[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 14710 Non

- Argument Calendar

________________________ D.C. Docket No s . 1:17

- cv - 20468

- JEM , 1 : 12

- cr - 20757

- JEM

- 3
CHRISTIAN COLOMA, Petitioner

- Appellant,

versus UNITED STATES OF AMERICA, Respondent

- Appellee,

ATTORNEY RONALD GAINOR, et al.,

Intervenors.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ ( March 23, 2020 ) Case: 18-14710 Date Filed: 03/23/2020 Page: 1 of 42 Before WILSON , JORDAN, and NEWSOM , Circuit Judges.
PER CURIAM: Christian Coloma is a federal prisoner serving a 144

- month sentence for one count of conspiracy t o defraud the United States and to pay and receive kickbacks in connection with a federal healthcare benefit program, in violation of 18 U.S.C. § 371, and five counts of payment of kickbacks in connection with a federal healthcare benefit program, in viola tion of 42 U.S.C. § 1320a

- 7b(b)(2)(A) . He appeals the district court ’ s denial of his 28 U.S.C. § 2255 motion to vacate. Coloma argues that the government violated his Fifth and Sixth Amendment rights when it obtained duplicate copies of his attorney work product from a government contracted copying service. For the following reasons, we affirm. In reviewing a district court ’ s denial of a § 2255 motion to vacate, we review de novo the court ’ s legal conclusions and review for clear error the court ’ s factua l findings. Spencer v. United States , 773 F.3d 1132, 1137 (11th Cir. 2014) ( en banc ). The Fifth Amendment guarantees the right against the deprivation of “ life, liberty, or property , without due process of law

. ” U.S. Const. amend. V. To constitute a violation of the Fifth Amendment due process clause, the alleged violation “ must be so outrageous that it is fundamentally unfair and shocking to the universal sense of justice. ” United States v. Ofshe , 817 F.2d 15 08, 1516 (11th Cir.

Case: 18-14710 Date Filed: 03/23/2020 Page: 2 of 43 1987) ( internal quotation mark omitted). “ [ T ] he totality of the circumstances must be considered with no single factor controlling ” when determining whether such conduct exists , and “ [t]he defense is to be invoked only in the rarest an d most outrageous of circumstances. ” Id . ( internal quotation marks omitted). Even if the behavior constitute d a violation of the Fifth Amendment due process clause, reversal is only warranted if the defendant demonstrates that the violation result ed in p rejudice ( or , if applicable, the substantial threat of prejudice )

. See United
States v. Morrison , 449 U.S. 361, 365

– 66 (1981). The Sixth Amendment guarantees anyone accused of a crime the right to assistance of counsel. U.S. Const. amend. VI. An allege d Sixth Amendment violation must have had ( or threatened ) “ some adverse effect upon the effectiveness of counsel ’ s representation or

. . . produced some other prejudice to the defense ” to warrant “ imposing a remedy. ” Morrison , 449 U.S. at 365. Here, assuming without deciding that counsel’s selection and/ or compilation of documents during discovery from government

- produced documents constituted privileged attorney work product under Federal Rule of Criminal Procedure 16(b)(2), 1 Coloma still has not established a violation of his Fifth Amendment right to due process or Sixth Amendment right to assistance of counsel . This is

1 It does not appear that we or the Supreme Court have addressed this specific issue , but we need not reach it to decide this appeal.

Case: 18-14710 Date Filed: 03/23/2020 Page: 3 of 44 because he has failed to show that the government ’ s alleged receipt of his counsel ’ s work product was outrageous or prejudic ial to him. In the face of substantial inculpatory evidence presented at trial by 23 witnesses , at best, he offers nothing but speculation and conclusory assertions to suggest how the government’s possession of this information harmed him

. For the allege d Fifth Amendment violation specifically, he circularly argues that “the Government prejudiced [him] and rendered his defense counsel ineffective by obtaining duplicate copies of the defense team’s work product.” Accordingly, the district court did not er r when it denied Coloma ’ s § 2255 motion, and we affirm. AFFIRMED. Case: 18-14710 Date Filed: 03/23/2020 Page: 4 of 4