United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge.
matter comes before the Court on pro se Petitioner
John Yin's motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct a Sentence By a Person in Federal
Custody. Dkt.#1.For the reasons that follow, the Court
DENIES Mr. Yin's motion.
2009 to mid-2015, Mr. Yin sold modified Point of Sale (POS)
devices to local retail stores and restaurants. Crim. Dkt. #7
at 5. These modified POS devices allowed businesses to
underreport sales to state and federal tax authorities and
avoid paying taxes on those unreported sales. Id. at
7. The Government charged Mr. Yin with Wire Fraud and
Conspiracy to Defraud the Government on November 29, 2016.
Crim. Dkt. #1. Mr. Yin entered into a plea agreement on
December 2, 2016. Crim. Dkt. #7. In that agreement, Mr. Yin
pled guilty to Wire Fraud and Conspiracy to Defraud the
Government in violation of 18 U.S.C. §§ 1343 and
371. Id. at 2. Mr. Yin also agreed to pay
restitution in the amount of $3, 445, 589.00 to the
Washington State Department of Revenue and the United States
Treasury. Id. at 4. This amount approximated the
amount of unpaid and unreported taxes attributed to the use
of modified POS devices supplied by Mr. Yin. Crim. Dkt. #7 at
7. The plea agreement included a provision that Mr. Yin would
receive credit towards his restitution debt for "any
amounts already paid." Id. at 4.
April 14, 2017, the Court sentenced Mr. Yin to eighteen
months of imprisonment and ordered him to pay restitution in
accordance with his plea agreement. Crim. Dkt. #23. During
the sentencing hearing, the Government clarified the plea
agreement's restitution section that granted Mr. Yin
credit for "amounts already paid." The Government
stated that Mr. Yin would receive restitution credit for any
payments of unpaid taxes made by businesses that used
modified POS devices supplied by Mr. Yin. Crim. Dkt. #25 at
14. The Government also agreed to assist Mr. Yin and his
counsel, Mr. Davis, in tracking these payments for purposes
of calculating Mr. Yin's remaining restitution debt.
Id. at 16.
sentencing, Mr. Yin failed to begin paying restitution. On
June 21, 2017, the court issued a Writ of Continuing
Garnishment to Mr. Yin and T. Rowe Price, the holder of Mr.
Yin's retirement accounts. Garnish. Dkt. #3. On August 7,
2017, having received no restitution payment from Mr. Yin,
the Government moved to have the court enter a garnishment
order directing T. Rowe Price to transfer eligible funds from
Mr. Yin's retirement account to the court as payment
towards his restitution debt. Garnish. Dkt. #7 at 2-3.
Yin's attorney challenged the Government's motion on
August 17, 2017, asserting that the garnishment writ was
improperly served and that Mr. Yin's retirement funds
were protected from the proposed garnishment order. Garnish.
Dkt. #9 Ex. 1. Mr. Yin also simultaneously attempted to
challenge the Government's motion pro se.
Garnish. Dkt. # 11. As a part of his challenge to the
garnishment motion, Mr. Yin made a claim of ineffective
assistance of counsel. Garnish. Dkt. #14 at 4. Mr. Yin
claimed that Mr. Davis was ineffective in negotiating his
plea agreement because the agreement did not include a clear
and precise method to account for the credit he was to
receive for any tax payments made by businesses that used his
modified POS devices. Id.
court ordered Mr. Yin's pro se filings stricken
because he was still represented by Mr. Davis at the time of
his response to the garnishment motion. Garnish. Dkt. #17.
Mr. Davis then moved to withdraw from representing Mr. Yin
because of Mr. Yin's claims of ineffective assistance of
counsel. Garnish. Dkt. #18. The court granted Mr. Davis's
motion on October 5, 2017. Garnish. Dkt. #21.
October 19, 2017, Mr. Yin filed this Petition for a Writ of
Habeas Corpus asking for relief pursuant to 28 U.S.C. §
2255, claiming a violation of his Sixth Amendment right to
the assistance of counsel. Dkt. #1.
28 U.S.C. § 2255(a), a federal prisoner may file a
motion to vacate, set aside, or correct his or her sentence
"upon the ground 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 . . . .''
28 U.S.C. § 2253(c), there is no right to appeal from a
final order in a proceeding under § 2255 unless a
circuit judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(B).
Restitution Claims ...