UNITED STATES OF AMERICA v. FREDRIC AARON (2020)

MEMORANDUM OF DECISION & ORDER

In October 2016, pursuant to a written plea agreement with the government, defendant Fredric Aaron (“the Defendant”) pleaded guilty to a superseding information charging him with being an accessory-after-the-fact to the securities fraud of Eric Aronson (“Aronson”). On March 13, 2017, the Court sentenced the Defendant to a term of 14 months of imprisonment; one year of supervised release; and restitution in the amount of $456,000. The Defendant was released from custody on June 4, 2018, and completed his period of supervised release on June 3, 2019.

Presently before the Court is a petition by the Defendant requesting a writ of coram nobis vacating his conviction due to an alleged error in the amount of restitution ordered by the Court as part of his sentencing (hereinafter the “Restitution Order”). For the following reasons, the Court denies the Defendant's petition.

I. BACKGROUND

A. The Offense.

Starting in 2006, Aronson and his co-conspirator, Vincenent Buonaro (“Buonaro”), started soliciting individuals to invest in Permapave Industries, LLC and related companies (“Permapave”). In exchange for investor funds, Aronson provided over 200 individuals with promissory notes that promised monthly rates of return from 7.8% to 33%, or 94% to 400% per year. By January 2009, it became clear that the promissory notes could not be paid. Permapave simply was not selling sufficient goods to pay the investors.

Shortly thereafter, the Defendant, who Aronson hired as the attorney for Permaprave in 2008, established a method to exchange the promissory notes for convertible debentures. Those convertible debentures, however, paid a small fraction of what would have been owed on the promissory notes. The convertible debentures also held the promise of allowing the investors to convert the debenture into stock should a beneficial merger occur. From approximately January to May 2009, 72 investors elected to exchange their promissory notes for the convertible debentures.

The Defendant worked to position Permapave into a reverse merger, in which the privately-held Permapave would acquire a public shell company. Such an acquisition would allow Permapave to bypass the complex process of becoming a publicly held company. Nonetheless, the reverse merger still required a financial audit of Permapave. The Defendant was involved in hiring the financial auditor. The auditor, however, could not obtain needed documents and therefore resigned. The Defendant helped to hire another auditor that similarly did not finish the audit because it was not provided with necessary documents and information.

During this time, many investors met the Defendant at the Permapave offices, where the Defendant maintained an office, to complain about not being paid. The Defendant spoke with Buonauro after Buonauro left Permapave because of a conflict with Aronson. Buonauro told the Defendant that Aronson was defrauding Permapave investors. The Defendant ignored Buonauro.

In June 2010, the Permapave companies bought a public shell company in a reverse merger. Shares of stock were issued to 30 investors who ultimately converted their convertible debentures to common stock of a Permapave company. Those shares were worth a small fraction of their initial investment.

In approximately July 2010, Aronson wanted to use the Defendant's attorney escrow account to store Permapave funds. The Defendant agreed to Aronson's request to use the Defendant's attorney escrow account as Permapave's operating account; allowed Aronson to dictate how and when the funds would be used; and withdrew cash from the account when told by Aronson. By using the escrow account, the Defendant helped to conceal Aronson's securities fraud from investors and became an accessory-after-the-fact.

Ultimately, the Defendant allowed the funds of three investors to be deposited into his escrow account. Aronson's misuse of those funds caused the investors a loss of $456,000.

B. The Guilty Plea and Sentencing.

On October 14, 2016, the Defendant pleaded guilty, pursuant to a written plea agreement, to a superseding information charging him as an accessory-after-the-fact to the securities fraud scheme perpetrated by Aronson. The Defendant's plea agreement provided an estimate of applicable loss under the United States Sentencing Guidelines of more than $250,000. The plea agreement also provided that the Defendant “agree[d] to pay restitution in the amount of $456,000 in accordance with Exhibit A of the proposed restitution order in connection with the plea.” ECF 336-1 ¶ 1(e). Exhibit A identified the three victims, their losses, and the amount the Defendant owed to each victim, which totaled $456,000.

