Vekaria

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JIGNESH PURUSHOTTAMBHAI VEKARIA

v. Case No. 8:23-cr-40-VMC-CPT

8:25-cv-867-VMC-CPT

UNITED STATES OF AMERICA

_______________________________/

ORDER

This matter is before the Court on Jignesh

Purushottambhai Vekaria’s pro se construed 28 U.S.C. § 2255

Motion to Vacate, Set Aside, or Correct Sentence (Civ. Doc.

## 1 & 1-1; Crim. Doc. ## 74 & 75), which was filed on February

6, 2025. The United States of America responded on May 16,

2025. (Civ. Doc. # 4). Mr. Vekaria filed a reply on June 13,

2025. (Civ. Doc. # 6). The Motion is denied.

I. Background

In July 2023, Mr. Vekaria pled guilty pursuant to a plea

agreement to one count of conspiracy to commit money

laundering. (Crim. Doc. ## 31, 33, 36). During his plea

colloquy, the Magistrate Judge reviewed the plea agreement

with Mr. Vekaria, confirming that he understood the charge,

its elements, and possible punishments, and that he agreed

1

with the plea’s factual basis. (Crim. Doc. # 67 at 31-35, 43-

44, 49). Mr. Vekaria confirmed this and agreed that he had

sufficient time to review the case and the plea agreement

with his counsel, Jeffrey Brown. (Id. at 35, 43, 46). Mr.

Vekaria stated that he was freely and voluntarily pleading

guilty, without any threats or promises outside the plea

agreement having been made. (Id. at 15, 42-43).

Before sentencing, Mr. Brown made numerous objections to

the probation officer’s calculation of the guidelines in the

presentence investigation report on Mr. Vekaria’s behalf.

(Crim. Doc. # 51 at 22-25, 44-45). He also filed a sentencing

memorandum, reiterating Mr. Vekaria’s minor role in the

conspiracy and asking the Court to “appl[y] the same but not

additional specific offense enhancements than his Co-

Defendants.” (Crim. Doc. # 44). As relevant here, Mr. Vekaria,

through Mr. Brown, objected to (1) the two-level enhancement

under USSG § 2B1.1(b)(9)(A) for misrepresenting that he was

acting on behalf of a government agency and (2) the failure

to impose a two-level reduction to his offense level as a

minor participant under USSG § 3B1.2(b). (Crim. Doc. # 51 at

22-25).

2

In November 2023, the Court sentenced Mr. Vekaria to 51

months’ imprisonment and three years’ supervised release.

(Crim. Doc. ## 53-54). During the sentencing hearing, Mr.

Brown maintained the objection to the USSG § 2B1.1(b)(9)(A)

enhancement. (Crim. Doc. # 65 at 8-10). The Court overruled

this objection, finding it applicable relevant conduct even

though Mr. Vekaria had not personally represented himself as

a government agent and noting that the Court “did apply [this

enhancement] to the other person” sentenced. (Id. at 11-12).

Additionally, Mr. Brown argued that Mr. Vekaria should

receive a minor role reduction under USSG § 3B1.2(b): “When

you look at the conspiracy and what Mr. Shah and Mr. Patel

did – the vast amount of money; the knowledge that they had

that it was in India, the call center; and how all that

arranged itself – [Mr. Vekaria] was in this conspiracy for a

brief period of time in relation to the others. His monetary

proceeds were about $200 a day. So I – if we’re looking at

what everybody else did, I believe the minor role would be

applicable there.” (Id. at 10). The Court also overruled this

objection because Mr. Vekaria “was not among the minor

participants. He may not have been among the major

participants, but I don’t think his role deserves a reduction

3

based on him being substantially less responsible than the

other defendants involved.” (Id. at 15).

Mr. Vekaria appealed. (Crim. Doc. # 56). The Eleventh

Circuit affirmed his conviction and sentence in November

2024. (Crim. Doc. # 72).

Subsequently, Mr. Vekaria filed two motions in his

criminal case in February 2025 that challenge his conviction

and sentence. (Crim. Doc. ## 74 & 75). The Court entered a

warning pursuant to Castro v. United States, 540 U.S. 375,

383 (2003), warning Mr. Vekaria that the Court intended to

construe the Motions as a single 2255 Motion. (Crim. Doc. #

79). The Court directed Mr. Vekaria to advise the Court

whether he sought to proceed on the claims in his construed

2255 Motion, amend his construed 2255 Motion, or withdraw his

Motion. (Id. at 2). The Court cautioned Mr. Vekaria that “if

he fails to file a timely response in compliance with this

order, which requires that he advise the Court that he wishes

to do one of the above, this cause shall proceed as an action

under 28 U.S.C. § 2255, with the Court considering only those

claims in his original [Motions].” (Id. at 2-3).

