USA v. Powles et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA 	: 	CRIMINAL NO. 1:21-CR-145
:
v. 	: 	(Judge Neary)
:
JOSEPH POWLES, 	:
:
Defendant 	:
MEMORANDUM
Before the court is defendant Joseph Powles’s pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Powles claims he did not
have effective assistance of counsel and wants his state parole sentence to be served
concurrently with his federal sentence (instead of consecutively).
After a thorough review of the record and applicable law, it is clear that
Powles’ motion should be denied on both counts.
I. 	Factual Background and Procedural History
On May 19, 2021, Powles and several co-defendants were indicted on one
count of conspiracy to commit mail fraud in violation of 18 U.S.C § 1349. (Doc. 1).
The court appointed Attorney Paul J. Kovatch as Powles’s counsel. (Doc. 205).
Powles initially pled not guilty on January 31, 2023. (Doc. 206). Around nine
months later, he was also sentenced to nine months imprisonment by the
Pennsylvania Parole Board for having committed mail fraud. (Doc. 263). This
sentence was to be served “concurrently, when available, pending sentencing on
federal indictment 1:21CR145 and pending [his] return to a state correectional [sic]
institution.” (Doc. 263).
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While represented by Attorney Kovatch, Powles reached a plea agreement.
(Doc. 232). As a part of that agreement, Powles pled guilty to count 1 of the
indictment: conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349. (Id.
¶1). The maximum penalty for this offense is imprisonment for a period of twenty
years, a fine of $250,000, and a term of supervised release of three years. (Id.). The
plea agreement included a waiver of Powles’s direct and collateral appeal rights.
(Id. ¶ 25-26).
On August 21, 2023, the court conducted a change of plea hearing to ensure
Powles was informed of his rights and willingly entered a guilty plea. (Doc. 280). At
the hearing, Powles confirmed that he read, understood, signed, and agreed to the
entire plea agreement. (Id. at 6:20-7:10). The prosecutor explained the counts,
penalties, and factual basis for the plea, to which Powles’s counsel concurred. (Id. at
18:20-23:05.). Additionally, Powles was informed and acknowledged that the plea
agreement waived his right to directly or collaterally appeal his conviction or
sentence. (Id. at 15:09-17:14).
The court found that Powles was “fully alert, competent, and capable of
entering an informed plea, and that this plea is a knowing and voluntary plea
supported by an independent basis in fact containing each of the essential elements
of the offense pled to.” (Id. at 23:12-16). The court therefore accepted the plea and
adjudicated him guilty. (Doc. 238). At sentencing, Attorney Kovatch asked the court
to make Powles’s nine-month sentence on state parole concurrent with any federal
sentence so that he could be eligible for halfway houses or residential drug
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treatment programs to assist him in combatting his addiction. (Doc. 281at 12:01-
13:05). The court questioned whether consecutive sentences would be a barrier to
the defendant’s ability to receive drug treatment. (Id. at 17:03-17:10). Attorney
Kovatch argued that consecutive state custody would be considered a detainer and
make the defendant ineligible for a step-down program. (Id. at 20:13-21). The court
acknowledged the benefits of participating in further drug treatment programs. The
court further addressed a Notice of the Board of Decisions of the Commonwealth of
Pennsylvania, Pennsylvania Parole Board which addressed the Parole Board’s
sentence and its reluctance to accept a time credit without the defendant being
physically present in a state institution. (Id. at 18:20-20:24).
The court sentenced Powles to 50 months imprisonment and restitution in
the amount of $156,566. (Id. at 23:14-23:18). The court noted Powles’s serious
criminal history, including while on supervision with the state parole, creating a
higher risk of recidivism. (Id. at 21:09-22:21). Still, the sentencing judge exercised
his discretion to make the sentence concurrent with Powles’s state parole sentence,
noting the concurrent sentence would be beneficial to Powles’s treatment options.
(Id. at 22:22-23:11). At the time of sentencing, Powles had not yet served his state
parole sentence.
On February 28, 2025, Powles filed a timely petition to modify his sentence
pursuant to 28 U.S.C. § 2255. (Doc. 272). The government filed a brief in opposition
on May 21, 2025. (Doc. 282). This matter is now fully briefed and ripe for
disposition.
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III. 	Legal Standards
A. Motion to Vacate
A federal prisoner who is currently in custody under the sentence of a court
may move the sentencing court to vacate, set aside, or correct the prisoner’s
sentence under 28 U.S.C. § 2255. The court may afford relief under Section 2255 on
multiple grounds including, inter alia, that the sentence was imposed in violation of
the Constitution or laws of the United States or is otherwise subject to collateral
attack. See 28 U.S.C. § 2255. As a remedy, the statute permits the court to “vacate
and set the judgment aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear appropriate.” Id. The court
must accept the movant’s allegations as true unless the allegations are “clearly
frivolous on the basis of the existing record.” United States v. Booth, 432 F.3d 542,
545 (3d Cir. 2005). The court must hold an evidentiary hearing when the motion
“allege[s] any facts warranting relief under [Section] 2255 that are not clearly
resolved by the record.” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015).
B. Concurrent and Consecutive Sentence
On collateral attack under Section 2255, a petitioner may contest whether
the sentencing court erred in ruling that that the sentence imposed should run
consecutively or concurrently with another sentence that had or will be imposed. 28
U.S.C. § 2255; United States v. Hopkins, No. 1:06-CR-0064, 2013 WL 2147793, at *1
(M.D. Pa. May 16, 2013). The reviewing court considers whether the district court
abused its discretion at sentencing. Setser v. United States, 566 U.S. 231, 244
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(2012). Judges in both federal and state court have discretion to select whether the
sentences they impose run concurrently or consecutively with other sentences they
impose or sentences that have been or will be imposed in other proceedings,
including state proceedings. See id. at 235-37; Oregon v. Ice, 555 U.S. 160, 163-64
(2009).
