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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

v. 

D-8, JOSEPH ARSENAULT, 

 Defendant. 

 / 

Case No. 2:14-cr-20599 

Related Case No. 2:18-cv-10019 

HON. STEPHEN J. MURPHY, III 

OPINION AND ORDER DENYING 

AMENDED MOTION TO VACATE SENTENCE [547], [554] 

 In March 2016, Defendant Joseph Arsenault pleaded guilty to conspiracy to 

commit wire and mail fraud in violation of 18 U.S.C. § 1349. ECF 276. The Court then 

imposed a guideline sentence of 121 months' imprisonment. ECF 544. On January 2, 

2018, Defendant filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, ECF 

547, and, on January 18, 2018, an amended motion, ECF 554. On June 4, 2018, the 

Government filed its response brief, opposing Defendant's motion to vacate sentence. 

ECF 583. After reviewing the briefs, the Court finds that a hearing is unnecessary. For 

the reasons below, the Court will deny Arsenault's motion. 

BACKGROUND 

 Defendant was arraigned in Detroit on April 15, 2015, on an indictment charging 

him with conspiracy to commit mail and wire fraud and wire fraud. ECF 583, PgID 3149. 

John Freeman represented Defendant until August 12, 2015, when Dennis Johnston 

replaced Freeman. ECF 177. On March 23, 2016, Defendant pleaded guilty to conspiracy 

to commit mail and wire fraud, in violation of 18 U.S.C. § 1349, pursuant to a plea 

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agreement. ECF 276; see ECF 514. The plea agreement contained an agreed guideline 

range of 97 to 121 months' imprisonment. Id. at 1278–79, 1297. The plea agreement 

contained a provision for the government to make a nonbinding recommendation to the 

Court for a sentence within that range. Id. at 1280. The agreement's worksheets stated 

that Defendant had a total offense level of 30, including a two-level increase for an offense 

involving sophisticated means under U.S.S.G. § 2B1.1(b)(10) and a criminal history 

category of I. Id. at 1296–97. 

 The plea agreement also contained a cooperation provision. Id. at 1287–91. The 

cooperation provision obligated Defendant to cooperate actively, in good faith, id. at 1288, 

and to provide truthful and complete information, including by volunteering all information 

reasonably related to the subjects discussed in the debriefing, id. at 1288–89. The plea 

agreement then stated that the Government had exclusive discretion to determine 

whether Defendant provided substantial assistance. Id. at 1290. The Government agreed 

that, if Defendant's cooperation amounted to substantial assistance, it would recommend 

a downward departure at sentencing under U.S.S.G. § 5K1.1, or a reduction of sentence 

pursuant to Fed. R. Crim P. 35, as appropriate. Id. at 1290–91. 

Mr. Johnston and Defendant both signed the plea agreement, which 

acknowledged Defendant's understanding its terms. Id. at 1295. By signing, Defendant 

also affirmed that he was satisfied with his attorney's advice and representation and that 

he had the full opportunity to confer with his lawyer. Id. And by signing the plea 

agreement, Defendant waived his appellate rights. Id. at 1292. 

 At his March 23, 2016 guilty plea, under oath, Defendant stated that he reviewed 

the plea agreement with Mr. Johnston and understood its contents. ECF 514, PgID 2710, 

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2715–16. He also stated that he agreed with the discussion between Mr. Johnston and 

Assistant United States Attorney Craig Weier. Id. The Court then explained that it would 

determine the sentence at a separate point after Defendant accepted the plea, which 

Defendant stated he understood. Id. at 2716–17. 

 The Court accepted Defendant's guilty plea and set sentencing first for July 22, 

2016, later resetting it for September 9, 2016. See ECF 272, 338. 

 On August 19, 2016, Defendant retained Sanford Plotkin. ECF 365. Mr. Johnston 

remained on the case. The Presentence Report was completed on June 10, 2016, and 

Mr. Johnston timely filed two objections for Defendant. See ECF 583, PgID 3153. The 

Government and Defendant filed a series of sentencing memoranda. ECF 469 (under 

seal), 477 (under seal), 480 (under seal).1 Both Defendant's Sentencing Memorandum, 

ECF 477 (under seal), and Defendant's Reply to Government's Supplemental Sentencing 

Memorandum, ECF 480 (under seal), were signed by Mr. Johnston and Mr. Plotkin. 

 On April 25, 2017, Defendant sent an email directly to the Court, which the Court 

construed as a Motion for Withdrawal of Attorney. ECF 485. The email stated that 

Defendant had problems with his legal team and attempted to present factual allegations. 

Id. The Court set a hearing for May 16, 2017, when Mr. Plotkin appeared for himself and 

co-counsel and explained that there had been an irreconcilable breakdown in the 

attorney-client relationship. See ECF 487. On May 16, 2017, the Court granted the motion 

for both Mr. Johnston and Mr. Plotkin to withdraw. ECF 489. The Court then appointed 

Federal Defender Arthur Weiss to represent Defendant. ECF 490. 

