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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DINESH SAH,

#08626-509,

§

§ 

 Movant, §

§ No. 3:22-cv-01688-S (BT) 

v. § No. 3:20-cr-00484-S-1 

§

UNITED STATES of AMERICA, §

 Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Movant Dinesh Sah, a federal prisoner, filed a pro se motion to vacate, 

set-aside, or correct his sentence under 28 U.S.C. § 2255. The District Court 

referred the resulting civil action to the United States magistrate judge 

pursuant to 28 U.S.C. § 636(b) and a standing order of reference. For the 

following reasons, the Court should deny Sah’s § 2255 motion. 

Background

In the early days of the COVID-19 pandemic, Sah operated a 

fraudulent scheme to obtain forgivable loans under the Paycheck Protection 

Program (PPP). Sah submitted PPP loan applications to multiple lenders 

under the names of various purported small businesses he owned or 

controlled. He misrepresented the number of employees and the amount of 

payroll expenses these purported businesses had and submitted fraudulent 

documentation in support of his applications, including false federal tax 

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documents and bank statements. Sah received more than $17 million in PPP 

funds and used the money to purchase real property and luxury vehicles. 

A federal grand jury indicted Sah on three counts of wire fraud, three 

counts of bank fraud, and money laundering. He eventually pleaded guilty, 

pursuant to a plea agreement, to a single count of wire fraud, in violation of 

18 U.S.C. § 1343 (count one), and a single count of money laundering, in 

violation of 18 U.S.C. § 1957 (count seven). 

The Presentence Report (PSR) calculated Sah’s base offense level as 7 

and added 20 levels because Sah intended to cause a loss of more than $24 

million (but less than $25 million). The PSR also added 2 levels because 

Sah’s offense involved at least 10 victims, see U.S.S.G. § 2B1.1(a)(2)(A)(i); 2 

levels because Sah used sophisticated means to further his fraudulent 

scheme, § 2B1.1(b)(10)(C); 2 levels because Sah used the means of 

identification of five individuals to further his scheme, see § 

2B1.1(b)(11)(C)(i); 2 levels because Sah’s offense derived more than $1 

million in gross receipts from one or more financial institutions, see § 

2B1.1(b)(17)(a); and one level because Sah was convicted under 18 U.S.C. § 

1957, see § 2S1.1(b)(2)(A). The PSR granted Sah a 3-level reduction for 

accepting responsibility, and calculated his total offense level as 33, which 

resulted in a guideline range of 135 to 168 months’ imprisonment. However, 

Sah’s trial counsel successfully objected to the 2-level increase, U.S.S.G. § 

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2B1.1(b)(17)(a), which resulted in a recalculated guideline range of 108 to 

135 months’ imprisonment. 

Characterizing Sah’s scheme as “extreme and outrageous,” the 

District Court sentenced him to a 135-month term of imprisonment and 

ordered him to pay $17,284,649.79 in restitution. Sah appealed his 

conviction and sentence to the Fifth Circuit Court of Appeals. 

Sah’s appellate attorney moved for leave to withdraw and filed briefs 

in accordance with Anders v. California, 386 U.S. 738 (1967), and United 

States v. Flores, 632 F.3d 229 (5th Cir. 2011). The Fifth Circuit concurred 

with counsel’s assessment that the appeal presented no nonfrivolous issues 

for appellate review and dismissed the appeal. United States v. Sah, 2022 

WL 671459 (5th Cir. Mar. 7, 2022) (per curiam). 

Thereafter, Sah filed a § 2255 motion (CV ECF No. 1)

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 and an amended 

motion (CV ECF No. 4), in which he generally argues: 

• Both his trial attorney and appellate attorney provided 

ineffective assistance of counsel when they failed to object to 

the application of certain enhancements to his offense level 

and failed to raise a vindictive prosecution claim (claims 1 

and 3); 

• The prosecutors engaged in a “vindictive prosecution,” (CV 

ECF No. 4 at 22) (claim 2); and 

1 For purposes of these Findings, Conclusions, and Recommendation, “CR 

ECF” refers to the criminal action, case number 3:20-cr-484-S-1, and “CV 

ECF” refers to this civil action, case number 3:22-cv-1688-S-BT.

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• His due process rights under the Fifth, Sixth, and 

Fourteenth Amendments were violated (claim 4). 

