of his criminal scheme, Sanders had used his wife Marcie Sanders' insurance license to write some of the fraudulent policies. She therefore was concerned that she too might have criminal exposure and retained her own counsel, Andrew Lankler. On March 13, Sanders, his wife, and Hoffman all met with Lankler to introduce him to the case.
In Sanders' telling, Hoffman advised him at this meeting to reject Renzin's alleged 41 to 51 month plea offer because, according to Sanders, Hoffman said that Sanders would get a better result after trial.
That leaves Hoffman's testimony. Hoffman testified that he never told Sanders that Sanders would do better after trial.
In sum on this particular point, the Court finds that the government made no plea offer during this time period, let alone an offer that included a stipulated guideline range of 41 to 51 months. That is not to say, however, that there were no discussions between Hoffman and the government with respect to a possible pre-indictment disposition. To the contrary. The Court finds that the government's position in this time period was that it would or might be prepared to accept a plea that entailed a stipulated guideline range in the neighborhood of eight to ten years. The Court finds also that Hoffman advised Sanders not to pursue that possibility because he thought Sanders probably would receive a lower sentence even if convicted at trial. And what Lankler heard was the latter part of that discussion, i.e., Hoffman's advice but not the reference to a possible sentence of eight to ten years. And there is no evidence, even from Sanders himself, that he would have accepted a plea with a guideline range of eight to ten years.
Lankler was troubled by Hoffman's statement at the March 13 meeting that Sanders would do better after trial than whatever the government then was suggesting. That unease was perfectly understandable, as it is common knowledge at the criminal Bar that defendants convicted at trial often are sentenced more severely than those who are situated similarly but who have pleaded guilty.
The indictment, which was filed on July 31, 2012 and unsealed on August 10, 2012, charged Sanders with one count of conspiracy to commit mail and wire fraud, five substantive counts of mail fraud, and one count of aggravated identity theft.
On October 8, 2012, the government made a written plea offer under which Sanders, had he accepted it, would have pled to one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371, with a guideline range of 33 to 41 months and a statutory maximum of five years imprisonment.
Wolfe was so surprised by Sanders' rejection of this offer that she called him. She explained that she
Wolfe reminded Sanders that his sentence in fact could exceed ten years. Nevertheless, by the end of the call, Sanders' said that he would not consider any plea that carried a sentence in excess of a year and a day.
Here it bears discussing the factual crux of Sanders' IAC claim against Hoffman — namely, that but for Hoffman's ineffective representation in failing adequately to inform Sanders of his maximum exposure and the strength of the government's case, Sanders would have accepted a plea deal that would have yielded a more favorable outcome than the sentence he received after being convicted at trial. The only evidence before the Court in support of this contention is the word of Scott Sanders himself — that (1) he was not advised of his maximum exposure, and (2) had he been, he would have taken a plea. But as the Court discussed on the record at the end of the evidentiary hearing, Sanders' behavior and demeanor on the witness stand strongly suggested that his testimony was false.
First, there is significant evidence that Sanders was advised on the possible sentencing consequences at several points. As early as January 2012, Wolfe told Sanders that the government's $29 million loss figure could yield a sentence of ten years or more. Hoffman told him around March 2012 that the government was talking about a possible sentence in the eight-to-ten-year range. And in discussing the merits of the October 2012 offer, which contained the five-year cap, Hoffman and Wolfe each separately advised Sanders that he would be facing eight to ten years or more if Sanders were convicted at trial. Yet Sanders rejected even the October 2012 offer.
Second, this was not Sanders' first experience with the justice system nor with the federal Sentencing Guidelines. In 1996, Sanders pled guilty before Judge Brieant to one count of racketeering based on activity that was substantially similar to that for which he ultimately was convicted in this case. During his allocution, Sanders was asked specifically whether he had discussed the statutory maximum penalties and the effect of the Sentencing Guidelines on his plea.
Next, there is the fact that both Hoffman and Wolfe testified credibly that Sanders was unwilling to take any deal that would have exposed him to more than a year and a day imprisonment, or perhaps 18 months at the outside.