 

1 Both Plaintiff's Supplemental Sentencing Memorandum and Defendant's Reply to that 

Supplemental Sentencing Memorandum are designated as docket entry number 480 on 

ECF. 

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 Mr. Weiss filed Defendant's Supplemental Sentencing Memorandum on November 

29, 2017. ECF 528 (under seal). The memorandum was thirteen-pages long with 

approximately fifty pages of exhibits and advocated for a downward departure in 

sentencing. Id. (under seal). The memorandum emphasized personal factors, such as 

Defendant's age, health issues, substance abuse issues, and role in the offense. Id. at 

2763–68. It referred the Court to literature suggesting that the risk of recidivism is lower 

for individuals of advanced age. Id. at 2764. 

 The Court held a sentencing hearing on December 7, 2017. The Court granted 

both objections made by Defendant's counsel regarding the presentence report, namely, 

narrowing the time frame when Defendant participated in the scheme, ECF 565, PgID 

3028–30, and diminishing the amount of money that Defendant made from the scheme, 

id. at 3030–32. Meanwhile, the Government elected not to recommend downward 

departure under U.S.S.G. § 5K1.1. It had determined that Defendant's purported 

cooperation did not amount to substantial assistance in the investigation or prosecution 

of others; indeed, the Government believed that Defendant was untruthful about the 

nature and effect of his cooperation. ECF 480, PgID 2555–61 (under seal); ECF 583, 

PgID 3156. And the Court sentenced Defendant to 121 months' imprisonment. 

 Defendant filed, pro se, his motion to vacate sentence, ECF 547, and a 

memorandum in support of the motion to vacate sentence, ECF 554. Defendant 

challenges only the length of his custodial sentence. Id. at 2913, 2916–17. He seeks to 

be resentenced without the sophisticated means enhancement and with the downward 

departure he expected (had Plaintiff made a U.S.S.G. § 5K1.1 recommendation). Id. He 

also objects to his sentence based on how it compares to those of his co-defendants. Id. 

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As grounds for resentencing, Defendant argues that his prior attorneys rendered 

ineffective assistance of counsel. First, he asserts that his attorneys did not sufficiently 

argue against the sophisticated means enhancement. Id. at 2915. Second, he avers that 

his attorneys failed to demand an evidentiary hearing on his purported cooperation with 

the Government—he believes he was entitled to § 5K1.1 credit for his cooperation. Id. at 

2914, 2917. He lodges several more complaints about the quality of his representation: 

the attorneys did not release certain funds that "the Government accused him of hiding", 

id. at 2915; the attorneys did not call a character witness that Defendant requested for his 

sentencing hearing, id.; they somehow prevented him from participating in his defense 

case, id. at 2915–16; and they did not ensure that he received the same sentence as codefendants, id. at 2916. 

DISCUSSION 

 The burden for establishing entitlement to an evidentiary hearing is relatively light 

on a motion to vacate sentence. Martin v. United States, 889 F.3d 827, 832 (6th Cir. 2018) 

(citing Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). But a district court can 

forego an evidentiary hearing when the petitioner's allegations cannot be accepted as 

true because they are contradicted by the record, inherently incredible, or conclusions 

rather than statements of facts. 28 U.S.C. § 2255(b); MacLloyd v. United States, 684 F. 

App'x 555, 559 (6th Cir. 2017) (quoting Arredondo v. United States, 178 F.3d 778, 782 

(6th Cir. 1999)). Here, Defendant's allegations of ineffective assistance of counsel are 

contradicted by the record, so no evidentiary hearing is necessary. 

 To succeed, a petitioner's ineffective assistance of counsel claims must satisfy 

both prongs of the performance and prejudice test in Strickland v. Washington, 466 U.S. 

668 (1984). First, a defendant must show that his attorney's representation fell below an 

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objective standard of reasonableness. Id. at 688. There is a strong presumption that 

counsel's behavior lies within a broad range of reasonable professional assistance. Id. at 

689. Second, he must show that he was prejudiced by his attorney's deficient 

performance, such that the counsel's conduct undermined the proper functioning of the 

adversarial process. Id. at 686. If the defendant makes an insufficient showing on even 

one of these prongs, his ineffective assistance of counsel claim must fail. Id. at 697. 

 Here, Defendant's ineffective assistance of counsel claims do not satisfy the 

Strickland test. Indeed, his allegations are contradicted by the record, which show that 

Messrs. Johnston, Plotkin, and Weiss each performed objectively reasonably. 

