MEMORANDUM & ORDER Before the Court is Petitioner Yefim Morchik’s motion to vacate his sentence pursuant to 28 U.S.C. §2255. Morchik pleaded guilty to Count Two of an indictment, conspiracy to receive and pay healthcare kickbacks in violation of 18 U.S.C. §371, pursuant to a cooperation agreement on August 29, 2013. (D.E. #142.) On December 9, 2016, Morchik was sentenced to thirty-four months imprisonment. (D.E. dated December 9, 2016.) Morchik’s motion challenges aspects of his sentencing on the basis that his counsel provided ineffective assistance in violation of his Sixth Amendment rights. See generally Strickland v. Washington, 466 U.S. 668 (1984). For the reasons stated below, the Court denies Morchik’s motion.BACKGROUNDI. Role in the OffenseMorchik pleaded guilty to conspiracy to receive and pay healthcare kickbacks in violation of 18 U.S.C. §371, based on his role in a fraudulent Medicaid billing scheme centered around the healthcare provider Cropsey Medical Care, PLLC. Cropsey Medical Care, PLLC paid kickbacks to patients so that it could submit fraudulent Medicaid bills on their behalf between November 2009 and October 2012. (D.E. #1 (“Indictment”) 18.) It also received kickbacks from certain other healthcare providers in exchange for referring patients to them. (Id.
19-20.)A plea hearing was held on August 29, 2013. At the hearing, Morchik allocuted to the following:From June 2010 through May 2012, during which time I was employed by G&M Ambulette Service, I agreed with others to pay cash kickbacks and receive cash back from Cropsey Medical Care, PLLC. In return for the kickbacks that I paid, Cropsey referred patients to G&M to transport them to and from Cropsey. G&M billed Medicaid for its services.During the same period, I agreed with an employee of Cropsey to refer Medicare patients to Cropsey in return for which I receive [sic] kickbacks. I knew that paying and receiving kickbacks was wrong.On January 5, 2012, I paid cash kickbacks to an employee of Cropsey in a car in Brooklyn.(D.E. #463-16 (“Plea”) at 31.) Magistrate Judge Orenstein also questioned Morchik about the full scope of the conspiracy. He mentioned that the indictment referred to the time period November 2009 through October 2012 and noted “with respect to the timing, the government wouldn’t have to prove that you were involved in this agreement for that whole time, but just that at some time during that period, you either entered into the agreement or you or somebody else while you were a member of that agreement did something to make it succeed.” (Id. at 14.) Judge Orenstein asked if Morchik understood, to which he responded “Yes.” (Id.)II. CooperationMorchik was arrested on October 4, 2012. (D.E. #18.) From the time of his arrest through the weeks prior to his guilty plea, Morchik was represented by Arkady Bukh (counsel of record for this motion) and Nicholas Woolridge of Bukh & Associates, P.C. (D.E. #22-23) During that period, Morchik met with the government on several occasions, admitted to his role in the scheme, and made recordings with individuals at Cropsey. (D.E. #463-1 (“Fatico Transcript”) at 115-19.)Morchik then retained new counsel — Jonathan Marks — who entered an appearance on August 15, 2013. (D.E. #136.) The Government and Morchik agreed that he would plead guilty pursuant to a written cooperation agreement on August 29, 2013. (D.E. #142, 463-2.) That agreement required Morchik to “provide truthful, complete and accurate information” to the Government in addition to testifying at any proceedings requested by the Government. (D.E. #463-2 (“Cooperation Agreement”) at 3.) On January 29, 2014, Albert Dayan, Esq., the attorney Morchik now alleges provided ineffective assistance of counsel, entered an appearance on Morchik’s behalf. (D.E. #193.) Morchik’s cooperation continued thereafter.The Government states, that, in 2015, it became concerned that Morchik had been offering untruthful testimony about co-defendant Pavel Zborovskiy both before and after Morchik signed his cooperation agreement. (D.E. #471 (“Gov. Br.”) at 5.) Special Agent Delaney testified that she set up a meeting with Morchik in March of 