At the guilty plea hearing on October 14, 2016, the Defendant was apprised of the requirement to pay restitution in the amount of $456,000. ECF 336-4 at 10:25–11:14, 13:25–14:15.

At his March 31, 2017, sentencing hearing, the Defendant reiterated the need to pay restitution in the amount of $456,000, stating in pertinent part:

Before I came to work for Permapave, I was financially stable, I had a good reputation in the profession, I had a good income and no personal debt.

Since then, I have incurred massive legal fees. I have been hit with a $2.1 million judgment from the SEC and will owe $456,000 in restitution to the investors in this case.

ECF 336-5 at 19:1–7.

II. DISCUSSION

A. The Legal Standard.

Coram nobis relief is “an ‘extraordinary remedy’ available only in rare cases.” Kovacs v. United States, 744 F.3d 44, 54 (2d Cir. 2014) (quoting United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954)). Its application is “strictly limited to those cases in which errors of the most fundamental character have rendered the proceeding itself irregular and invalid.” United States v. Foont, 93 F.3d 76, 78 (2d Cir. 1996). The writ is “essentially a remedy of last resort” because unlike habeas relief, the petitioner is no longer in custody. Fleming v. United States, 146 F.3d 88, 89–90 (2d Cir. 1998) (per curiam); see also United States v. Mandanici, 205 F.3d 519, 532 (2d Cir. 2000) (Kearse, J., concurring) (“[T]he granting of coram nobis normally results in the expungement of the conviction, with no possibility of further proceedings to determine whether the petitioner was guilty of the offense charged.”). “The harm to the petitioner is therefore much less and, accordingly, courts are more reluctant to grant relief.” Moskowitz v. United States, 64 F.Supp.3d 574, 577 (S.D.N.Y. 2014) (collecting cases).

In light of this high bar, a petitioner seeking the grant of coram nobis must make three showings: (1) “there are circumstances compelling such action to achieve justice”; (2) “sound reasons exist for failure to seek appropriate earlier relief”; and (3) “the Petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ.” Kovacs, 744 F.3d at 49. The Court presumes that the prior proceedings were correct, and “the burden rests on the accused to show otherwise.” Morgan, 346 U.S. at 512, 74 S.Ct. 247.

B. Application to the Facts.

1. As to the Timeliness of the Defendant's Petition.

A petitioner seeking a writ of coram nobis must demonstrate “sound reasons exist for failure to seek appropriate earlier relief.” Foont, 93 F.3d at 79. Courts have interpreted this requirement to mean that “the failure to either directly appeal a restitution order or take other timely action bars a petitioner from challenging that order through a petition for a writ of error coram nobis.” Carnesi v. United States, 933 F. Supp. 2d 388, 395 (E.D.N.Y. 2013) (Spatt, J.).

On this basis, the Government argues that the Court should deny the Defendant's petition as untimely because he has known the amount of restitution he owed since he pled guilty on October 14, 2016. The Defendant never challenged the Restitution Order on direct appeal and waited nearly three years to file his petition. In response, the Defendant argues that he could not seek earlier relief because: (1) he only had limited access to case files during his incarceration; (2) he feared retaliation from the Bureau of Prisons; and (3) coram nobis relief is designed to be invoked after a defendant has been released from the custody of the Government.

The Court doubts that the Defendant has put forward sound reasons for his delay. Notably, none of these excuses explain the Defendant's failure to pursue a direct appeal of the Restitution Order. Nor has the Defendant provided evidence demonstrating he was prohibited from seeking habeas relief while in custody. Although a writ of coram nobis provides defendants released from federal custody an opportunity to challenge their convictions, it is not intended to permit those defendants to deliberately wait until after their release to do so. Nonetheless, out of an abundance of caution, the Court will proceed to evaluate the merits of the Defendant's application.

2. As to the Plea Waiver in the Defendant's Plea Agreement.

In the Defendant's plea agreement, he “agree[d] not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment of 27 months or below” (the “Appeal Waiver”). ECF 336-1 ¶ 4. The Government argues that the Appeal Waiver generally bars the Defendant from challenging his conviction, because the Court imposed a sentence of 14 months of imprisonment.