Mr. Vekaria failed to respond to the Castro warning, so

the Court has construed his Motions as a single 2255 Motion

4

and opened this civil case. The United States responded to

the construed 2255 Motion (Civ. Doc. # 4), and Mr. Vekaria

replied. (Civ. Doc. # 6). The Motion is ripe for review.

II. Discussion

Mr. Vekaria raises claims of ineffective assistance of

counsel. (Civ. Doc. ## 1 & 1-1). As stated in his 2255 Motion,

Mr. Vekaria faults his counsel for three alleged failures.

First, his counsel allegedly failed to advise him of the “fast

track” program under USSG § 5K3.1 that was in effect at the

time of sentencing. (Civ. Doc. # 1 at 1-2); see also USSG §

5K3.1 (“Upon motion of the Government, the court may depart

downward not more than 4 levels pursuant to an early

disposition program authorized by the Attorney General of the

United States and the United States Attorney for the district

in which the court resides.”). Second, he faults counsel for

failing to prevent the Court from imposing the USSG §

2B1.1(b)(9)(A) enhancement. (Civ. Doc. # 1 at 1-2; Civ. Doc.

# 1-1 at 1). Finally, he faults counsel for failing to procure

a minor-role reduction for Mr. Vekaria.1 (Civ. Doc. # 1 at 1-

2).

1 Mr. Vekaria’s reply (Civ. Doc. # 6) could be liberally

construed as asserting additional claims. For example, while

5

These claims have been timely raised and are cognizable.

(Civ. Doc. # 4 at 5-6). Mr. Vekaria bears the burden of proof

and persuasion on every aspect of his claims. Beeman v. United

States, 871 F.3d 1215, 1223-24 (11th Cir. 2017); Rivers v.

United States, 777 F.3d 1304, 1316 (11th Cir. 2015).

To prevail on a claim of ineffective assistance of

counsel, a petitioner must show that (1) his counsel’s

he argued in his Motion that his counsel was ineffective for

failing to advise him of the “fast track” program under USSG

§ 5K3.1, Mr. Vekaria changes his argument in the reply to

insist that counsel failed to “investigate whether the

government might consider a downward departure or variance

under USSG [§] 3553(a) for similarly situated non-citizen

defendants who receive harsher punishments due to immigration

consequences.” (Id. at 3). Another example: in his Motion,

Mr. Vekaria simply complains that counsel “did nothing to

stop the Court” from failing to apply the minor-role reduction

(Civ. Doc. # 1 at 1), but expands his claim in his reply to

insist that counsel performed ineffectively regarding the

minor-role reduction because he allegedly “lacked interest,”

communicated insufficiently with Mr. Vekaria in preparation

for his plea and sentencing, and failed to review every page

of discovery with Mr. Vekaria. (Civ. Doc. # 6 at 3-4). To the

extent the reply asserts additional claims, these claims are

waived. See McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d

1357, 1365 (11th Cir. 2021) (“[A]rguments raised for the first

time in a party’s reply brief are waived.”); Wallace v. United

States, No. 8:11-cr-287-SCB-MAP, 2014 WL 12605465, at *5

(M.D. Fla. Jan. 13, 2014) (“Petitioner’s § 2255 motion did

not contend that appellate counsel was ineffective for

failing to argue the Fourth Amendment issues, and this

ineffectiveness claim was raised for the first time in his

reply brief. . . . Arguments raised for the first time in a

reply brief are deemed waived.”).

6

performance was deficient, and (2) the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). To establish deficient performance, Mr.

Vekaria must demonstrate by a preponderance of the evidence

“that particular and identified acts or omissions of counsel

‘were outside the wide range of professionally competent

assistance.’” Chandler v. United States, 218 F.3d 1305, 1314

(11th Cir. 2000) (citations omitted). In other words, Mr.

Vekaria must show that “no competent counsel would have taken

the action that his counsel did take.” Id. at 1315. In

deciding whether an attorney’s performance was deficient,

courts are “highly deferential” and “indulge [the] strong

presumption that counsel’s performance was reasonable and

that counsel made all significant decisions in the exercise

of reasonable professional judgment.” Id. at 1314 (internal

quotation marks omitted).