More specifically, Sah argues that his trial attorney provided deficient 

performance by failing to attack the calculation of his advisory guideline 

range and raise his vindictive prosecution claim. Sah argues that his 

appellate attorney should have raised the same and additional challenges on 

direct appeal. The Government responds that any attack on the advisory 

guideline range would have been frivolous and that Sah’s vindictive 

prosecution claim fails on the merits. The Government further contends that 

Sah cannot show that his appellate attorney provided deficient performance 

because Sah waived his right to appeal as part of his plea agreement, and his 

claim that the Government engaged in a vindictive prosecution is waived, 

procedurally barred, and meritless. The Government concludes that Sah’s § 

2255 motion should be denied. Sah filed a reply, and the motion is ripe for 

determination. 

Legal Standards and Analysis

Ineffective Assistance of Counsel

In two claims, Sah argues his trial attorney and appellate attorney 

provided ineffective assistance of counsel when they failed to object to the to 

the application of certain enhancements to his offense level and failed to 

raise a vindictive prosecution claim. Am. Mot. 7, 11, 19-21, 26 (CV ECF No. 

4); see also Reply 2-3 (CV ECF No. 21).

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To prevail on a claim of ineffective assistance of counsel, Sah must 

show: (1) his counsel’s performance was deficient; and (2) the deficient 

performance prejudiced his defense so gravely as to deprive him of a fair 

trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the 

Court stated that “[j]udicial scrutiny of counsel’s performance must be 

highly deferential” and “every effort [must] be made to eliminate the 

distorting effects of hindsight.” 466 U.S. at 689. Courts, therefore, must 

“indulge a strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance.” Id.

Under Strickland, a court's review of counsel’s performance should be 

“highly deferential.” 466 U.S. at 698. This is so because “[i]t is all too 

tempting for a defendant to second-guess counsel’s assistance after 

conviction or adverse sentence[.]” Id. at 689. And “[g]iven the almost 

infinite variety of possible trial techniques and tactics available to counsel, 

this Circuit is careful not to second guess legitimate strategic choices.” Yohey 

v. Collins, 985 F.2d 222, 228 (5th Cir. 1993); see also United States v. Scott, 

11 F.4th 364, 373 (5th Cir. 2021) (recognizing there are “countless ways to 

provide effective assistance in any given case”) (quoting Strickland, 466 U.S. 

at 689).

A defendant also is entitled to effective assistance of counsel on direct 

appeal. See Evitts v. Lucey, 469 U.S. 387, 394 (1985); see also McMann v. 

Richardson, 397 U.S. 759, 771 n.14 (1970) (“It has long been recognized that 

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the right to counsel is the right to the effective assistance of counsel.”). The 

proper standard for evaluating a claim that appellate counsel was ineffective 

is the two-prong standard set forth in Strickland v. Washington. Smith v. 

Robbins, 528 U.S. 259, 285 (2000); Green v. Johnson, 160 F.3d 1029, 1043 

(5th Cir. 1998); see also Blanton v. Quarterman, 543 F.3d 230, 240 (5th Cir. 

2008) (“In reviewing a claim alleging ineffective assistance of appellate 

counsel we apply the traditional Strickland standard[.]”). An appellate 

attorney need not advance every frivolous argument urged by the movant. 

See Williams v. Collins, 16 F.3d 626, 635 (5th Cir. 1994) (a federal habeas 

petitioner’s claim of ineffective assistance by appellate counsel failed to 

satisfy the prejudice prong of Strickland where the omitted grounds for 

relief on appeal were meritless).

Under the prejudice prong of Strickland, appellate counsel, like trial 

counsel, is “presumed to have rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment.” 

Dorsey v. Stephens, 720 F.3d 309, 320 (5th Cir. 2013) (internal quotation 

marks omitted). When an ineffective assistance of appellate counsel claim is 

based on the failure to raise an issue on direct appeal, the prejudice prong 

under Strickland requires the movant to demonstrate the appellate court 

would have granted relief if the issue had been raised. United States v. 

Phillips, 210 F.3d 345, 348 (5th Cir. 2000).

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A. Sah’s claims that his trial attorney provided ineffective assistance of 

counsel fail under Strickland. 

