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At some point after sentencing, Mr. Zapara filed a “Notice
of Motion and Motion to Vacate, Set Aside, or Correct Defendant’s
Sentence”. In his motion, Mr. Zapara alleged that he was denied
effective assistance of counsel, that his attorney, Mr. Spirtos,
had an irreconcilable conflict between his own interests and Mr.
Zapara’s interests, and that the plea agreement erroneously
computed the Government’s tax loss for purposes of sentencing.
In its opposition to Mr. Zapara’s motion, the Government conceded
that because of “a mathematical or typographical error in the
plea agreement, the tax loss was mistakenly calculated as being
over $200,000” and that the “correct tax loss is over $120,000”.
On February 28, 2002, the District Court filed an order
granting in part and denying in part Mr. Zapara’s motion. On the
basis of the Government’s concession, the District Court found
that Mr. Spirtos provided ineffective assistance of counsel in
negotiating a plea agreement containing a computational error and
that Mr. Henderson provided ineffective assistance of counsel in
failing to recognize the mistake and allowing Mr. Zapara to be
sentenced using the improper calculation. The District Court
corrected Mr. Zapara’s sentence using the proper calculation.
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