To satisfy Strickland’s second prong — prejudice — Mr.

Vekaria must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466

U.S. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. “[I]f

7

a claim fails to satisfy the prejudice component, the Court

need not make a ruling on the performance component.” Ortiz

v. United States, No 8:15-cr-409-VMC-JSS, 2017 WL 6021645, at

*2 (M.D. Fla. Jan. 11, 2017).

Here, Mr. Vekaria does not argue that his counsel was

ineffective regarding the decision to plead guilty.2 Rather,

Mr. Vekaria complains about counsel’s performance at

sentencing.

These claims fail because counsel was not ineffective.

First, as Mr. Vekaria acknowledges (Civ. Doc. # 6 at 3), “the

fast-track program is only available to an eligible defendant

charged under 8 U.S.C. § 1326 with illegally re-entry after

having been previously removed from the United States.” (Civ.

Doc. # 4 at 7). Because Mr. Vekaria was convicted of

2 To the extent the Motion could be liberally construed as

asserting an ineffective assistance of counsel claim

regarding the decision to plead guilty, such a claim would

fail on the merits. Mr. Vekaria has not met the heavy burden

of showing that his sworn statements during his plea colloquy

were false. See Winthrop-Redin v. United States, 767 F.3d

1210, 1217 (11th Cir. 2014) (“[B]ecause Winthrop–Redin made

statements under oath at a plea colloquy, ‘he bears a heavy

burden to show his statements were false.’” (citation

omitted)). Mr. Vekaria’s sworn statements establish that he

knowingly and voluntarily entered the guilty plea after

having ample time to discuss the case and the plea agreement

with Mr. Brown and without any threats or promises being made.

(Crim. Doc. # 67).

8

conspiracy to commit money laundering, he was not eligible

for this program. Thus, Mr. Vekaria’s counsel was not

ineffective for failing to discuss this program with Mr.

Vekaria or seek entry into this program. See Card v. Dugger,

911 F.2d 1494, 1520 (11th Cir. 1990) (“Counsel cannot be

labeled ineffective for failing to raise issues which have no

merit.”). And Mr. Vekaria has not established that he was

prejudiced by any such failure by counsel to explain a program

for which he was ineligible. See United States v. Winfield,

960 F.2d 970, 974 (11th Cir. 1992) (“[A] lawyer’s failure to

preserve a meritless issue plainly cannot prejudice a

client.”).

Even assuming the fast-track program could apply to a

defendant charged with conspiracy to commit money laundering,

Mr. Vekaria still has not established that he was prejudiced

by his counsel’s failure to discuss the program with him or

attempt to negotiate entry into the program with the United

States. The Court could only grant the four-level reduction

under USSG § 5K3.1 “[u]pon motion of the Government.” USSG §

5K3.1. But Mr. Vekaria has not met his burden of showing that

the United States would have been willing to move for such

reduction even if Mr. Vekaria’s counsel had sought it. See

9

Williams v. United States, 985 F.3d 813, 821 (11th Cir. 2021)

(“When a case turns on an issue of historical fact, the

available evidence, whether traffic footage or the legal

landscape of yesteryear, must satisfy the burden of proof on

the disputed issue. If the evidence is silent or in equipoise,

then the party with the burden fails.”).

Next, Mr. Vekaria complains that Mr. Brown should have

prevented the Court from imposing the USSG § 2B1.1(b)(9)(A)

enhancement. (Civ. Doc. # 1 at 1; Civ. Doc. # 6 at 1). Under

this guideline, “[i]f the offense involved . . . a

misrepresentation that the defendant was acting on behalf of

a charitable, educational, religious, or political

organization, or a government agency,” a two-level

enhancement applies. USSG § 2B1.1(b)(9)(A) (emphasis added).

According to Mr. Vekaria, “some of the alleged named

codefendants . . . did not receive[]” this enhancement (Civ.

Doc. # 1-1 at 1), although he never identifies them. Mr.

Vekaria faults Mr. Brown for not “present[ing] factual

evidence showing that the other co-defendants did not

receive[] the two-level enhancement under USSG §

2B1.1(b)(9)(A).” (Civ. Doc. # 6 at 1).

10

This argument fails. Mr. Brown was not ineffective

regarding the imposition of the USSG § 2B1.1(b)(9)(A)

enhancement. The plea agreement’s factual basis to which Mr.