1. The sophisticated-means enhancement under U.S.S.G. § 

2B1.1(b)(10)(C)

The PSR concluded that Sah created and registered several “shell” 

companies, opened bank accounts in the name of those companies, and 

created fictitious documents, such as IRS tax forms and bank statements, 

and the lenders relied upon these fraudulent documents to approve the PPP 

loan applications. (Final PSR ¶ 50); see also (CR ECF No. 57) (adopting the 

Final PSR without change except for sustaining Sah’s objection to the twolevel enhancement under U.S.S.G. § 2B1.1(b)(17)(A)). The PSR further found 

that creating shell companies and/or filing documents that reflect the 

creation of these companies, opening related bank accounts, and creating 

documents that appeared authentic constitutes complex or intricate offense 

conduct related to the execution or concealment of the offense. (Final PSR ¶ 

50.) Thus, the PSR recommended a two-level enhancement under § 

2B1.1(b)(10)(C) was appropriate because Sah’s offense conduct involved 

sophisticated means. (Final PSR ¶ 50.) 

Sah concedes that he submitted fraudulent IRS tax forms and 

“digitally modified” bank statements in furtherance of his fraud, but he 

argues that his conduct fails to warrant an enhancement under U.S.S.G. § 

2B1.1(b)(10)(C). Am. Mot. 19-21 (CV ECF No. 4); see also Reply 6 (CV ECF 

No. 21). He contends that he did not employ “sophisticated” means because 

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he only used “generally available” forms. Am. Mot. 19 (CV ECF No. 4); see 

also Reply 6 (CV ECF No. 21). 

“[T]he Guidelines provide for a two-level increase [under § 

2B1.1(b)(10)(C)] if ‘the offense otherwise involved sophisticated means and 

the defendant intentionally engaged in or caused the conduct constituting 

sophisticated means.’” United States v. Miller, 906 F.3d 373, 380 (5th Cir. 

2018) (quoting U.S.S.G. § 2B1.1(b)(10)(C)). “Sophisticated means” refers to 

an “especially complex or especially intricate offense conduct pertaining to 

the execution or concealment of an offense.” Id. (quoting U.S.S.G. § 

2B1.1(b)(10)(C) cmt. n. 9(B)). In the Fifth Circuit, “[c]onduct such as hiding 

assets or transactions, or both, through the use of fictitious entities, 

corporate shells, or offshore financial accounts [ ] ordinarily indicates 

sophisticated means.” Id. (quoting U.S.S.G. § 2B1.1(b)(10)(C) cmt. n.9(B)). 

The Fifth Circuit has upheld the application of a two-level increase for the 

use of “sophisticated means” where there was a method used that made it 

more difficult for the offense to be detected, even if the method itself was not 

particularly sophisticated. United States v. Valdez, 726 F.3d 684, 695 (5th 

Cir.2013). 

Here, Sah created and registered “shell” entities or companies, opened 

bank accounts in the name of these companies, and created fictitious 

documents that the lenders relied upon to approve the PPP loan 

applications. (Final PSR ¶ 50.) Sah’s offense conduct was much more than 

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the “open and transparent direct deposit and movement of funds,” Valdez, 

726 F.3d at 695. Rather, Sah’s offense conduct is akin to a defendant who 

“attempted to avoid detection and to conceal the fraudulent nature of the 

transactions at issue” and “attempted to legitimize the proceeds distributed 

to him through his company[.]” United States v. Malfitano, 690 F. App’x 

218, 219 (5th Cir.2017) (per curiam); see also United States v. Faulkner, 598 

F. App’x 301 (5th Cir.2015) (per curiam) (affirming the application of an 

enhancement under § 2B1.1(b)(10)(C) where the defendant “created 

fictitious room revenue credits using the house account and issued these 

refunds to her personal accounts”). Thus, the Court properly applied the 

enhancement under § 2B1.1(b)(10)(C), and any objection to the application 

of the sophisticated means enhancement would have been a frivolous 

argument. An attorney’s failure to raise a meritless argument cannot support 

an ineffective assistance of counsel claim. United States v. Kimler, 167 F.3d 

889, 893 (5th Cir. 1999); see also Sones v. Hargett, 61 F.3d 410, 415 n.5 (5th 

Cir. 1995) (counsel cannot be found deficient for failing to press a frivolous 

argument); United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995) (counsel 

is not required to make frivolous arguments). 

For these reasons, Sah has failed to show deficient performance and 

prejudice. His claim fails under both prongs of the Strickland standard, and 

it should be denied. 