However, the Second Circuit has found that an appeal waiver covering a challenge to a defendant's “conviction or sentence” does not apply to challenges of a restitution order. See United States v. Oladimeji, 463 F.3d 152, 157 (2d Cir. 2006) (“We find that the agreement's use of the term ‘sentence’ was at least ambiguous, and we resolve that ambiguity against the government. Having found that Oladimeji's appeal of his restitution order is not covered by the applicable appeal-waiver provision, we proceed to the merits of his arguments.”). Accordingly, the Court may not deny the Defendant's petition on this ground.

3. As to the Merits of the Defendant's Petition.

a. As to Whether the Restitution Order Was Erroneous.

Pursuant to 18 U.S.C. § 3663(a)(1)(B)(i)(I), a court ordering that a defendant make restitution to a victim “must consider (1) the amount of the loss sustained by each victim as a result of the offense, (2) the financial resources of the defendant, (3) the financial needs and earning ability of the defendant and the defendant's dependents and (4) such other factors as the court deems appropriate.” United States v. Donaghy, 570 F. Supp. 2d 411, 421 (E.D.N.Y. 2008). Further, a restitution order must be tied to the victim's actual, provable, loss, because “the purpose of restitution is essentially compensatory,” United States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006), and because the MVRA itself limits restitution to “the full amount of each victim's loss,” 18 U.S.C. § 3664(f)(1)(A); see also United States v. Marino, 654 F.3d 310, 319–20 (2d Cir. 2011) (“[R]estitution is authorized only for losses that [were] ․ directly caused by the conduct composing the offense of conviction and only for the victim's actual loss.”).

Citing these requirements, the Defendant argues that the Court failed to properly evaluate the loss to one of the three identified victims, to whom the Court ordered the Defendant pay $6,000 in restitution. “[O]n information and belief,” the Defendant asserts that the “$6,000 in question was used to pay for Victim C's expenses incurred in travelling to Las Vegas, attending the 2011 World of Concrete Expo, accommodations at a hotel in Las Vegas, and other travel-related expenses.” ECF 329 ¶ 21.

The Defendant's argument is unavailing. 18 U.S.C. § 3663(a)(3) explicitly permits the Court to “order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.” The Defendant assented in his plea agreement to pay Victim C $6,000. As a result, it is of no moment that the Defendant now believes that the Victim C did not actually suffer such losses. See United States v. Uppal, 797 F. App'x 17, 21 (2d Cir. 2019) (“We need not decide whether section 3663A authorizes restitution here, since section 3663(a)(3) (also cited in the Agreement) unambiguously does so.”); United States v. Baig, 654 F. App'x 26, 29 (2d Cir. 2016) (“Here, the parties agreed to the restitution amount that the District Court ultimately ordered in the plea agreement, and the District Court was authorized to impose restitution for that amount. Baig's arguments to the contrary are unavailing.”); United States v. Mizrachi, 48 F.3d 651, 657 (2d Cir. 1995) (“Mizrachi agreed to make full restitution in a written plea agreement. See 18 U.S.C. § 3663(a)(3) (authorizing court to order restitution ‘to the extent agreed to by the parties in a plea agreement’). The Court did not abuse its discretion in ordering Mizrachi to make full restitution.”); Pabst v. United States, No.-cr-269, 2014 WL 6896005, at *6 (S.D.N.Y. Dec. 5, 2014) (“Although Pabst pled guilty to counts involving only one victim and three tax returns, the record demonstrates that he understood and agreed to a restitution amount that encompassed all of his client victims. Courts are authorized, by statute, to enter an order of restitution that the parties have agreed to.”); United States v. Weiss, No. 92-cr-890, 1994 WL 661110, at *2 (S.D.N.Y. Nov. 22, 1994) (“It follows that, when the district court is measuring restitution by loss as contemplated by § 3663(a)(2), reconsideration on remand of the amount of the loss may well lead to reconsideration of restitution․ But the case at bar implicates § 3663(a)(3), which explicitly authorizes the district court to order restitution ‘to the extent agreed to by the parties in a plea agreement.’ ”).

