UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) NO. 2:16CR89-PPS

) (Associated Civil No. 2:20CV401-PPS)

)

SERGIO GARCIA, SR., )

)

Defendant. )

OPINION AND ORDER

Sergio Garcia, Sr. entered a plea of guilty to Count One of the 12-count

indictment in this case, a charge of conspiracy to commit mail fraud involving his real

estate business and offers to buy more than 40 homes from the U.S. Department of

Housing and Urban Development. The plea of guilty occurred without the benefit of a

plea agreement. At the change of plea hearing [DE 100 at 14], Garcia admitted that he

engaged in a conspiracy as charged in Count One with these purposes:

To purchase homes by providing false information to HUD and to

simultaneously sell homes under contract with HUD to other buyers at a

profit;...[t]o thwart HUD’s ability to sell homes to others after the

conspirators’ contracts to purchase HUD homes had expired; and ...[t]o

receive money from other interested buyers of HUD homes after the

conspirators’ contracts to purchase HUD homes had expired.

[DE 1 at ¶15.]1 The means of the scheme included “creating fake letters purporting to

evidence lines of credit and causing the letters to be mailed to HUD, placing ‘for sale’

1 Defendant’s son, Sergio Garcia, Jr., was named as his co-conspirator. Any unspecified use of

“Garcia” in this opinion will refer to Sergio Garcia, Sr.

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signs on HUD-owned properties, filing false liens on properties after contracts to

purchase them from HUD had expired, and requesting to receive money in exchange

for releasing the false liens.” [Id. at ¶16.] At sentencing, the government moved to

dismiss the remaining counts. [DE 153, 155.] After two previous days of evidentiary

hearings, and with a finding that the fraud conspiracy resulted in an actual loss between

$500,000 and $1,000,000, I sentenced Garcia, Sr. to 70 months’ imprisonment. [DE 165 at

9, 153, 167.] Now before me is Garcia, Sr.’s Amended Motion to Vacate, Set Aside or

Correct Sentence Pursuant to 28 U.S.C. §2255. [DE 240.] 

§2255 Standards

Section 2255(a) authorizes relief where a prisoner demonstrates “that the

sentence was imposed in violation of the Constitution or laws of the United States, or

that the court was without jurisdiction to impose such sentence, or that the sentence

was in excess of the maximum authorized by law, or is otherwise subject to collateral

attack.” The Seventh Circuit has observed that this is a high bar: “Relief under §2255 is

available ‘only in extraordinary situations, such as an error of constitutional or

jurisdictional magnitude or where a fundamental defect has occurred which results in a

complete miscarriage of justice.’” United v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014)

(quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). 

All three of Garcia’s grounds for relief are claims of ineffective assistance of

counsel. The Sixth Amendment to the United States Constitution guarantees a criminal

defendant a right to the effective assistance of counsel for his defense. Burkhart v. United

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States, 27 F.4th 1289, 1295 (7th

 Cir. 2022). In order to obtain relief for a violation of this

right, Garcia must demonstrate that counsel’s performance “fell below an objective

standard of reasonableness” and that “but for counsel’s unprofessional errors the result

of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

688, 694 (1984). If either of these prongs cannot be met, the claim fails, and I am not

required to address both prongs if either is deficient. Thompson v. Vanihel, 998 F.3d 762,

767 (7th Cir. 2021). 

“To reflect the wide range of competent legal strategies and to avoid the pitfalls

of review in hindsight, [the court's] review of an attorney's performance is highly

deferential and reflects a strong presumption that counsel's conduct falls within the

wide range of reasonable professional assistance.” Yu Tian Li v. United States, 648 F.3d

524, 527–28 (7th Cir. 2011). This deference must guide my analysis of counsel’s

performance on the first prong of the Strickland test. As to the second prong, prejudice

to the defense requires a showing that “there is a reasonable probability that, but for

counsel’s errors, the result of the proceedings would have been different, such that the

proceedings were fundamentally unfair or unreliable.” Blake v. United States, 723 F.3d

870, 879 (7th Cir. 2013). More particularly, to establish prejudice where a defendant has

entered a plea of guilty, he must “demonstrate a reasonable probability that, but for

counsel’s errors, he would not have pleaded and would have insisted on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985). “In the plea bargaining context, reasonably

competent counsel will attempt to learn all of the facts of the case, make an estimate of a

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likely sentence, and communicate the results of that analysis before allowing his client

to plead guilty.” Gaylord v. United States, 829 F.3d 500, 506 (7th Cir. 2016), quoted in

Harris v. United States, 13 F.4th 623, 631 (7th Cir. 2021). 