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2. Enhancements under U.S.S.G. §§ 2B1.1(a)(2)(A)(i) & (b)(11)(C)(i)

The PSR determined that each of the five lenders who funded the PPP 

loans to Sah was a victim. (Final PSR ¶ 50.) The PSR further found that the 

five individuals whose identifications Sah used to apply for the PPP loans 

were also victims. (Final PSR ¶ 50.) Thus, the PSR concluded that the Court 

should apply a two-level enhancement under § 2B1.1(a)(2)(A)(i) because the 

offense involved ten victims. (Final PSR ¶ 50.) The PSR also found that Sah 

unlawfully used and transferred five individuals’ identification to produce or 

obtain another means of identification, specifically loan numbers applicable 

to each loan. (Final PSR ¶ 50.) The PSR concluded that Sah derived more 

than $1,000,000 in gross receipts from one or more financial institutions, 

which warranted a two-level enhancement under § 2B1.1(b)(11)(C)(i). (Final 

PSR ¶ 50.) Sah does not dispute the facts underlying the two enhancements. 

Rather, he claims that applying §§ 2B1.1(a)(2)(A)(i) and 2B1.1(b)(11)(C)(i) 

amounted to “double counting.” Am. Mot. 21 (CV ECF No. 4). 

Section 2B1.1(a)(2)(A)(i) adds two levels and applies “where there are 

more than 10 victims.” U.S.S.G. § 2B1.1(a)(2)(A)(i); see also United States v. 

Rodriquez, 801 F. App’x 278, 283 (5th Cir. 2020) (per curiam); United 

States v. Anderson, 558 F. App’x 454, 457 (5th Cir. 2014) (per curiam). The 

term “victim” for purposes of § 2B1.1(a)(2)(A)(i) refers to “any individual 

whose means of identification was used unlawfully or without authority.” 

United States v. Biyiklioglu, 716 F. App’x 270, 272 (5th Cir. 2017) (quoting 

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U.S.S.G. § 2B1.1 cmt. 4(E)); see also United States v. Ramirez, 979 F.3d 276, 

282 (5th Cir. 2020). 

Section 2B1.1(b)(11)(C)(i) adds a two-level enhancement if the offense 

involved “the unauthorized transfer or use of any means of identification 

unlawfully to produce or obtain any other means of identification.” United 

States v. Moparty, 11 F.4th 280, 300 (5th Cir. 2021) (quoting U.S.S.G. § 

2B1.1(b)(11)(C)(i)); see also United States v. Suchowolski, 838 F.3d 530, 531 

(5th Cir. 2016). The term “[m]eans of identification” has the meaning given 

to it in 18 U.S.C. § 1028(d)(7), but such means of identification shall be of an 

actual, not a fictitious, individual, other than the defendant or a person for 

whose conduct the defendant is held accountable under U.S.S.G. § 1B1.3. 

Suchowolski, 838 F.3d at 532 (quoting U.S.S.G. § 2B1.1 cmt. n.1); see also

18 U.S.C. § 1028(d)(7) (the term “means of identification” refers to any name 

or number that can be used, alone or in along with any other information, to 

identify a specific individual, such as a social security number). 

Sah’s argument that the District Court erred by enhancing his 

sentence under §§ 2B1.1(a)(2)(A)(i) and 2B1.1(b)(11)(C)(i) lacks merit for at 

least two reasons. First, the enhancements under §§ 2B1.1(a)(2)(A)(i) and 

2B1.1(b)(11)(C)(i) are not duplicative because each enhancement applies to 

a different aspect of the same offense conduct. Thus, there is no double 

counting because §§ 2B1.1(a)(2)(A)(i) and 2B1.1(b)(11)(C)(i) were both 

applied. Second, even if Sah was correct that the application of §§ 

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2B1.1(a)(2)(A)(i) and 2B1.1(b)(11)(C)(i) to his sentence amounted to double 

counting, “such double-counting would be permissible under the 

Guidelines.” United States v. Jones, 145 F.3d 736, 737 (5th Cir. 1998). 

Double counting is only prohibited under the guidelines when the specific 

guidelines at issue forbid it. See United States v. Mendoza-Gomez, 69 F.4th 

273, 275 n.1 (5th Cir. 2023) (“The Fifth Circuit has held that ‘double counting 

is prohibited only if the particular guidelines at issue specifically prohibit 

it.’”) (quoting United States v. Johnson, 990 F.3d 392, 403 (5th Cir. 2021)). 

The guidelines at issue here, U.S.S.G. §§ 2B1.1(a)(2)(A)(i) and 

2B1.1(b)(11)(C)(i), do not prohibit double counting. 

If Sah’s attorney had objected to the application of §§ 2B1.1(a)(2)(A)(i) 

and 2B1.1(b)(11)(C)(i) based on double counting, it would have been a 

frivolous argument. And the failure to raise a meritless argument cannot 

support an ineffective assistance of counsel claim. Kimler, 167 F.3d at 893; 

see also Sones, 61 F.3d at 415 n.5; Gibson, 55 F.3d 173, at 179. For this 

reason, Sah has failed to show deficient performance and prejudice. His 

claim fails under both prongs of the Strickland standard, and it should be 

denied. 