The testimony of Hoffman and Wolfe that Sanders' was unwilling to take a plea deal is corroborated by the evidence that he firmly believed he should be able to resolve the matter through a civil penalty despite the fact that he knew full well he was submitting fraudulent insurance applications. As Hoffman testified, "[Sanders] had always said this was a civil matter, just like all the other matters that had come up with basically the same allegations that my firm had handled, and that was not a crime."
In sum, the evidence that Sanders was not advised about his possible sentencing exposure and that he would have taken a plea but for this failure is far outweighed by the evidence and indicators to the contrary. The Court therefore finds that Sanders was advised both about his sentencing exposure and the merits of the plea offers and possibilities. The Court finds further that Sanders rejected them all, with full information, and that he never seriously considered accepting any plea that could result in a sentence in excess of a year and a day. The assertion that he would have accepted any plea offer actually extended to him is false.
Sanders was convicted on all counts
Mr. Shechtman is no journeyman defense lawyer. He served in the U.S. Attorney's office for this district, including as chief of the criminal division, was director of criminal justice for the State of New York, and teaches criminal procedure at Columbia Law School.
Shechtman spoke also with Lankler. Despite the fact that Lankler had serious concerns about Hoffman's representation of Sanders prior to and during trial, Lankler told Shechtman he believed an IAC claim against Hoffman, "in light of what Hoffman was likely to say concerning Scott's position on a plea[,] . . . [would be] an uphill climb . . . such that it had greater value as a bargaining chip than it did as a standalone actual motion."
Upon review of the evidence that likely would be offered at an IAC hearing, Shechtman believed it would be a difficult claim to win. He certainly did not take a rose-colored view of Hoffman's representation, telling the Court at the sentencing hearing that he thought Hoffman's representation had been "shameful," particularly in regards to Hoffman's failure to "press[] [Sanders] vigorously" to plead guilty.
Sanders' and Lanker's testimony would have been weighed against the testimony of Hoffman and Wolfe. Shechtman knew they would testify that they had advised Sanders of the guidelines and possible sentencing range if convicted at trial and had informed Sanders of the plea offers and explained their merits. Moreover, they were likely to testify that Sanders had been unwilling to take any plea deal in excess of a year and a day. Shechtman concluded that an IAC claim would turn in large part on a "credibility contest" between Sanders and Hoffman, and he thought that contest unlikely to go in Sanders' favor.
At bottom, Shechtman believed that the "habeas claim was nonfrivolous" but was unlikely to succeed. He therefore sought to use the potential claim to Sanders' advantage as a bargaining chip. Shechtman previously had used a similar tactic successfully before the undersigned in United States v. Ballesteros.
In Sanders' case, Shechtman thought waiving the claim could be used as a valuable bargaining chip in negotiations with the government. And indeed, in exchange for Sanders' waiver of his rights to appellate review and collateral attack, the government agreed not to pursue a guideline enhancement for abuse of trust and significantly lowered the loss calculation from approximately $16 million to $5.5 million.
In addition, Shechtman believed that the Court would view this waiver as a demonstration of Sanders' remorse and acceptance of responsibility, as it had in Ballesteros. In his view, Shechtman believed the Court "thought Scott Sanders was remorseless and thought that the criminal justice system was somehow a joke," which was "a very bad position to be in at sentencing in this case," and he was hopeful that the SA could improve Sanders' standing with the Court.
Sanders, acting on Shechtman's advice, entered into the SA, in which the parties stipulated to a guideline range of 145 to 175 months' imprisonment and Sanders (1) preserved his ability to argue for a below-guidelines sentence, and (2) waived any right to appeal from or collaterally attack any judgment imposing any sentence within or below the stipulated guideline range.
Sanders appeared for sentencing on February 14, 2014.
Both Shechtman and Sanders relied upon the SA and Sanders' waiver of any right to appeal or to attack his conviction collaterally as demonstrating his remorse and acceptance of responsibility, and both argued on that basis for leniency. Sanders said that he had interviewed several lawyers following his conviction at trial," was lucky enough to meet Paul Shechtman," and was grateful for "all his hard work."
