United States District Court, D. Maryland
CHUNG K. CHOI, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
January 30, 2018, this Court entered an Order (ECF No. 48)
denying Petitioner Chung K. Choi's
("Petitioner" or "Choi") Motion to
Vacate, Set Aside, or Correct Sentence pursuant to. 28 U.S.C.
§ 2255 (ECF No. 28). Before this Court is Choi's
Motion for Reconsideration pursuant to Maryland Local Rule
105.10 and Rule 59(e) of the Federal Rules of Civil
Procedure. (ECF No. 49.) Choi's submission has been
reviewed, and no hearing is necessary. See Local
Rule 105.6 (D. Md. 2016). For trie reasons stated herein,
Petitioner's Motion to Reconsider (ECF No. 49) is DENIED.
background facts of this action were fully set forth in this
Court's Memorandum Opinion of January 30, 2018. (ECF No.
47.) To summarize, on March 30, 2012, Petitioner Choi pled
guilty in this Court to one count of tax evasion in violation
of 26 U.S.C. § 7201. (ECF Nos. 3, 5, 6.) In his plea
agreement, he agreed that the corporate tax returns that he
filed for his business, Frankford Garden Liquors, for the
years 2006 through 2009 "each understate the amount of
the corporation's taxable gross receipts by more than
$300, 000." (ECF No. 5 at 4.) Further, he acknowledged
that he understated his corporation's income to evade
paying taxes. (Id.) The plea agreement, however, did
not state an agreed amount of taxes due and owing as a result
of Choi's underreporting. (Id. at 5.) Rather,
the plea agreement laid out the Internal Revenue
Service's (IRS) calculation of the taxes due and owing
for the years 2006 through 2009. (Id.) By the time
of Choi's sentencing, however, both parties told this
Court that they agreed to the IRS's calculation of tax
loss and the imposition of a restitution order in the amount
of $739, 253.98, representing the taxes he owed for the years
2006 through 2009. (ECF No. 19.) This Court subsequently
sentenced Choi to eighteen months incarceration, six months
home detention, and three years supervised release. (ECF No.
15.) Additionally, this Court ordered a payment of $100.00 in
special assessment, a $20, 000.00 fine, and $739, 253.98 in
his sentencing, Choi challenged the amount of taxes owed by
his company in a civil action with the IRS Office of Appeals.
(ECF No. 28-1.) In December of 2013, Petitioner was released
from prison after serving his eighteen month term. (ECF Nos.
24, 25.) Around January of 2016, Choi negotiated a settlement
through the IRS Office of Appeals for total amount of $132,
991.00. (ECF No. 28-1 at 6.)
December 9, 2016, Choi filed the pending Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255, claiming that he received ineffective assistance of
counsel in violation of his rights under the Sixth Amendment
to the United States Constitution. (ECF No. 28.)
Specifically, Choi asserted that his counsel should have
proven that the total tax loss was $178, 991.49 instead of
$739, 253.98, which, Choi asserted, would have resulted in a
lower restitution payment consistent with the actual
individual tax loss. (ECF 28-1 at 8.) On January 30, 2018
this Court issued a Memorandum Opinion and Order denying
Choi's Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 (ECF No. 28).
Federal Rules of Civil Procedure do not expressly recognize
motions for "reconsideration." Instead, Rule 59(e)
authorizes a district court to alter, amend, or vacate a
prior judgment, and Rule 60 provides for relief from judgment
See Katyle v. Venn Nat'l Gaming, Inc., 637 F.3d
462, 470 n.4 (4th Cir. 2011), cert, denied, 132
S.Ct. 115 (2011). Rule 59(e) applies only to final judgments.
See Fayettevilk Investors v. Commercial Builders,
Inc., 936 F.2d 1462, 1469 (4th Cir. 1991). As this Court
explained in Cross v. Fleet Reserve Ass'n
Pension Plan, Civ. No. WDQ-05-0001, 2010 WL
3609530, at *2 (D. Md. Sept. 14, 2010):
A party may move to alter or amend a judgment under Rule
59(e), or for relief from a judgment under Rule 60(b).