2015 in preparation for upcoming Fatico hearing for co-defendants Pavel Zborovskiy and Igor Ishchuk. (Fatico Transcript at 22.) At that meeting, Morchik said — consistent with his post-arrest statements — that he knew who Zborovskiy was, but that he was not aware of Zborovskiy’s relationship with G&M Ambulette Servicers. (Id. at 23.) But these statements appeared to conflict with the statements and recordings of another cooperator which suggested that Morchik and Zborovskiy had worked together the scope of the conspiracy. (Id. at 29-30.)These apparent inconsistencies transformed into problems with morchik’s cooperation later in 2015. Morchik failed to appear in meeting with the Government in July and August in which the Government sought to explore the information he had given them with regard to Zborovskiy. (Id. at 57.) Morchik claims that “[p]rior to that meeting, [he] had several encounters with Mr. Zborovskiy and his associates, during which [he] was thereaten [sic] that if [he] testified against Mr. Zborovskiy, [he] and/or [his] family members would be physically hurt.” (D.E. #465 (Morchik Decl.”) 2.) Morchik claims that he came to both scheduled meetings but was advised by Dayan that “it was not in [his] best interest to meet with the government.” (Id. 4.) Morchik also claoms that Dayan “respected [his] decision not to testify against Mr. Zborovskiy because of [his] fear for safety” and Dayan “never advised [him] that [his] refusal to testify against Mr. Zborovskiy would constitute a breach of cooperation agreement [sic].” (Id. 3.)Morchik ultimately met with the Government on October 7, 2015. (Fatico Transcript at 57.) At the meeting, Morchik explained to the Government why he felt threatened by Zborovskiy. (Id. at 58-61.) He was once again asked substantive about his relationship with Zborovskiy. He responded consistent with his post-arrest and March statements. (Id. at 62.) In the meeting, Morchik made clear that he was unwilling to testify Zborovskiy. (Id.)The Court held a Fataico hearing on October 31, 2016 to explore whether Morchik was dishonest in his cooperation with the Government. (D.E. dated October 12, 2016.) Morchik claims that “Mr. Davan never explained to [him] the purpose and significance of [his] Fatico hearing and did not permit [him] to testify despite [his] willingness to do so.” (Morchik Decl. 11.) Dayan refutes this caim, stating that he “informed [Morchik] that if he testified dishonestly he could be charged with obstruction” and that “[i]t was Mr. Morchik’s decision not to testify.” (D.E. #476 (“Dayan Decl.”) 15.) Morchik ultimately did not testify at the Fatico hearing. Toward the close of the hearing, Dayan indicated that he would include in his sentencing submission “a couple of paragraphs” about the hearing. (Fatico Transcript at 142), but he failed to do so, (see generally D.E. #418). At his sentencing on December 9, 2016, Judge Townes concluded that Morchik did in fact lie about Zborovskiy to the Government. (D.E. #463-3 (“Sent. Transcript”) at 4), but that there was — in any event — “no issue” whether he deserve[d]” a 5K1.1 letter because Morchik “ conceded that he did not deserve this letter because he had violated the conditions of his cooperation agreement in that he failed to meet with the Government as requested and he refused to testify when asked to do so.” (id. at 3). Judge Townes ultimately concluded that her ruling about Morchik’s dishonesty “does not affect the guidelines range or anything in the case.” (Id. at 5.)III. Sentencing SubmissionsProbation filed an initial Presentence Investigation Report (“PSR”) on July 28, 2015, (D.E. #320), as well as two addenda — one filed October 5, 2016, (D.E. #408), and one on December 8, 2016, (D.E. #423). Morchik now challenges the accuracy of a few statements in the PSR, including that he “recruited patients from the Brooklyn Russian immigrant community,” (PSR 28), that he was an ambulette driver, and that he received $40 kickbacks from co-defendant Irina Barikyan.1 (D.E. #463 (Def. Br.”) at 34.) Among its other recommendations, Probation provided some background on Morchik’s background and family life. (PSR