Vekaria agreed states that the “overseas conspirators often

falsely and fraudulently identified themselves as federal law

enforcement officers, such as Social Security Administration

officials or Federal Bureau of Investigation agents.” (Crim.

Doc. # 31 at 18). Nevertheless, Mr. Brown objected to the

application of this enhancement, emphasizing that Mr. Vekaria

“made no such representations [personally] and [the

enhancement] should not be applied to [Mr. Vekaria] if none

of the other defendants received it.” (Crim. Doc. # 51 at

24). In his sentencing memorandum, Mr. Brown asked the Court

to “appl[y] the same but not additional specific offense

enhancements than his Co-Defendants,” expressing a concern

that Mr. Vekaria not face a sentencing disparity caused by

different application of enhancements. (Crim. Doc. # 44 at

3). Furthermore, at sentencing, Mr. Brown reiterated his

objection.

The Court overruled this objection because other members

of the conspiracy represented they were federal agents.

(Crim. Doc. # 65 at 11-12). That is, despite Mr. Brown’s

11

zealous advocacy, the Court determined that this enhancement

was appropriate under the evidence. The fact that the

objection was overruled does not establish that Mr. Brown

performed ineffectively in raising it. See Ward v. Hall, 592

F.3d 1144, 1164 (11th Cir. 2010) (“We have long held that the

fact that a particular defense was unsuccessful does not prove

ineffective assistance of counsel.”); Walker v. United

States, No. 2:11-cv-04-WKW, 2013 WL 1917381, at *3 (M.D. Ala.

May 8, 2013) (“[T]he court overruled the objection [at

sentencing], notwithstanding trial counsel’s vigorous

argument. The fact that Mr. Walker believes that his counsel

did not do enough to forestall the sentencing enhancement is

insufficient on this record to show that ‘counsel’s

performance fell below an objective standard of

reasonableness.’” (citation omitted)). Even if Mr. Brown had

been ineffective, there was no prejudice because this Court

would have imposed the enhancement based upon the evidence

that other members of the conspiracy impersonated agents with

the FBI and Social Security Administration. (Crim. Doc. # 31

at 18; Crim. Doc. # 51 at 24-25); see Malara v. United States,

No. 8:21-cr-66-KKM-AAS, 2024 WL 4534184, at *7 (M.D. Fla.

Oct. 21, 2024) (finding no prejudice where a petitioner did

12

not “show a reasonable probability that the district court

would have sustained a relevant-conduct objection and imposed

a shorter sentence absent counsel’s allegedly deficient

performance”).

Third, counsel was not ineffective for failing to obtain

a minor-role reduction for Mr. Vekaria. Before and during

sentencing, Mr. Brown zealously argued that a minor-role

reduction should be awarded to Mr. Vekaria. (Crim. Doc. # 44;

Crim. Doc. # 51 at 22-23; Crim. Doc. # 65 at 10). Mr. Brown

highlighted exactly the facts that Mr. Vekaria faults him

with supposedly not presenting to the Court, including the

“comparative roles of co-defendants, [Mr.] Vekaria’s limited

duration and earnings, [Mr.] Vekaria’s lack of knowledge

regarding the conspiracy, [Mr.] Vekaria’s lack of managerial

authority and [Mr.] Vekaria’s subordinate, task-oriented

function as a driver only.” (Civ. Doc. # 6 at 3). Indeed, in

the sentencing memorandum, Mr. Brown wrote that Mr. Vekaria

worked as a driver and would “receive instructions from [an

organizer of the conspiracy] about picking up the runner

(Perez or Rivera), where to go, what the runner should tell

the bank tellers, and what to withdraw (stolen funds)” and

“where to take the stolen funds.” (Crim. Doc. # 44 at 2). The

13

sentencing memorandum noted that Mr. Vekaria was “paid

$200.00 per day” and only made seven driving trips over four

months despite the four-year length of the conspiracy. (Id.

at 2-3). The sentencing memorandum further emphasized that

“Mr. Vekaria had no decision-making authority and never

recruited anyone” and “was never involved in the call centers

or what they were doing or what they were saying.” (Id. at

3).

Despite counsel’s argument, the Court overruled this

objection, finding that Mr. Vekaria was not a minor

participant in the conspiracy even though there were also

participants with larger roles. (Crim. Doc. # 65 at 15).