3. The wire fraud enhancement under U.S.S.G. § 2S1.1(b)(2)(A) 

Under § 2S1.1(b)(2)(A), a court may enhance a defendant’s sentence 

by one level if he was convicted of money laundering in violation of 18 U.S.C. 

§ 1957. U.S.S.G. § 2S1.1(b)(2)(A); see also United States v. Peralta-Castro, 

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2019 WL 2343677, at *1 (S.D. Tex. June 3, 2019). But Sah argues that his 

trial attorney should have objected to the Court’s application of the 

enhancement based on his wire fraud conviction. Am. Mot. 21-22 (CV ECF 

No. 4); see also Reply 7 (CV ECF No. 21). He contends that the application 

of § 2S1.1(b)(2)(A) amounted to “double counting of the offense charged.” 

Am. Mot. 22 (CV ECF No. 4). 

As discussed, double counting under the guidelines is only prohibited 

where the specific guidelines at issue forbid it. Mendoza-Gomez, 69 F.4th at 

275; Johnson, 990 F.3d at 403; see also United States v. Godfrey, 25 F.3d 

263, 264 (5th Cir. 1994) (“Double counting is impermissible only when the 

particular guidelines in question forbid it.”) (citing United States v. 

Gonzales, 996 F.2d 88, 93-94 (5th Cir. 1993)). The guidelines expressly 

allow an enhancement for a defendant, like Sah, who was convicted under § 

1957. U.S.S.G. § 2S1.1(b)(2)(A). Thus, the application of § 2S1.1(b)(2)(A) 

does not amount to impermissible double counting. See United States v. 

Demarest, 570 F.3d 1232, 1243 (11th Cir. 2009) (finding the base offense 

level did not distinguish between the various money-laundering statutes but 

enhancements such as § 2S1.1(b)(2)(A) do).

If Sah’s attorney had objected to the application of § 2S1.1(b)(2)(A) 

based on double counting, it would have been a frivolous argument. And the 

failure to raise a meritless argument cannot support an ineffective assistance 

of counsel claim. Kimler, 167 F.3d at 893; see also Sones, 61 F.3d at 415 n.5; 

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Gibson, 55 F.3d 173, at 179. For this reason, Sah has failed to show deficient 

performance and prejudice. His claim fails under both prongs of the 

Strickland standard, and it should be denied. 

4. Vindictive prosecution claim 

Sah contends that the Government vindictively punished him for 

exercising his right to plead guilty, and he argues that his trial attorney 

provided ineffective assistance of counsel by failing to raise the issue. Am. 

Mot 22-24, 26 (CV ECF No. 4); see also Reply 3 (CV ECF No. 21). He also 

claims that his attorney’s failure to raise a vindictive prosecution claim 

violated his Fifth, Sixth, and Fourteenth Amendment rights. Am. Mot. 26 

(CV ECF No. 4). 

Generally, there are two ways a defendant can prove a claim of 

prosecutorial vindictiveness: (1) he must prove actual vindictiveness by 

presenting objective evidence that the prosecutor’s actions were designed to 

punish him for asserting his legal rights; and (2) in certain cases, he may 

demonstrate sufficient facts to lead to a presumption of vindictiveness. 

United States v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008). A prosecutor 

may “prosecute with earnestness and vigor,” but he must “refrain from 

improper methods calculated to produce a wrongful conviction.” United 

States v. Young, 470 U.S. 1, 7 (1985) (internal quotation marks omitted). A 

court reviews a claim of prosecutorial misconduct, when alleged in a habeas 

corpus proceeding, to determine whether it “so infected the trial with 

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unfairness as to make the resulting [conviction] a denial of due process.” 

Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000) (quoting Ables v. 

Scott, 73 F.3d 591, 592 n.2 (5th Cir. 1996)). “[T]he Due Process Clause does 

not afford relief where the challenged evidence was not the principal focus 

at trial[,] and the errors were not so pronounced and persistent that it 

permeates the entire atmosphere of the trial.” Gonzales v. Thaler, 643 F.3d 

425, 431 (5th Cir. 2011) (internal quotation marks omitted). “Moreover, the 

appropriate standard of review for such a claim on writ of habeas corpus is 

the narrow one of due process, and not the broad exercise of supervisory 

power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation 

marks omitted). Due process is only violated when the alleged conduct 

deprived the movant of his right to a fair trial. See Foy v. Donnelly, 959 F.2d 

1307, 1317 (5th Cir. 1992). A trial is deemed fundamentally unfair only when 

there is a reasonable probability that the verdict might have been different 

had the trial been conducted properly. Id. Only in the most egregious 

situations will a prosecutor's improper conduct violate a defendant’s 

constitutional rights. See Ortega v. McCotter, 808 F.2d 406, 410 (5th Cir. 