Ground One: Plea Advice

Garcia’s first ground for relief is that he “was not advised that if he pleaded

guilty that he could be charged with an additional loss amount that would substantially

increase his sentencing range.” [DE 240 at 3.] Garcia indicates that his discussions with

counsel were based upon an “agreed-upon loss of $550,000.” [Id.] As both a factual and

legal matter, Garcia’s argument cannot succeed. Here’s why.

Garcia is right that the most significant factor in arriving at the appropriate term

of imprisonment was the amount of loss attributable to the fraud conspiracy. But my

ultimate determination of that issue was, for sentencing purposes, in accord with the

$550,000 figure Garcia invokes. At sentencing, I accepted the defendant’s position that the

actual loss from the fraud included $496,389.79, which was the sum of the sales prices

that HUD ultimately received for 87 properties identified as impacted by the

conspiracy, minus the earnest money that the defendants had paid. [DE 165 at 9.] Then

I considered that the loss must reasonably include substantial maintenance costs that

HUD incurred attributable to the bogus liens the conspirators placed on properties. 

[Id.] The resulting loss range of between $500,000 and $1,000,000, yielded a 14-point

increase to the base offense level under the sentencing guidelines, and ultimately an

advisory guidelines imprisonment range of 70 to 87 months. [DE 165 at 10, 11.] I did

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not sentence Garcia, Sr. on the basis of the $3.7 million intended loss advocated by the

government, but instead worked with the figure advocated by the defense. [DE 165 at

4-6.] So the prison term I imposed was actually the bottom of the range under the

sentencing guidelines, even using the “agreed-upon” figure Garcia now claims. 

Viewed against this background, Garcia fails to demonstrate that his attorney’s

performance was defective, or that he was prejudiced by it. Because Garcia says his

discussions with counsel projected a loss amount of $550,000, and his sentence was later

based on the guidelines that would apply to that figure, Garcia cannot credibly claim

that he would not have pleaded and would have insisted on going to trial if he’d been

told that the government might advocate for a higher loss amount. 

This is particularly so in light of my colloquy with Garcia at his change of plea

hearing on the subject of sentencing expectations. After Garcia acknowledged that his

attorney had tried to estimate where his case might fall under the guidelines, I advised

him: 

Now, do you understand that I won’t be able to know precisely what the

guideline range for your case will be until a presentence report has been

completed by somebody from the probation department? .... I tell you

these things so that you understand that the sentence that’s ultimately

imposed upon you, it could be different than any estimate your lawyer

may have given you.

[DE 100 at 8-9.] I went on to warn Garcia that the guidelines are merely advisory and

that I would be “free to disregard the guidelines and to give you a sentence that’s either

more severe or less severe than what the guidelines actually call for.” [Id. at 9.] 

Speaking very plainly, I obtained Garcia’s acknowledgment that “if the sentence is

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more severe than you expect it to be, you’re still going to be bound by your plea, and

you’re going to have no right to withdraw it.” [Id. at 10.]

Garcia’s acknowledgment that he knew and understood these things binds him

now. “Voluntary responses made by a defendant under oath before an examining

judge ... are binding.” United States v. White, 597 F.3d 863, 868 (7th Cir. 2010). “[T]he

defendant’s statements at a plea colloquy are presumed to be true.” United States v.

Chavers, 515 F.3d 722, 724 (7th Cir. 2008). And ”[s]elf-serving statements offered after the

plea hearing generally fall in the face of contradictory voluntary statements made by

the defendant during a plea hearing – the latter are presumed true.” United States v

Mosley, 35 F.3d 569 (7th

 Cir. 1994)[Table].

Garcia does not address Ground One in his reply brief. [DE 264.] Because he

demonstrates neither deficient performance by his attorney, nor prejudice from any

insufficiency or error in counsel’s pre-plea advice, Ground One is without merit.

Ground Two: Expert Witness on Amount of Loss

Garcia next argues that his counsel was ineffective for failing to secure an expert

witness to support the defense theory of the amount of loss at sentencing:

The sole issue before the court would be the loss amount, yet, defense

counsel, a seasoned, experienced attorney failed to prepare for that

hearing by retaining an expert witness. Time and again the Court

struggled to understand the confusing loss theory put forth by the

government, but in the absence of a competing analysis put forward by

defense counsel, was given nothing else to choose from other than the

government’s version. 

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[DE 240 at 5-6.] This argument is perplexing since, as I noted above, I sided with the

defense on the loss amount issue. This makes it impossible for Garcia to establish

prejudice under the Strickland analysis.