Again, the overruling of Mr. Vekaria’s objection does not

establish that Mr. Brown was ineffective in seeking the minor-

role reduction on Mr. Vekaria’s behalf. See Walker, 2013 WL

1917381, at *3 (“[T]he court overruled the objection [at

sentencing], notwithstanding trial counsel’s vigorous

argument. The fact that Mr. Walker believes that his counsel

did not do enough to forestall the sentencing enhancement is

insufficient on this record to show that ‘counsel’s

performance fell below an objective standard of

reasonableness.’” (citation omitted)). Mr. Vekaria also has

14

not shown prejudice because he cannot show a reasonable

probability that the Court would have sustained the minor-

role objection and imposed a shorter sentence absent

counsel’s allegedly deficient performance in arguing the

objection. See Malara, 2024 WL 4534184, at *7 (finding no

prejudice where a petitioner did not “show a reasonable

probability that the district court would have sustained a

relevant-conduct objection and imposed a shorter sentence

absent counsel’s allegedly deficient performance”).

Finally, Mr. Vekaria alludes in the title of his Motion

to “actual innocence,” although he does not develop such an

argument in the Motion. (Civ. Doc. # 1 at 1). The Court

emphasizes that “[a]ctual innocence is not itself a

substantive claim.” United States v. Montano, 398 F.3d 1276,

1284 (11th Cir. 2005). Rather, actual innocence is an

exception to procedural default or the statute of

limitations, but procedural default and the statute of

limitations are not issues here. Therefore, any freestanding

actual innocence claim Mr. Vekaria may be trying to assert

fails.

Even if a freestanding claim of actual innocence could

be asserted, such claim would fail. First, this claim, even

15

as elaborated on in the reply (Civ. Doc. # 6 at 1-2), is

conclusory such that relief cannot be granted. See Tejada v.

Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (holding that

conclusory statements, unsupported by specific facts or the

record, are insufficient to demonstrate entitlement to habeas

relief). Second, Mr. Vekaria primarily argues that he is

“actually innocent of . . . [the] sentencing enhancement under

USSG § 2B1.1(b)(9)(A),” but does not argue that he is actually

innocent of the offense of conspiracy to commit money

laundering. (Civ. Doc. # 6 at 1). Third, Mr. Vekaria’s claim

of actual innocence is undermined by his under-oath

statements at his change of plea hearing. Again, he admitted

the truth of the factual basis for his plea during his plea

colloquy. (Crim. Doc. # 67 at 31-35). And Mr. Vekaria has not

met the heavy burden of showing that his statements during

his plea colloquy were false. See Winthrop-Redin v. United

States, 767 F.3d 1210, 1217 (11th Cir. 2014) (“[B]ecause

Winthrop–Redin made statements under oath at a plea colloquy,

‘he bears a heavy burden to show his statements were false.’”

(citation omitted)). Therefore, such a claim of actual

innocence would alternatively fail on the merits.

The Motion is denied.

16

III. Evidentiary Hearing

As the Court readily determined that Mr. Vekaria’s

Motion lacks merit, no evidentiary hearing is required. See

28 U.S.C. § 2255(b) (stating that an evidentiary hearing is

not necessary if “the motion and the files and records of the

case conclusively show that the prisoner is entitled to no

relief”); see also Hernandez v. United States, 778 F.3d 1230,

1232-33 (11th Cir. 2015) (“To establish that he is entitled

to an evidentiary hearing, Hernandez had to allege facts that

would prove that his counsel performed deficiently and that

he was prejudiced by his counsel’s deficient performance.”).

IV. Certificate of Appealability and Leave to Appeal In

Forma Pauperis Denied

The Court declines to issue a certificate of

appealability because Mr. Vekaria has failed to make a

substantial showing of the denial of a constitutional right

as required by 28 U.S.C. § 2253(c)(2). Nor will the Court

authorize Mr. Vekaria to proceed on appeal in forma pauperis

because such an appeal would not be taken in good faith. See

28 U.S.C. § 1915(a)(3). Mr. Vekaria shall be required to pay

the full amount of the appellate filing fee pursuant to

Section 1915(b)(1) and (2).

17

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Jignesh Purushottambhai Vekaria’s pro se construed 28

U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct

Sentence (Civ. Doc. ## 1 & 1-1; Crim. Doc. ## 74 & 75)

is DENIED.

(2) The Clerk is directed to enter judgment in favor of the

United States of America and against Mr. Vekaria and,

thereafter, to close this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

25th day of March, 2026.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

18