Reply to Response to Motion by Ahmed M Sary — USA v. Sary (Dkt. 119, D. Md. No. 1:22-mj-01286)

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A pro se Reply to Government's Response in Opposition to Motion under 28 U.S.C. § 2255, filed 11/03/25 as Document 119 by Ahmed M. Sary in Criminal Case 1:23-cr-00344-RDB-1 (Civil Case Number 1:25-cv-02198-RDB) in the U.S. District Court for the District of Maryland, answering the Government's Response in Opposition (ECF 118, filed Sept. 19, 2025). It argues that counsel failed to advise of the true restitution exposure, did not challenge the 22-level loss enhancement under U.S.S.G. § 2B1.1(b)(1)(L) and presented no mitigation, and asks the Court to deny summary dismissal, grant an evidentiary hearing and permit limited discovery or direct the Government to obtain counsel's affidavit.

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Case 1:23-cr-00344-RDB     Document 119     Filed 11/03/25     Page 1 of 7
UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND u Exe

BALTIMORE DIVISION Ke ne 8, 7807 coup
AHMED M. SARY, )
Petitioner, )

V. Criminal Case Number: | :23-cr-00344-RDB-1

) (Civil Case Number: 1:25-cv-02198-RDB)

UNITED STATES OF AMERICA. Honorable Judge Richard D. Bennett

Respondent. )

REPLY TO GOVERNMENT’S RESPONSE IN OPPOSITION TO MOTION UNDER
28 U.S.C. § 2255

I. INTRODUCTION

MOVANT AHMED M. SARY, proceeding pro se, respectfully submits this Reply to the
Government’s Response in Opposition (ECF 118, filed Sept. 19, 2025).
The Government’s filing fails to satisfy Rule 4(b) of the Rules Governing § 2255 Proceedings. It
provides no affidavit from prior counsel, no contemporaneous evidence, and no credible rebuttal

to Movant’s sworn factual claims.

Instead, the Government relies solely on selective excerpts from the Rule 11 colloquy and

sentencing transcript. Those materials cannot conclusively refute the detailed allegations in Mr.
Case 1:23-cr-00344-RDB     Document 119     Filed 11/03/25     Page 2 of 7
Sary’s § 2255 Motion (ECF 111, filed July 3, 2025) and his sworn “Full Delivery” Affidavit
(Exhibit A). Under Machibroda v. United States, 368 U.S. 487 (1962), and United States v.

White, 366 F.3d 291 (4th Cir. 2004), disputed factual issues of this nature require an evidentiary

hearing.

Il. PROCEDURAL BACKGROUND

a) Oct. 18, 2023: Movant pleaded guilty before Judge Bennett to one count of wire-fraud

conspiracy (18 U.S.C. § 1349). (ECF 65-66).

b) June 25, 2024: The Court imposed 84 months’ imprisonment, three years of

supervised release (first 12 months home confinement), and $17,901,279.37 in

restitution. (ECF 84).

c) July 3, 2025: Movant filed his § 2255 Motion. (ECF 111).

d) Aug. 1, 2025: The Court ordered a Government response. (ECF 113).

e) Sept. 19, 2025: The Government filed its Opposition (ECF 118) with plea (ECF 114)

and sentencing (ECF 116) transcripts attached.

The contemporaneous “Full Delivery” Affidavit (Exhibit A) elaborates on counsel’s
failures, restitution misadvice, and omitted mitigation.
Case 1:23-cr-00344-RDB     Document 119     Filed 11/03/25     Page 3 of 7
Ill. LEGAL STANDARD

Rule 4(b) allows summary dismissal only when the motion and record conclusively show
the prisoner is not entitled to relief. If factual disputes exist, the court must hold a hearing. White,

366 F.3d at 302; United States v. Witherspoon, 231 F.3d 923 (4th Cir. 2000).

IV. ARGUMENT

A. Counsel Rendered Constitutionally Deficient Assistance

1. Failure to Advise of True Restitution Exposure

Counsel never informed Mr. Sary that restitution could exceed $17.9 million or be
joint and several among co-defendants. The Plea Agreement (ECF 66 § 20) deferred
restitution “to be determined,” yet counsel conducted no financial investigation and
falsely assured Movant that liability would be limited.