Further, the Defendant's “information and belief” standing alone is insufficient to warrant a departure from the amount he agreed to in his plea agreement. United States v. Uppal, 797 F. App'x at 21 (“Given his failure to provide any support for his objection to the figure provided to the court by the IRS, we see no error in the district court's reliance on that figure to determine the amount of his tax liability, which is the amount of restitution to which he consented in the plea agreement.”)

Therefore, the Court finds that the Defendant failed to establish that the Restitution Order was unlawful.

b. As to Whether the Restitution Order Improperly Held the Defendant Joint and Severally Liable.

The Defendant argues that the Restitution Order improperly held him joint and severally liable for Aronson's conduct in violation of two Supreme Court cases, Honeycutt v. United States, 137 S.Ct. 1626, 198 L. Ed. 2d 73 (2017) and Paroline v. United States, 572 U.S. 434, 134 S.Ct. 1710, 188 L. Ed. 2d 714 (2014). Neither case applies to the Defendant's circumstances.

The Second Circuit has held, pursuant to 18 U.S.C. § 3664(h), “[i]f the court finds that more than [one] defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim's loss and economic circumstances of each defendant.” United States v. Smith, 513 F. App'x 43, 45 (2d Cir. 2013).

Here, the $456,000 underlying the restitution award represents the amount of money in the Defendant's escrow account that, in his own words, he “was allowing Aronson to utilize ․ as a conduit for his actions.” ECF 337 at 4. Even if the Defendant only personally received $30,000 from that amount, his “taking in and shielding funds in his attorney escrow account at a time when he should have known that Aronson's company was committing a fraud” proximately caused victims the loss of the funds deposited therein. ECF 329 ¶ 8; see also Smith, 513 F. App'x at 45 (“[T]he record demonstrates that ․ Smith was aware that her coconspirator also was stealing credit card information, making it reasonably foreseeable that the conspiracy would cause substantial losses to card holders. Accordingly, we conclude that the district court did not err in holding Smith responsible for losses resulting from the actions of her coconspirators in furtherance of the conspiracy.”); United States v. Gioeli, No. 08-cr-240, 2019 WL 6173421, at *7 (E.D.N.Y. Nov. 20, 2019) (tying restitution amount to the “approximate losses ․ caused by” the defendant, the reasonably foreseeable acts of his co-conspirators, or by acts engaged in furtherance of the scheme, conspiracy, or pattern that was an element of the offense of conviction).

In Honeycutt, the Supreme Court held that 21 U.S.C. § 853(a)(1), which mandates forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of” certain drug crimes, does not permit the application of joint and several liability to forfeiture. However, courts have declined to extend Honeycutt to § 3664(h), the statutory provision governing the Restitution Order. See Gioeli, 2019 WL 6173421, at *6 (“Although defendant asks the Court to extend Honeycutt’s holding to the Mandatory Victims Restitution Act (‘MVRA’), 18 U.S.C. § 3663(A), because the texts, statutory schemes, and rationales of the forfeiture and restitution statutes are quite distinct, the Court declines to do so.”); Pierce v. United States, No. 12-cr-0340, 2018 WL 4179055, at *8 (S.D.N.Y. Aug. 31, 2018) (“As a threshold matter, Honeycutt exclusively discusses the subject of forfeiture, and does nothing to aid Pierce's challenge to her restitution obligation.” (emphasis in original)).

In Paroline, the Supreme Court held that 18 U.S.C. § 2259, a component of the Violence Against Women Act that permitted district courts to award restitution for child pornography possession, required the establishment of a causal relationship between the defendant's conduct and the victim's losses for the purposes of determining the right to, and amount of restitution. Paroline, 572 U.S. at 463, 134 S.Ct. 1710. As part of its reasoning, the Supreme Court held that:

It is well recognized that district courts by necessity “exercise ․ discretion in fashioning a restitution order.” § 3664(a). Indeed, a district court is expressly authorized to conduct a similar inquiry where multiple defendants who have “contributed to the loss of a victim” appear before it. § 3664(h). In that case it may “apportion liability among the defendants to reflect the level of contribution to the victim's loss ․ of each defendant.” Ibid.

Id. at 459, 134 S.Ct. 1710. Contrary to the Defendant's assertion, this language merely confirms the Court's award of joint and several liability. It illustrates that the Court may apportion damages under § 3664(h), but is not required to, because that choice rests in the Court's discretion.