In sentencing Sanders to 121 months' imprisonment, the Court noted expressly that it had accepted the argument that the waiver of appellate and collateral attack rights demonstrated genuine remorse and acceptance of responsibility and relied upon that waiver in imposing a sentence below the stipulated guideline range. The Court observed that:
The Court, speaking to Sanders, observed further that "[y]ou have been superbly represented by Mr. Shechtman. Nobody could have done it better. . . . It has helped you. You are not going to be happy with the result anyway, but it has helped you. I am telling you that."
Sanders, proceeding pro se, moved on April 8, 2015 to vacate his sentence pursuant to 28 U.S.C. § 2255 on the ground that he had not received the effective assistance of counsel from either Shechtman or Hoffman.
On February 2 and 3, 2016, the Court held an evidentiary hearing on Sanders' IAC claims, hearing testimony from Hoffman, Shechtman, Sanders, Lankler, and Wolfe.
There are two fundamental obstacles to Sanders' quest for relief from the judgment of conviction. First, the Court may not properly consider Sanders' collateral attack on the judgment unless Sanders' waiver in the SA of the right to make any such attack were avoided. Even if Sanders could avoid the SA waiver, he then would have to prevail on the merits of the IAC claim with respect to Hoffman. So the necessary starting point is with the claim that Sanders' waiver of the right to collaterally attack the judgment is unenforceable.
The waiver of the right to appeal a criminal judgment is enforceable if it is knowing and voluntary.
To prevail on an IAC claim, the claimant must demonstrate both "that counsel's performance was deficient . . . [and] that the deficient performance prejudiced the defense."
In light of these controlling standards, Sanders' waiver is enforceable unless he establishes that (1) Shechtman, in advising Sanders to enter into the Sentencing Agreement and thus to waive his IAC claim with respect to Hoffman, committed errors "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment,"
Sanders contends that it is per se ineffective assistance to advise a client to waive "what he knows to be a viable" IAC claim "in the plea proceedings."
First, he argues, this Court should extend the logic of Lafler v. Cooper,
Next, Sanders argues that there must be a per se rule because any less categorical position would create "a perverse incentive for attorneys" who ineffectively represented their clients at trial to include an IAC waiver in a sentencing agreement as a self-protection measure.
Third, Sanders points to the Department of Justice's recent memorandum instructing federal prosecutors not to seek IAC waivers,
Sanders' arguments fall short. As an initial matter, Sanders' first argument, the argument based on Lafler, fails because it assumes there is no way to remedy ineffective representation other than through pursuing an IAC claim. Yet Lafler does not prescribe a per se rule — it holds simply that "the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence."
Second, his position is directly inconsistent with the law of this Circuit, which is that "[t]here is no general bar to a waiver of collateral attack rights in a plea agreement."
Lastly, the Department of Justice memorandum does not, contrary to Sanders' implication, concede that IAC waivers are constitutionally more suspect than waivers of other appellate rights. The memorandum does no more than instruct U.S. Attorney Offices not to seek the waiver of IAC claims when negotiating plea agreements. But contrary to Sanders' characterization, the memorandum emphasizes that "the Department is confident that a waiver of a claim of ineffective assistance of counsel is both legal and ethical" and that the purpose of the Department's policy simply is to "bring consistency" to the practice of U.S. Attorneys offices nationwide.
We turn next to the merits of Sanders' claim of deficient performance by Shechtman. Its crux is the assertions that Shechtman (1) advised Sanders than any IAC waiver would be unenforceable, and (2) failed adequately to investigate and evaluate the merits of Sanders' IAC claim against Hoffman.
Sanders claims that Shechtman told him that Sanders would be able to bring an IAC claim against Hoffman despite the clear language of the SA because a waiver of such a claim would be unenforceable.
This claim is nonsense. Sanders has suggested no persuasive basis for supposing that any lawyer, let alone Paul Shechtman, could possibly have thought that the waiver in the SA would be unenforceable. And he has suggested no persuasive basis for concluding that Shechtman told him that. The Court finds that Sanders' testimony to that effect was false. Indeed, it was a deliberate lie, as corroborated by emails that Sanders, through his wife, sent to Shechtman prior to sentencing. In one, he asked that Shechtman include in the sentencing submission a sentence stating that "Mr. Sanders has waved [sic] his rights for appeal and habeaus [sic] corpus to further demonstrate his acceptance of his guilt."