1987).

Sah argues that the Court should apply a presumption of 

vindictiveness, Am. Mot. 23 at (CV ECF No. 4), but his argument lacks merit. 

“The presumption of vindictiveness is a prophylactic rule designed to protect 

a defendant’s due process rights where a danger exists that the 

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[G]overnment might retaliate against him for exercising a legal right.” 

Saltzman, 537 F.3d at 359; see also United States v. Shults, 2018 WL 

5046427, at *2 (N.D. Tex. Sept. 20, 2018). And there is no presumption of 

vindictiveness when the context of the entire proceedings indicates to a 

reasonably minded defendant that the prosecutor’s decision was motivated 

by a purpose other than a vindictive desire. Saltzman, 537 F.3d at 360

(quoting United States v. Wells, 262 F.3d 455 466–67 (5th Cir. 2001)). Sah’s 

argument fails because has not come forward with any evidence showing the 

Government sought to punish him more harshly because he pleaded guilty. 

When Sah pleaded guilty rather than going to trial, he saved the Government 

the time and expense associated with conducting a trial. See United States 

v. Goodwin, 457 U.S. 368, 378-80 (1982). Sah does not offer a theory to 

explain why the Government would punish him for saving it the time and 

expense associated with conducting a trial. Moreover, any reasonably 

minded person would recognize that the Government argued in favor of Sah 

receiving several sentencing enhancements because the facts of his case 

warranted the application of those enhancements, not to be vindictive. For 

these reasons, the record fails to demonstrate that a presumption of 

vindictiveness should be applied. See Saltzman, 537 F.3d at 360; see also 

Shults, 2018 WL 5046427, at *2. 

Sah has also failed to show actual vindictiveness. To demonstrate 

actual vindictiveness, Sah must present objective evidence that the 

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prosecutor’s actions were designed to punish him for asserting his legal 

rights. Saltzman, 537 F.3d at 359. “[A]ctual vindictiveness requires direct 

evidence, such as a statement by the prosecutor, which is available only in a 

rare case.” United States v. Johnson, 221 F.3d 83, 94 (2d Cir. 2000) (internal 

quotation marks omitted); see also Saltzman, 537 F.3d at 359 (recognizing 

actual vindictiveness requires a showing of “objective evidence”). Sah fails 

to point to any objective record evidence demonstrating vindictiveness, and 

this is fatal to his actual vindictiveness claim. Sah suggests that the 

Government had a vindictive motive when it moved for pretrial detention, 

sought the forfeiture of his property, and advocated for the sentence 

enhancements imposed. However, Sah is mistaken because he was 

prosecuted by the Government for an extensive fraudulent scheme involving 

“extreme conduct,” (CR ECF No. 72 at 41), with a total intended loss of 

almost $25 million and an actual loss of over $17 million. (Final PSR ¶ 37.) 

There is no objective evidence to support Sah’s vindictive prosecution claim, 

and the Court should deny it. 

If Sah’s attorney had raised a vindictive prosecution claim, it would 

have been a frivolous argument. And the failure to raise a meritless 

argument cannot support an ineffective assistance of counsel claim. Kimler, 

167 F.3d at 893; see also Sones, 61 F.3d at 415 n.5; Gibson, 55 F.3d 173, at 

179. For this reason, Sah has failed to show deficient performance and 

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prejudice. His claim fails under both prongs of the Strickland standard, and 

it should be denied. 

B. Sah’s claims that his appellate attorney provided ineffective assistance 

of counsel fail under Strickland. 

Sah claims that his appellate attorney provided ineffective assistance 

of counsel when he failed to address on appeal the application of 

enhancements under U.S.S.G. §§ 2B1.1(b)(10)(C), (a)(2)(A)(i), (b)(11)(C)(i), 

and § 2S1.1(b)(2)(A), and his vindictive prosecution claim. Am. Mot. 11, 26 

(CV ECF No. 4); see also Reply 2-3 (CV ECF No. 21). 

This claim fails because Sah waived his right to file a direct appeal. 