At the plea hearing, when asked if he understood restitution, Mr. Sary hesitated—
responding, “J think so.”’ (ECF 114 at 27 Il. 4-5). That answer reflects uncertainty, not
comprehension. Had counsel correctly advised him that restitution would approach $18
million, Mr. Sary would have pursued trial or a capped agreement. United States v.
Mayhew, 995 F.3d 171, 181 (4th Cir. 2021) (plea involuntary where counsel misadvised

on restitution and exposure).
Case 1:23-cr-00344-RDB     Document 119     Filed 11/03/25     Page 4 of 7
2. Failure to Investigate and Challenge Loss Calculation

The Presentence Report applied a 22-level enhancement under U.S.S.G. §
2B1.1(b)(1)(L) for a purported $17 million loss. Counsel filed no objection, sought no
evidentiary hearing, and retained no forensic accountant despite contrary documentation.
This omission increased the Guidelines range by roughly 63 months. Under Glover v.
United States, 531 U.S. 198 (2001), any increase in imprisonment caused by deficient

performance establishes prejudice.

3. Failure to Present Available Mitigation

Mr. Sary provided employment, family, and medical records demonstrating
reduced culpability and rehabilitation. None were presented. The sealed filings (ECF 75,
78) contained only cursory character letters. Omitting such evidence violated counsel’s

duty of reasonable investigation and presentation. Wiggins v. Smith, 539 U.S. 510 (2003).

B. Rule 11 Colloquy Does Not Cure Pre-Plea Misadvice

The Government’s reliance on United States v. Lemaster, 403 F.3d 216 (4th Cir. 2005),
and Brady vy. United States, 397 U.S. 742 (1970), is misplaced.
Rule 11 answers are probative but not preclusive. When a plea rests on off-record
misrepresentations, the colloquy cannot cure the defect. Lambey v. United States, 974 F.2d 1389
(4th Cir. 1992) (en banc). The cited transcript excerpts omit counsel’s prior misstatements and

Movant’s incomplete understanding of restitution.
Case 1:23-cr-00344-RDB     Document 119     Filed 11/03/25     Page 5 of 7
C. Procedural Default Is Excused

Ineffective assistance constitutes both cause and prejudice. Murray v. Carrier, 477 U.S.
478 (1986). Moreover, Massaro y. United States, 538 U.S. 500 (2003), permits such claims to be
raised initially under § 2255. Because plea counsel advised Mr. Sary not to appeal, any default is

excused.

D. The Government Has Not Rebutted Sworn Allegations

The Government submitted no affidavit from prior counsel and no documentary rebuttal.
Where material facts are disputed, the court may not resolve credibility issues or rely solely on
the existing record. Section 2255(b) mandates a hearing unless “the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief,” and Machibroda
v. United States, 368 U.S. 487, 494—96 (1962), reversed a summary denial where the district
court decided factual issues on the papers. See also United States v. White, 366 F.3d 291, 302
(4th Cir. 2004) (hearing required when specific allegations are not conclusively refuted by the
record). The Government’s reliance on the “bare record” therefore fails to meet its burden to

foreclose an evidentiary hearing.

V. AN EVIDENTIARY HEARING IS REQUIRED

Material factual disputes remain concerning:

1. What restitution and loss figures counsel disclosed pre-plea;
Case 1:23-cr-00344-RDB     Document 119     Filed 11/03/25     Page 6 of 7
2. Whether counsel reviewed or objected to the PSR’s calculations; and

3. Whether counsel ignored mitigation evidence provided by Movant.

Each issue involves credibility and off-record facts. Summary denial would contravene White
and Witherspoon. In the alternative, the Court should order limited discovery or require counsel’s

affidavit under Rule 6(a).

VI. CONCLUSION

Because the record does not conclusively show that Movant is ineligible for relief, Mr.

Sary respectfully requests that this Court:

1. Deny the Government’s request for summary dismissal;

i)

Grant an evidentiary hearing on all ineffective-assistance and involuntary-plea claims;

3. Permit limited discovery or direct the Government to obtain and file counsel’s affidavit;

and
4. Grant such other and further relief as justice requires.

Respectiinly 6 Supmiiet.

Ahmk Samy

Ahmed M. i

Pro Se Defendant

Register Number 98545-509
Schuylkill FCI

P.O. Box 759

Minersville, PA 17954
Case 1:23-cr-00344-RDB     Document 119     Filed 11/03/25     Page 7 of 7
VERIFICATION

Pursuant to 28 U.S. C. 1746, I declare and verify, under the penalty of perjury under the laws
of the United States of America, that I have read the foregoing and that it is true and correct to
the best of my ability, knowledge & belief.

Dated this 5“ day of October 2025.

Signed,

Ahmed M. Saty

CERTIFICATE OF SERVICE

I, hereby certify that I have caused to be served to the U.S. District Clerk (Baltimore), a
copy of the foregoing document via U.S. pre-paid & first-class postage through the United States

Postal Service via the prison mailbox.

Dated this 5" day of October 2025.

Signed,

Ahmed M. Safy


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