Therefore, the Court finds that the Defendant failed to establish that the Court erred by finding him jointly and severally liable.

c. As to Whether the Defendant Suffered Ineffective Assistance of Counsel.

“To evaluate a claim that a guilty plea was involuntary or unknowing due to ineffective assistance of counsel, [courts] use the familiar framework established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001). A defendant must first establish that “counsel's representation fell below an objective standard of reasonableness.” Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Second, the defendant must show that “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 104 S.Ct. 2052.

“The performance inquiry is contextual; it asks whether defense counsel's actions were objectively reasonable considering all the circumstances․ These standards provide at least two benchmarks for the representation of a client who is deciding whether to accept a plea offer.” Purdy v. United States, 208 F.3d 41, 44 (2d Cir. 2000). On the one hand, defense counsel “must give the client the benefit of counsel's professional advice on this crucial decision” of whether to plead guilty. Boria v. Keane, 99 F.3d 492, 497 (2d Cir. 1996); see also Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999) (“Boria recognizes a lawyer's general duty to advise a defendant concerning acceptance of a plea bargain). As part of this advice, counsel must communicate to the defendant the terms of the plea offer, see Cullen, 194 F.3d at 404, 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, see United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998) (“[K]nowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty.”).

“On the other hand, the ultimate decision whether to plead guilty must be made by the defendant.” Purdy, 208 F.3d at 45. A lawyer must take care not to coerce a client into either accepting or rejecting a plea offer. See id. (quoting Jones v. Murray, 947 F.2d 1106, 1111 (4th Cir. 1991) (“[V]arious [ABA] Standards place[ ] upon counsel an affirmative duty to avoid exerting ‘undue influence on the accused's decision’ and to ‘ensure that the decision ․ is ultimately made by the defendant.’ ”)).

Counsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness because “[r]epresentation is an art,” Strickland, 466 U.S. at 693, 104 S.Ct. 2052, and “[t]here are countless ways to provide effective assistance in any given case,” id. at 689, 104 S.Ct. 2052. “Counsel rendering advice in this critical area may take into account, among other factors, the defendant's chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether the defendant has maintained his innocence, and the defendant's comprehension of the various factors that will inform his plea decision.” Purdy, 208 F.3d at 45.

Here, the Defendant argues that his counsel erred by encouraging him to take the plea deal offered by the Government, because it set the amount of restitution at $456,000. According to the Defendant, this amount was substantially more than he should have paid. Further, the Defendant claims that his attorney failed to advise him of his right to have the restitution apportioned between himself and Aronson, pursuant to 18 U.S.C. § 3664(h). In the Court's view, these facts do not demonstrate ineffective assistance of counsel.

As an initial matter, the Court notes that the Defendant does not argue, nor can he argue, that he was not actually aware of the amount of restitution the plea agreement required him to pay. The plea agreement itself, which he stated on the record that he read and went over with counsel, provided for $456,000 in restitution. He further reiterated his awareness of this obligation at the guilty plea hearing and during his sentencing. Thus, this is not a situation where counsel failed to fully apprise the Defendant of the consequences of his plea agreement. Rather, the Defendant simply dislikes the amount of restitution he agreed to pay. That is not a valid basis for voiding his knowing and voluntary guilty plea. See Thomas v. United States, No. 02-cv-6254, 2005 WL 2104998, at *4 (S.D.N.Y. Sept. 1, 2005) (“Here, because Thomas’ guilty plea was voluntary, this Court finds that Thomas has failed to show prejudice in his appellate counsel's failure to appeal the restitution issue.”).

Further, the Defendant has not established that his counsel's recommendation that he agree to a plea deal with a restitution amount of $456,000 was unreasonable, or that he was prejudiced by that recommendation. The premise of his argument is that he possessed a right to have the restitution award apportioned between him and Aronson. Although § 3664(h) permits the apportionment of restitution between defendants based on the degree of culpability, whether or not to do so is wholly within the Court's discretion. See Smith, 513 F. App'x at 45. Thus, there was no guarantee that rejecting the proposed plea deal would have resulted in a lower restitution award. As the Court already explained, the facts here fully justified joint and several liability, see supra II.B.3.b, and there is no indication that the Government would have agreed to a plea deal with a lower restitution amount.