 First, Defendant's allegations that his attorneys insufficiently argued against the 

sophisticated means enhancement are unfounded. Defendant himself agreed to the 

enhancement. It was incorporated into the offense level and guidelines range portion of 

his plea agreement. ECF 276, PgID 1296–97. Defendant affirmed that he understood and 

agreed to the terms of the plea agreement both by signing the agreement and by saying 

so in court while pleading guilty. Id. at 1295; ECF 514, PgID 2710, 2715–16. And 

Defendant's Sentencing Memorandum, filed by Mr. Plotkin, argued that the sophisticated 

means enhancement overrepresented the extent of Defendant's culpability in the 

scheme. ECF 477, PgID 2524–25 (under seal). 

 Further, his attorneys did not fail to sufficiently argue for credit for cooperation. 

Again, the plea agreement sets forth the terms of the Government's offer to recommend 

a downward departure under U.S.S.G. § 5K1.1 in exchange for cooperation. ECF 276, 

PgID 1287–91. The terms make clear that the recommendation is available only if the 

Government determines that Defendant's cooperation constitutes substantial assistance. 

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Id. at 1290–91. Defendant accepted the terms. The Government ultimately determined 

that Defendant's purported cooperation did not amount to substantial assistance for a 

variety of reasons, including what it believed was Defendant's untruthfulness. ECF 480, 

PgID 2555–61 (under seal); ECF 583, PgID 3156. But even in light of the Government's 

determination, Messrs. Johnston and Plotkin continued to argue in favor of a downward 

variance for Defendant. ECF 477, PgID 2527–33 (under seal); ECF 480 (under seal). 

Defendant's counsel repeatedly argued to mitigate Defendant's sentence, even in the 

face of the constraints from the plea agreement. Defendant's counsel provided objectively 

reasonable representation. 

In his motion, Defendant protests his attorneys' failure to release certain funds that 

the Government allegedly accused him of hiding. It is not clear that the attorneys actually 

had the ability to do so. Even so, Mr. Weiss repeatedly advised Defendant of his 

responsibility to provide complete and accurate disclosures to the Government. See ECF 

554, PgID 2933–34. Mr. Weiss's advice was not objectively unreasonable. 

Further, Defendant's counsel did not fail to provide reasonable representation by 

not calling every single character witness suggested by Defendant. Defendant allegedly 

proposed one character witness to Mr. Weiss, but was unable to support his suggestion 

when Mr. Weiss asked to see the letter purportedly written by the witness. See ECF 554, 

PgID 2943. It is not objectively unreasonable for an attorney to decide not to call a 

character witness, especially when the attorney cannot confirm important details about 

the witness. 

And Defendant was not prevented from participating in his own defense at all. He 

participated actively, communicating regularly with counsel. See ECF 554, PgID 2925–

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61. Moreover, Defendant's attorneys incorporated Defendant's interests in their 

representation of him. Defendant's attorneys vigorously argued, on several occasions, for 

a shorter sentence. And Defendant's attorneys successfully presented to the court their 

objections to the presentence report. See ECF 583, PgID 3153. 

 The record even shows that Messrs. Johnston and Plotkin argued that Defendant's 

guideline range for sentencing should be less than many of his co-defendants. ECF 477, 

PgID 2524–27 (under seal). Defendant's counsel advocated for Defendant's sentence to 

correspond with those of his co-defendants, which is what Defendant wanted. The record 

controverts Defendant's assertions that his attorneys prevented Defendant from 

participating in his own defense or failed to advocate for his sentence to be comparable 

to other defendants. 

 Ultimately, the sentence was at the discretion of the Court. The sentences of other 

defendants with similar records and conduct constituted one of many factors the Court 

considered in determining Defendant's particular sentence. See 18 U.S.C. 3553(a). And 

in the absence of any evidence to the contrary, disparate sentences do not support the 

inference of ineffective assistance. See Harris v. United States, No. 17-3781, 2018 WL 

509717, at *2 (6th Cir. Jan. 4, 2018). 

 Taken as a whole, the record shows that Messrs. Johnston, Plotkin, and Weiss 

repeatedly advocated for a downward departure in sentencing by filing several pages of 

memoranda and appearing in court. They argued vigorously in favor of their client, 

representing Defendant in an objectively reasonable manner. Defendant's ineffective 

assistance of counsel claims fail, and his motion to vacate sentence is denied. 

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ORDER 

WHEREFORE it is hereby ORDERED that Defendant's Motion to Vacate 

Sentence [547] and Amended Motion to Vacate Sentence [554] are DENIED. 

IT IS FURTHER ORDERED that the Clerk of the Court shall CLOSE civil 2:18-cv10019. 

 SO ORDERED. 

s/ Stephen J. Murphy, III 

 STEPHEN J. MURPHY, III 

 United States District Judge 

Dated: September 10, 2018 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on September 10, 2018, by electronic and/or ordinary mail. 

 s/ David Parker 

 Case Manager 

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