(CR ECF No. 30 at 13-14.) Sah’s argument that his appellate attorney failed 

to raise the claims addressing error related to the sentencing guidelines and 

his vindictive prosecution claim would have been summarily dismissed due 

to the waiver in his plea agreement. See Hatfield v. United States, 2022 WL 

17167990, at *2 (N.D. Tex. Oct. 27, 2022) (finding the movant’s ineffective 

assistance of appellate counsel claim was waived by the appellate waiver 

provision in his plea agreement) (citing Smith, 528 U.S. at 285), rec. 

adopted, 2022 WL 17168374 (N.D. Tex. Nov. 21, 2022). Therefore, Sah 

cannot demonstrate that those arguments were nonfrivolous. Specifically, 

Sah’s appellate attorney correctly determined that there were no nonfrivolous issues to present to the Fifth Circuit. See Smith, 528 U.S. at 285

(when a petitioner argues his appellate attorney erred by failing to file a 

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merits brief on appeal, he can satisfy the Strickland test by showing a 

reasonably competent attorney could have found at least one of his claims 

presented a non-frivolous issue); see also Hatfield, 2022 WL 17167990, at 

*2 (citing Smith, 528 U.S. at 285). 

If Sah’s appellate attorney had addressed on appeal the application of 

U.S.S.G. §§ 2B1.1(b)(10)(C), (a)(2)(A)(i), (b)(11)(C)(i), and § 2S1.1(b)(2)(A), 

or his vindictive prosecution claim, those arguments would have been 

frivolous. And the failure to raise a meritless argument cannot support an 

ineffective assistance of counsel claim. Kimler, 167 F.3d at 893; see also 

Sones, 61 F.3d at 415 n.5; Gibson, 55 F.3d 173, at 179. For this reason, Sah 

has failed to show deficient performance and prejudice. His claim fails under 

both prongs of the Strickland standard, and it should be denied. 

C. Sah’s vindictive prosecution claim is waived and meritless. 

Sah argues in his second claim that the prosecution engaged in a 

“[v]indictive prosecution” that violated his Fifth, Sixth, and Fourteenth 

Amendment rights. Am. Mot. 22 (CV ECF No. 4). Sah contends that the 

prosecutors “vindictively” charged him with causing or intending to cause a 

monetary loss when no loss occurred because he had fourteen months before 

he had to begin repaying the loans. Id. at 23. Sah also contends that following 

his arrest, he was prevented from making any phone calls for several days. 

Id. at 24. Sah concludes that he is entitled to relief from the prosecution’s 

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“overzealous, overreaching and vindictive prosecution that substantially 

prejudiced” him. Id. at 25. 

This claim fails because Sah voluntarily pleaded guilty, and a knowing 

and voluntary guilty plea generally waives all non-jurisdictional defects 

relating to events preceding the guilty plea. See United States v. Cothran, 

302 F.3d 279, 285-86 (5th Cir. 2002) (stating a guilty plea “waives claims of 

governmental misconduct during the investigation and improper motives 

for prosecution”); United States v. Bentle, 533 F. App’x 462, 463 (5th Cir. 

2013) (per curiam) (stating a guilty plea waives a challenge to the 

voluntariness of a defendant’s confession). This waiver includes all claims of 

ineffective assistance of counsel, except those relating to the defendant’s 

entry of a guilty plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983); see 

also United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000) (noting a 

voluntary guilty plea waiver includes all claims of ineffective assistance of 

counsel unless the ineffective assistance is alleged to have rendered the 

guilty plea involuntary); Pena v. United States, 2021 WL 2920616, at *3 

(N.D. Tex. July 12, 2021) (same). 

Additionally, Sah waived his right to bring this claim because his plea 

agreement included the following waiver provision:

The defendant waives the defendant’s rights, conferred by 28 

U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal the conviction, 

sentence, fine and order of restitution or forfeiture in an 

amount to be determined by the district court. The defendant 

further waives his right to contest the conviction, sentence, fine 

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and order of restitution or forfeiture in any collateral 

proceeding, including proceedings under 28 U.S.C. § 2241 and 

28 U.S.C. § 2255. The defendant, however, reserves the rights 

(a) to bring a direct appeal of (i) a sentence exceeding the 

statutory maximum punishment, or (ii) an arithmetic error at 

sentencing (b) to challenge the voluntariness of his plea of 

guilty or this waiver, and (c) to bring a claim of ineffective 

assistance of counsel.

