IAC on Appeal Measured at Time of Appeal, Not Based on Ultimate Result of Resentencing

USv. Allmendinger: Allmendinger was part of a fraudulent insurance scheme that let to investor losses of about $100 million. Allmendinger and his codefendant were both convicted (at separate trials) of (among other things) conspiracy to commit money laundering and two substantive counts of money laundering. Allmendinger was sentenced to 540 months in prison, his codefendant to 720 months.

Allmendninger’s appeal was heard first and the Fourth affirmed his convictions and sentence. The codefendant, however, won a victory on appeal on an issue Allmendinger had not raised – the “merger problem” of having money laundering conspiracy and substantive convictions that covered the same conduct. The codefendant’s money laundering convictions were reversed and he was remanded for resentencing . . . and received the same sentence.

Allmendinger filed a 2255 motion arguing that his appellate counsel had been ineffective for failing to raise the merger issue on appeal. Counsel argued that he had considered raising it, but decided not to in order to focus on other issues that had a better chance of actually reducing Allmendinger’s actual sentence. The district court denied the motion, holding that counsel had made a reasonable strategic decision not to raise the merger issue and, in any case, there was no prejudice because the district court would impose the same sentence in any case, as it had done in the codefendant’s case.

The Fourth Circuit reversed. On the performance prong, the court found that counsel had not met the applicable standard of performance. While the Fourth Circuit had not yet addressed the merger issue at the time of Allmendinger’s appeal, “given our circuit precedent, at the time appellate counsel decided not to raise the merger argument, the argument had a near-certain likelihood of success.” In addition, the issue was clearly more likely to succeed on appeal than the ones actually raised by counsel, so it was not a reasonable strategic decision to exclude it. As to prejudice, the court held that the district court had erred by assessing prejudice with regard to any result a resentencing, rather than at the time when the appeal was decided. “What matters is whether, had counsel raised the merger problem on direct appeal, we likely would have reversed the money laundering counts and remanded to the district court for resentencing.”

Vulnerable Victim Enhancement Applies to "Reloader" In Fraud Scam

USv. Shephard: Shephard worked at a call center in Costa Rica that was engaged in a fairly common scam – they’d call people in the United States, tell them they’d won a monetary prize, but then explain that the winner had to pay some money up front to secure their winnings. As particularly relevant to this appeal, Shephard and others involved with the scam would go back to already victimized scammers to seek more money (on the promise of even greater winnings), a process called “reloading.” Shephard eventually pleaded guilty to numerous fraud counts and at sentencing was assessed an enhancement for having taken advantage of vulnerable victims.

On appeal, the Fourth Circuit affirmed the enhancement and Shephard’s sentence. The court noted that reloading “involves targeting people who have already fallen victim to the scheme at least once, if not repeatedly.” Following the lead of other Circuits, the court concluded that “a victim’s decision to wire money in response to the initial fraudulent call is evidence that they are ‘particularly susceptible to the criminal conduct’ and that is why fraudsters then repeatedly target that victim.” The court held that there was “no clear error in the district court’s determination that some victims were particularly vulnerable and that Shephard was aware of the vulnerability” and that it “is why she and her coconspirators purposefully targeted such victims again and again.”

Appeal of Served Sentence Not Moot Where New Sentence Relates To It

USv. Fluker: In 1992 Fluker was convicted of several firearms charges and sentenced, under ACCA, to 400 months in prison, later reduced to 387 months. After a successful Johnson 2255, he was resentenced (this time as a career offender) to 308 months, “which essentially equaled time served.” However, while in custody, Fluker committed other offenses for which he was convicted and sentenced to 120 months in prison (in another Circuit) to be served consecutively to the term on the first set of offenses.

On appeal, Fluker challenged the career offender designation and his 308-month sentence. The Government argued that the issue was moot, because that sentence had been discharged and Fluker was no longer in custody pursuant to that sentence, but to the second 120-month sentence. The Fourth Circuit concluded that the issue was not moot, because the “start date for Fluker’s [120-month] sentence was always and remains contingent on when he finishes serving the [original] sentence.” Thus, he as a “legally cognizable interest in the outcome of the appeal” because if “he prevails, his ultimate release date may once again shift to an earlier date.” Because the career offender designation was erroneous and the issue was not moot, the court vacated Fluker’s sentence and remanded for resentencing.

Congrats to Defender office in WDVA on the win!