USA v. Christina Lynn Catalano

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10759
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTINA LYNN CATALANO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:20-cr-00040-JA-PRL-1
____________________
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2 Opinion of the Court 21-10759
Before J ORDAN, NEWSOM , and TJOFLAT, Circuit Judges.
PER CURIAM:
In the District Court, Christina Catalano pled guilty to vio-
lating 18 U.S.C. § 1040 (disaster assistance fraud), Count 1, and 18
U.S.C. § 1001(a)(2) (making false statements to a federal agency),
Count 2, and was sentenced to prison for a total of 30 months. The
Count 1 offense occurred when Catalano obtained disaster relief
from the Federal Emergency Management Agency (“FEMA”)
based on fraudulent claims that Hurricane Irma, which hit Florida
in 2017, destroyed much of her property. The Count 2 offense oc-
curred when she made false statements to FEMA agents about the
extent of her loss. Catalano entered both guilty pleas without a
plea agreement.
Catalano does not appeal her convictions and sentence on
the ground that the District Court erred in accepting her guilty
pleas or imposing her sentence. Instead, transforming her appeal
into a motion for collateral relief under 28 U.S.C. § 2255, she asks
us to set aside her guilty pleas and remand the case for further pro-
ceedings because her court appointed attorney rendered ineffective
assistance of counsel under
Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984),1 in advising her not to accept the
1 In her opening brief in this appeal, Catalano states that the District Court
had jurisdiction of this case pursuant to the power to grant writs statute, 28
U.S.C. § 2241. Appellant’s Br. at 1. Her brief states that this Court has
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21-10759 Opinion of the Court 3
Government’s earlier offer to plead guilty to Count 1 in exchange
for the dismissal of Count 2.2 Had she accepted the Government’s
offer, the Sentencing Guidelines would have called for a sentence
of 27 to 33 months imprisonment based on an offense level of 11
(calculated under U.S.S.G. § 2B1.1
et seq.) and a criminal history
category of VI. Because she plead guilty to Counts 1 and 2, the
sentencing range the District Court adopted (as recommended by
its probation office) called for a term of 33 to 41 months imprison-
ment based on an offense level of 13 and a criminal history category
of VI. The offense level was 13 instead of 11 because the Court
adjusted the offense level on Count 1 by 2 levels pursuant to
U.S.S.G. § 3C1.1 for obstruction of justice, i.e.
, the conduct charged
in Count 2. Absent the guilty plea to Count 2, Catalano contends,
the Court would not have applied the § 3C1.1 adjustment because
jurisdiction under 28 U.S.C. § 1291, which gives the courts of appeal jurisdic-
tion to review final decisions of the district courts. The Government’s brief
disagrees with Catalano about the District Court’s jurisdiction. Its brief states
that the District Court had jurisdiction under 18 U.S.C. § 3231, which gives
district court’s jurisdiction to try offenses against the United States, and that
this Court has jurisdiction to entertain this appeal under 28 U.S.C. § 1291 (re-
view of final judgment) and 18 U.S.C. § 3742(a) (review of sentence). Appel-
lee’s Br. at v. The Government’s brief has it right on the issues of jurisdiction.
2 Catalano’s attorney apparently made a strategic decision in advising Cata-
lano to plead guilty to both counts in that Catalano would retain the right to
appeal her sentences. The Government conditioned its plea offer on Cata-
lano’s waiver of the right to appeal the sentence imposed on Count 1 based on
the Court’s misapplication of the Sentencing Guidelines.
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4 Opinion of the Court 21-10759
her false statement to the FEMA agents would not have signifi-
cantly impeded or obstructed the official investigation.
As it turned out, the Court imposed a sentence, 30 months,
within the 27 to 33 months sentencing range Catalano desired and
thus varied downwards from the 33 to 41 months sentencing range
the Court calculated. At sentencing, Catalano’s attorney informed
the Court thus: “And I've told Ms. Catalano that if the Court does
go to the 33- to 41-month range, then she ought to file a 2255
against me for my ineffective assistance.” Instead of filing the §
2255 motion in the District Court, Catalano brings the motion
here. As we have explained many times before, “[w]e will not gen-
erally consider claims of ineffective assistance of counsel raised on
direct appeal where the district court did not entertain the claim
nor develop a factual record.”
United States v. Bender, 290 F.3d
1279, 1284 (11th Cir. 2002). While we have recognized a narrow
exception to this general rule when the record about the ineffective
assistance of counsel claim is “sufficiently developed,”
id., the rec-
ord here about Catalano’s ineffective assistance of counsel claim is
practically nonexistent. Catalano’s brief presents no argument of
sentencing error, so to the extent we consider this appeal as chal-
lenging the 30 months term of imprisonment, the appeal is merit-
less.
AFFIRMED.3
3 We affirm without prejudice to Catalano’s right to move the District Court
for relief under 28 U.S.C. § 2255.
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