(CR ECF No. 30 at 13-14) (emphasis added). Sah’s claim that the 

prosecution engaged in a vindictive prosecution against him does not fall 

within any reservation of rights contained in the waiver provision. And 

courts generally enforce a collateral review waiver provision where the 

waiver “was knowing and voluntary, and if the waiver applies to the 

circumstances at hand.” United States v. Walters, 732 F.3d 489, 491 (5th 

Cir. 2013) (citing United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005)); 

see also United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). However, 

the Fifth Circuit has recognized exceptions to this rule where a movant 

raises a claim of ineffective assistance of counsel, or the sentence exceeds 

the statutory maximum. United States v. Barnes, 953 F.3d 383, 388-89 

(5th Cir. 2020); see also United States v. Hollins, 97 F. App’x 477, 479 (5th 

Cir. 2004) (per curiam). 

In this case, there is no indication that Sah’s waiver was not informed 

and voluntary. See Reply 4-5 (CV ECF No. 21) (claiming ignorance, 

incomprehension, and coercion invalidated the waiver of his constitutional 

rights). As part of his plea agreement, Sah acknowledged his guilty plea was 

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“freely and voluntarily made and is not the result of force or threats, or of 

promises apart from those set forth in this plea agreement. There have been 

no guarantees or promises from anyone as to what sentence the Court will 

impose.” (CR ECF No. 30 at 13); see also Reply 4-5 (CV ECF No. 21) 

(claiming he was coerced into pleaded guilty). Sah also acknowledged that 

he had “thoroughly reviewed all legal and factual aspects of this case with 

[his] attorney and is fully satisfied with that attorney’s legal representation . 

. . [he] has received from [his] attorney explanations satisfactory to [him] 

concerning each paragraph of this plea agreement, each of [his] rights 

affected by this agreement, and the alternatives available to [him] other than 

entering into this agreement.” (CR ECF No. 30 at 14.) Sah conceded “that 

[he was] guilty, and after conferring with [his] attorney, [he] [ ] concluded 

that it [was] in [his] best interest to enter into this plea agreement and all its 

terms, rather than to proceed to trial in this case.” Id. at 14-15. At his 

rearraignment hearing, the Court specifically noted that the plea agreement 

included a broad waiver of Sah’s right to challenge his conviction and 

sentence in a collateral proceeding. (CR ECF No. 69 at 16-17.) Sah admitted 

under oath that he understood the right, and he was voluntarily waiving it. 

Id. at 17. 

Finally, as discussed above, Sah’s vindictive prosecution claim also 

fails on the merits. Thus, Sah’s vindictive prosecution claim is waived and 

meritless. The Government also argues that Sah’s vindictive prosecution 

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claim is procedurally barred. Because Sah’s claim is waived and meritless, 

the Court should pretermit consideration of this additional argument.

D. Sah’s claim that his Due Process rights and rights under the Fifth, 

Sixth, and Fourteenth Amendments were violated are waived and 

meritless.

Last, Sah argues in his fourth claim that his first through third claims 

“showcase a violation of due process and possibly the class action fairness 

act in contradiction to the fifth, sixth and fourteenth amendments.” Am. 

Mot. 27 (CV ECF No. 4); see also Reply 3-4 (CV ECF No. 21). 

Sah’s fourth claim fails for at least two reasons. First, Sah waived his 

right to bring this claim in the collateral review waiver provision contained 

in his plea agreement. See (CR ECF No. 30 at 13-14). Second, Sah’s claim 

fails on the merits. Sah’s first, second, and third claims each fail on the 

merits. Accordingly, Sah’s fourth claim, which incorporates his first through 

third claims, fails because each of those claims are meritless. 

Sah’s fourth claim is waived and meritless. The Government also 

argues that Sah’s fourth claim is procedurally barred. Because Sah’s fourth 

claim is waived and meritless, the Court should pretermit consideration of 

this additional argument.

For these reasons, Sah’s fourth claim should be denied. 

Conclusion

The District Court should DENY Sah’s motion to vacate, set-aside, or 

correct his sentence under 28 U.S.C. § 2255. 

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Signed November 8, 2023. 

___________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all 

parties in the manner provided by law. Any party who objects to any part of 

this report and recommendation must file specific written objections within 

14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for 

the objection, and specify the place in the magistrate judge’s report and 

recommendation where the disputed determination is found. An objection 

that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific. Failure to file specific written objections will 

bar the aggrieved party from appealing the factual findings and legal 

conclusions of the magistrate judge that are accepted or adopted by the 

district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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