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
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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
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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
3