The Plaintiff cannot establish an entitlement to relief based purely on speculation that he could have obtained a more favorable plea agreement. See Anthoulis v. New York, 586 Fed. App'x 790, 792 (2d Cir. 2014) (courts will not entertain an ineffective assistance of counsel claim based on a plaintiff's “mere speculation about how plea negotiations would have proceeded”); United States v. D'Souza, No. 16-cr-253, 2019 WL 652599, at *3 (S.D.N.Y. Feb. 15, 2019) (rejecting ineffective assistance of plea counsel claim because petitioner failed to “provide any evidence (or argument) that the government would have agreed to an alternative plea deal, either with a lower guidelines range or a lower amount of restitution due.”); Suarez v. United States, No. 13-cv-298, 2016 WL 3432464, at *5 (S.D.N.Y. June 16, 2016) (“[T]he failure of a lawyer to obtain a favorable plea bargain is not ineffective assistance of counsel ‘where there is no evidence such a plea deal would have been offered.”) (quoting Burger v. Kemp, 483 U.S. 776, 785–86 (1987)).

Consequently, the Court cannot say either that defense counsel erred by advising the Defendant to accept the plea offer or that there is a reasonable probability the Defendant would have gone to trial if he became aware of the Court's discretion to apportion restitution under § 3664(h). See Mansour v. United States, No. 11-cr-612, 2015 WL 1573327, at *6 (S.D.N.Y. Apr. 9, 2015) (“[W]e cannot credit Mansour's argument that he would have elected a trial but for his attorney's supposed omissions. Mansour had ample opportunities to back away from his plea agreement. Mansour's decision to enter a plea despite these warnings demonstrates that the prospect of a large restitution order was not enough to dissuade Mansour from pleading.”).

Therefore, the Court finds that the Defendant failed to establish that his plea agreement was the product of a violation of his Sixth Amendment right to effective assistance of counsel.

d. As to Whether the Government Improperly Modified the Restitution Order.

The Restitution Order stated that the Defendant must pay restitution “at a rate of 10% of his gross monthly income until the full amount is paid even after his term of supervised release has terminated. Payments shall commence thirty (30) days after his release from imprisonment.” The Defendant argues that the Government illegally modified this order without approval of the Court. The Court disagrees.

First, the Defendant claims that the Bureau of Prisons (“BOP”) coerced the Plaintiff into paying $25.00 per month of restitution during his incarceration by threatening certain unidentified “consequences” It is undisputed that these payments were made pursuant to a voluntary BOP program. See 28 C.F.R. §§ 545.10–545.11. The Defendants complaints relate to the implementation of that program, and the conditions of his incarceration, not the Restitution Order. He has failed to articulate a reason why those complaints would justify vacating his conviction or reduction of the restitution award.

Second, the Defendant claims that the Government unilaterally changed the rate of restitution payments from 10% of his gross monthly income to $500.00 per month. The Plaintiff bases this argument on an April 18, 2019 letter from the Government, stating: “[t]his office has determined you are required to make monthly payments in the amount of $500.00․ [.]” ECF 336-7. The Government has averred that it reached this calculation based on financial statements and supporting documents submitted to the Government in September 2018. After the Defendant sent a letter on July 8, 2019 stating that he could not make the payments due to his financial condition, ECF 336-8, the Government modified his payment plan to require payments of $350 per month. ECF 336-9. Not only is it apparent that the Government has adjusted the payment plan to maintain monthly payments at a rate of 10% of his income, but the Defendant has again failed to provide any reason why his complaints in this regard would justify vacating his conviction or reduction of the restitution award.

Therefore, the Defendant has failed to establish an entitlement to relief on the basis of the Government's alleged violation of the Restitution Order.

III. CONCLUSION

For the foregoing reasons, the Court denies the Defendant's petition for a writ of coram nobis vacating his conviction in its entirety.

It is SO ORDERED:

ARTHUR D. SPATT United States District Judge