See Fed. R. Civ. P. 59(e) & 60(b). A motion to
alter or amend filed within 28 days of the judgment is
analyzed under Rule 59(e); if the motion is filed later, Rule
60(b) controls. See Fed. R. . Civ. P. 59(e); MLC
Auto., LLC v. Town of S. Pines, 532 F.3d 269, 280 (4th
Cir. 2008); In re Burnley, 988 F.2d 1, 2-3 (4th Cir.
United States Court of Appeals for the Fourth Circuit has
repeatedly recognized that a final judgment may be amended
under Rule 59(e) in only three circumstances: (1) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to
correct a clear error of law or prevent manifest injustice.
See, e.g., Gagliano v. Reliance Standard Life
Ins. Co., 547 F.3d 230, 241 n.8 (4th Cir. 2008). Such
motions do not authorize a "game of hopscotch, " in
which parties switch from one legal theory to another
"like a bee in search of honey." Cochran v.
Quest Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003). In
other words, a Rule 59(e) motion "may not be used to
relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to entry of
judgment.", Pac. Ins. Co. v. Am. Nat'lFire Ins.
Co., 148 F.3d 396, 403 (4th Or. 1998) (quoting 11
Wright, et al, Federal Practice and Procedure §
2810.1, at 127-28 (2d ed. 1995)).- Where a party presents
newly discovered evidence in support of its Rule 59(e)
motion, it "must produce a legitimate justification for
not presenting the evidence during the earlier
proceeding." Id. (internal citations and
quotation marks omitted). Where a party seeks reconsideration
on the basis of manifest error, the earlier decision cannot
be '"just maybe or probably wrong; it must ...
strike us as wrong with the force of a five-week old,
unrefrigerated dead fish." TFWS, Inc. v.
Franchot, 572 F.3d 186, 194 (4th Cir. 2009) (quoting
Bellsouth Telesensor v. Info. Sjs. & Networks
Corp., Nos. 92-2355, 92-2437, 1995 WL 520978 at *5 n.6
(4th Cir. Sept. 5, 1995)). "In general, reconsideration
of a judgment after its entry is an extraordinary remedy
which should be used sparingly." Id. (internal
citations and quotation marks omitted).
Memorandum Opinion on January 30, 2018, this Court found
Petitioner's challenge to a restitution order via a
Motion to Vacate pursuant to 28 U.S.C. § 2255 (ECF No.
28) to be improper. (ECF No. 47.) Additionally, this Court
found that even if his § 2255 was proper, Choi's
claim did not meet the standard for a viable ineffective
assistance of counsel claim. Id. In reaching this
determination, this Court relied on United States v.
Hudgins, No. 06-6048, 2006 WL 2794412 (4th Cir. Sept.
25, 2006) and United States v. Fabian 798 F.Supp.2d
647, 684 (D. Md. 2011). In Hudgins, the Fourth
Circuit explained that "a § 2255 motion may not be
used for the sole purpose of challenging fines or restitution
orders." 2006 WL 2794412 at *1. Fabian
similarly explained that "28 U.S.C. § 2255 only
entitles prisoners to attack a custodial component of a
sentence . . . restitution orders cannot be attacked mrough a
§ 2255 petition, including those filed when the
defendant is incarcerated." 798 F.3d at 684. Following
this logic, this Court found Choi's challenge to his
restitution order improper in a § 2255 Motion to Vacate.
(ECF No. 28.)
Rule 59(e) Motion for Reconsideration, Choi does not allege
that there has been an intervening change in controlling law
or that new evidence has come to light. (ECF No. 49.)
Instead, Choi alleges that this Court erred in its decision
because (1) the Fourth Circuit has not established binding
precedent precluding a petitioner in custody from challenging
a restitution order in a § ...