Garcia’s claim fares no better on the deficient performance prong. In connection

with a failure to call an expert witness, “[f]or counsel's performance to be found

deficient, the defendant must demonstrate that an expert capable of supporting the

defense was reasonably available at the time of trial.” Ellison v. Acevedo, 593 F.3d 625,

634 (7th Cir. 2010). Only with his reply does Garcia supply emails sent to his counsel in

which Garcia identified the potential expert witnesses he now cites in support of his

ineffective assistance claim. [DE 264 at 8.]2

For starters, arguments made only in reply

are waived. White v. United States, 8 F.4th 547, 552 (7th Cir. 2021). But even with the

belated identification of potential witnesses, Garcia’s treatment of the issue is too

scanty. And perfunctory and undeveloped arguments are likewise waived. Id., citing

United States v. Elst, 579 F.3d 740, 747 (7th Cir. 2009). 

As the government correctly observes Garcia fails to identify “any particular

expert who was available at the time, and further fails to explain the testimony said

expert could have offered that would have led to a significantly lower sentence.” [DE

253 at 11.] United States v. Anderson, 61 F.3d1290, 1298-99 (7th Cir. 1995) (rejecting

ineffective assistance claim where defendant fails to show how witnesses would have

2 Garcia claims to have provided the same exhibits earlier with his original petition, but the court

file does not reflect that. [DE 264 at 3.] 

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testified or how they could have changed the result in the case). See also Yang v. Pollard,

202 Fed.Appx. 134, 137 (7th Cir. 2006) (“In federal court, Yang cannot simply state that a

putative witness's testimony would have been favorable because speculation alone

cannot support an ineffective-assistance claim.”), and United States v. Asimi, 932 F.2d

643, 650 (7th Cir.1991) (stating that evidence about testimony of putative witness must

be presented in form of actual testimony or affidavit). Without presenting the wishedfor testimony in detail, Garcia cannot demonstrate that his counsel’s failure to offer the

testimony was deficient performance because I cannot make an accurate assessment of

the potential value of the evidence to Garcia’s case. Without a showing of either

prejudice or deficient performance, Ground Two is without merit.

Ground Three: Failure to File a Notice of Appeal

Lastly Garcia faults his counsel for failing to file a notice of appeal. [DE 240 at 7.] 

But counsel did file a notice of appeal after the entry of judgment. [DE 157.] And the

appeal was later terminated by Garcia himself. The government has filed a copy of

Garcia’s Motion of Appellant to Dismiss Appeal [DE 253-1 at 1], and the supporting

Waiver of Right to Appeal signed by Garcia [id. at 4-5]. The Seventh Circuit dismissed

the appeal on Garcia’s motion. [DE 170-1.] In view of the obvious lack of merit of

Garcia’s Ground Three, he has not further addressed it in his reply. [DE 264.] 

Supplemental Filing by Garcia

Well after Garcia’s reply brief, he submitted what he titled “Information to be

Taken Into Consideration with Pending and Fully Briefed 2255.” [DE 280.] The filing

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was untimely, and Garcia did not seek or obtain leave to file it. Its contents discuss 

comparative sentences imposed on other fraud defendants and an update on the

COVID-19 pandemic’s impact on Garcia’s place of incarceration. None of this

information is relevant to the standard for relief under §2255. Instead, it suggests

arguments more pertinent to motions for compassionate release under 18 U.S.C.

§3582(c)(1)(A). Garcia’s efforts to avoid his term of imprisonment have included seven

of those already. [DE 186, 199, 214, 239, 246, 261, 283.] The arguments are out of place

here and similarly unsuccessful when offered in the §2255 context.

 Conclusion

Sergio Garcia Sr.’s arguments fall well short of a demonstration that there was

any violation of his right to effective representation that would entitle him to relief

under §2255. Because I find that Garcia has not made a substantial showing of the

denial of a constitutional right, and that reasonable jurists could not debate the

reasoning for rejecting his motion under §2255, I will also deny a certificate of

appealability. 28 U.S.C. §2253(c)(2); Welch v. United States, 136 S.Ct. 1257, 1263 (2016). If

Garcia wishes to appeal this Opinion and Order denying his §2255 motion, he must

seek a certificate of appealability from the Court of Appeals under Federal Rule of

Appellate Procedure 22.

ACCORDINGLY:

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Sergio Garcia, Sr.’s Amended Motion to Vacate, Set Aside or Correct Sentence

pursuant to 28 U.S.C. §2255 [DE 240] is DENIED, and a certificate of appealability is 

also DENIED.

SO ORDERED.

ENTERED: July 18, 2022.

 /s/ Philip P. Simon

PHILIP P. SIMON, JUDGE 

UNITED STATES DISTRICT COURT

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