In sum, based on the overwhelming weight of the evidence, the Court finds that Shechtman explained the SA, including the waiver of Sanders' right to file an IAC claim, and that Sanders understood exactly what rights he was giving up and the benefits he stood to gain by signing it. Sanders' testimony that Shechtman and others told him the waivers would be unenforceable is patently false.
Counsel have a duty to investigate possible claims or defenses available to their clients, but need not exhaustively investigate every potentiality.
Sanders argues that Shechtman's analysis of Sanders' potential IAC claim as to Hoffman was constitutionally deficient, both in terms of Shechtman's investigation and his analysis of what that investigation uncovered. The evidence, however, disproves this contention.
First, the evidence shows that Shechtman interviewed the key witnesses and had more than enough information to evaluate reasonably the potential IAC claim. He had numerous conversations with Sanders himself, at least two with Hoffman, one with Wolfe, and one with Lankler. He knew that Sanders claimed that Hoffman failed to advise him to take a plea agreement in March of 2012, which, in Shechtman's (mistaken) understanding, would have had a guideline range of 33 to 41 months and a five-year maximum. Shechtman knew also that Lankler would testify that Hoffman advised Sanders at that meeting that Sanders would get a more favorable sentence after trial than the plea on offer at that time. In addition, Shechtman was aware of the rejected October 2012 plea offer. And, as he made clear at the sentencing hearing, Shechtman certainly did not have a favorable view of Hoffman's representation. Nevertheless, he advised Sanders that the IAC claim with respect to Hoffman was not strong and was worth more as a bargaining chip with respect to the sentence.
Next, Shechtman's analysis of the information he gathered was eminently reasonable. Sanders argues in particular that Shechtman's evaluation that the IAC claim would turn on a "credibility contest" between Hoffman and Sanders inappropriately ignored Lanker's likely testimony and was "tantamount to an attorney advising a client accused of murder that this was a single witness case" despite knowing of a credible exculpatory witness.
Sanders' colorful analogy flies in the face of the evidence. Shechtman carefully considered whether Lankler's testimony would help or hurt Sanders. In particular, Shechtman considered that Lankler's testimony would relate to the March 2012 meeting, which predated the unsealing of the indictment by five months and related at best to a verbal plea offer. Shechtman believed also that Sanders' failure to follow Lankler's advice to consult another attorney would hurt Sanders' claim by corroborating Hoffman's testimony that Sanders was unwilling to consider plea offers. Accordingly, far from disregarding or undervaluing Lankler's testimony, Shechtman in fact engaged in a nuanced analysis of that testimony and concluded that there was a real chance it could hurt Sanders. Indeed, Lankler himself reached the same view as Shechtman concerning the likely outcome of the IAC claim as to Hoffman.
In all the circumstances, there is no evidence whatsoever that Shechtman's performance was anything less than exemplary. It was not constitutionally deficient. Sanders therefore has failed to meet the first prong of Strickland as to Shechtman.
Even if Shechtman's advice to sign the SA had been constitutionally deficient, Sanders' IAC claim with regard to Shechtman could not succeed because he did not show any prejudice. Sanders' post-hearing brief in essence argues that the waiver of collateral attack rights was per se prejudicial, contending that "the answer to the basic question of prejudice is obvious — as a result of the improper advice, Mr. Sanders lost the opportunity to pursue a valid claim of [IAC] against Mr. Hoffman."
Strickland requires Sanders to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Sanders' amended petition argues that Hoffman's representation was deficient because he inaccurately assessed the strength of Sanders' case and therefore advised Sanders to proceed to trial rather than taking a favorable plea deal.
In analyzing counsel's performance in the context of plea negotiations, an attorney must advise his or her client as to the terms of a plea offer "and should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed."
Hoffman's advice that Sanders would get a better result after trial than if he pursued the government's indication that it might take a plea with a sentence in the eight to ten year range is certainly troubling. But the timing of that advice is significant. The conversation Lankler and Sanders testified to was in March 2012, at which point there was no plea offer on the table and what had occurred was an "amorphous" discussion of possibilities.