C. Ineffective Assistance of Counsel
A collateral attack under Section 2255 based on ineffective assistance of
counsel is governed by a two-pronged test set forth in Strickland v. Washington. 466
U.S. 668, 669 (1984). To prevail, a defendant must show that (1) counsel’s
representation fell below an objective standard of reasonableness based on the
prevailing norms of the legal profession and (2) the deficiencies in representation
were prejudicial. Id. at 687. The defendant bears the burden of proving both prongs.
See id. at 687.
The reviewing court must be highly deferential to counsel’s performance in
determining whether counsel has satisfied the objective standard of reasonableness.
Id. at 689. There is a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional standards and only a rare claim of ineffective
assistance of counsel should succeed under the properly deferential standards.
United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989). To satisfy the prejudice
prong, a petitioner must show that there is a reasonable probability that the results
of the proceeding would have been different but for counsel’s unprofessional
conduct. Strickland, 466 U.S. at 693-95. A reasonable probability must be sufficient
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to undermine confidence in the outcome. Id at 694. The court does not need to
complete its analysis in any particular order or address both prongs if the defendant
fails to make a sufficient showing on one element. See id. at 697.
IV. 	Discussion
Fundamentally, Powles is seeking relief from the wrong court. This court
determined whether his federal sentence could be concurrent to state charges; it did
not set his state sentence. (Doc. 264 at 2). Thus, Powles’s complaint that he must
now serve his Pennsylvania probationary sentence consecutive to his federal
sentence is not within the judgment of this court.
Nor does the court have the authority to order Pennsylvania to make
Powles’s state charges run concurrently with his federal ones. District court rulings
for concurrent sentences can be enforced as to federal sentence, but principals of
sovereignty limit enforceability as to state sentences. Setser, 566 U.S. at 241. Under
federalism, each sovereign, federal and state, has responsibility over its own
criminal justice system including setting and enforcing its own sentences. Id. If a
prisoner has pending sentences in both federal and state court, each sovereign may
independently determine whether the sentences are served concurrently or
consecutively with final decision-making power going to the last sovereign to
enforce its penalty. Id. Thus, a state court system would separately determine
whether to give a prisoner moved from federal to state custody credit against his
state sentence without being bound by the federal district court’s sentence. Id. The
possibility that a state court could fail to follow the federal district court’s sentence
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does not mean that the district court abused its discretion because “[t]hat a
sentence is thwarted does not mean it was unreasonable.” Setser. 566 U.S. at 244.
Powles additionally argues that Attorney Kovatch’s representation was
constitutionally deficient because Attorney Kovatch failed to fully explain that the
state court system had to agree to his sentence and falsely claimed that he would
serve all his time in federal prison. These arguments are not convincing.
At his change of plea hearing, the court advised Powles that while his
attorney could make recommendations, any final determinations about his sentence
would be made by the court. (Doc. 280 at 13:05-14:04). He was further informed that
the court had discretion in determining his sentence, potentially including imposing
a sentence above the guideline range. (Id. at 14:08-13). Having affirmed that he
understood and acknowledged his attorney’s recommendations about sentencing
were merely advisory, and that the court had broad discretion in determining his
sentence, Powles still pleaded guilty. (Id. 23:06-11).
Therefore, any complaints about the advice he received from Attorney
Kovatch on his ultimate sentence are unavailing. Powles pleaded guilty after being
informed that the sentence he would receive was solely up to the discretion of the
court; he cannot now argue that he was not aware of the consequences of his plea.
The mere fact that Powles is dissatisfied with his sentence does not render counsel
ineffective. Powles had the opportunity to speak with Attorney Kovatch at the plea
hearing if he had any further questions. Additionally, Attorney Kovatch raised
concerns about petitioner’s sentence and concurrency with the state system at
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sentencing. (Doc. 281 at 19:20-20:14). Even assuming Attorney Kovatch did mislead
Powles about his ultimate sentence—which to be clear, is only an assumption—
Powles cannot demonstrate prejudice. See Strickland, 466 U.S. at 687. He was told,
and agreed he understood, no one could guarantee what sentence he would
ultimately receive. Further still, it is not clear what more Attorney Kovatch could
have done. As explained above, Pennsylvania is a separate sovereign, over which
this court has no control. The fact that the Pennsylvania criminal justice system has
made a different decision does not render Attorney Kovatch’s assistance ineffective.
V. 	Conclusion
Joseph Powles pleaded guilty to a federal offence in addition to his state
parole violation. This court does not have jurisdiction to force the Commonwealth of
Pennsylvania to accept a concurrent sentencing recommendation. That the
Commonwealth of Pennsylvania has decided not to adhere to the federal district
court’s recommendation does not render Powles’s federal sentence invalid. Also,
Petitioner’s discontent with his sentence does not render his attorney’s assistance
ineffective as he was fully informed that the court had discretion in setting his
sentence before signing the plea agreement and pleading guilty. To the extent he
wishes to have his state sentence be concurrent, he must seek review with the
Pennsylvania Parole Board. Santiago v. Pa. Bd. of Prob. & Parole, 937 A.2d 610,
615-616 (Pa. Commw. Ct. 2007). Powles’s motion (Doc. 272) to vacate, set aside, or
correct his sentence will be denied and an appropriate order shall issue.
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Keli M. Neary
United States District Judge
Middle District of Pennsylvania
Dated: March 9, 2026
/S/ K ELI M. NEARY
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