Moreover, whatever advice Hoffman gave in March 2012 is not necessarily probative of the advice he gave in relation to the October 2012 offer. And there is no evidence before the Court (save Sanders' discredited testimony) that Hoffman advised Sanders to reject the October 2012 plea offer. Indeed, the Court finds that both Hoffman and Wolfe advised him to accept, but Sanders rejected the offer.
Here, the evidence demonstrates that Hoffman sought and received a favorable plea offer for Sanders. As the Court noted following trial, the government's evidence against Sanders was quite strong on mail fraud charges that carried a possible 20 year prison sentence. Yet despite that, Hoffman secured a plea offer on Sanders' behalf that not only had a low guideline range of 33 to 41 months, but also a statutory five-year maximum penalty. While it may have been desirable for Hoffman to have pushed Sanders harder to accept that offer, there is no persuasive evidence that Hoffman inaccurately conveyed the terms of the offer or that he offered unfounded estimates about the strength of the government's case or Sanders' defenses. Sanders elected to roll the dice at trial in hopes of an acquittal. That he gambled and lost is not the fault of his counsel.
Lastly, even if Hoffman's representation were deficient, Sanders has not shown prejudice because he has not met his burden of proving that he would have accepted the plea deal had he received different advice.
"[I]n order to establish Strickland prejudice [in the plea context], a defendant must show that but for the ineffective assistance of counsel there is a reasonable probability that the defendant would have accepted the plea."
As an initial matter, Sanders could not have been prejudiced by Hoffman's advice in March 2012 that he would receive a better outcome even if convicted at trial because there is no evidence that Sanders would have accepted a plea offer in the eight-to-ten-year range, even assuming the government's amorphous discussion of possibilities would have resulted in an offer capable of acceptance if Sanders had pressed the matter. More broadly, Sander was wholly unwilling to accept any plea offer that would have resulted in a sentence in excess of a year and a day. That this was his position was corroborated by every witness other than Sanders, including Lankler, upon whom Sanders pins much of his case. Lankler's impression after the March 2012 meeting was that Sanders was "arrogant" in his belief that the case should be resolved civilly. And there is no evidence such a deal ever was available to him.
Sanders argues that this position was influenced by Hoffman's erroneous advice about the strength of his case.
This Court finds in all the circumstances that there is no reasonable probability that Sanders, but for allegedly constitutionally deficient advice from Hoffman, would have accepted any plea that ever was offered. Accordingly, Sanders has not proved that he was prejudiced even if Hoffman's representation had been constitutionally defective. And because Sanders has failed to prove a reasonable probability that his claim concerning Hoffman would have succeeded, he has failed also to prove that any deficiencies in Shechtman's representation prejudiced him.
Sanders' claims fail on every level. The evidence demonstrates that Sanders was ably and effectively represented by Paul Shechtman, whose performance and strategic choices contributed to a reduced sentencing guideline range and, in addition, to the Court's giving Sanders a below-guidelines sentence. But even if Shechtman's representation of Sanders had been ineffective, the evidence was insufficient to establish any prejudice because Sanders showed neither that Hoffman's representation fell below the constitutional minimum nor that, but for any alleged deficiencies in Hoffman's advice, Sanders would have accepted any plea ever offered to him. At bottom, Sanders gambled that he could win an acquittal at trial and lost the bet. He now seeks to avoid the choices he made that put him in his current position. Unfortunately for him, these are not choices the law permits him to take back.
Accordingly, Sanders' motion to vacate his sentence pursuant to 28 U.S.C. § 2255, DI 143, is denied. A certificate of appealability is denied, and the Court determines that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(d).
SO ORDERED.
There is no duty for counsel to raise every nonfrivolous claim on appeal. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Rather, to show deficient performance by appellate counsel, "the district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues" that were "clearly stronger than those presented." Id. (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985)). In Sanders' situation, this would require some showing that Shechtman failed to investigate these claims adequately, that these claims were viable, and that Shechtman's strategy of waiving these claims was clearly inferior to pursuing an appeal. He has not done so. Moreover, as the government points out, there is a logical inconsistency to the argument that Shechtman failed to challenge the application of the mail fraud statute to Sanders, as this would be a claim of actual innocence, while simultaneously arguing that Hoffman's chief failure was in failing to advise Sanders to plead guilty. DI 183 at 13-14 n.8.
