Monday, May 03, 2021

Allegations of IAC Regarding Sentencing Exposure Prior to Plea Required Hearing; Cannot Raise Restitution Challenge

US v. Mayhew: Mayhew was convicted on numerous counts of fraud (and related offenses) and sentenced to 320 months in prison, along with a restitution obligation of more than $2 million. After his conviction was final, Mayhew filed a motion under 28 USC 2255 alleging that he received ineffective assistance of counsel on two grounds: that counsel misadvised him as to his sentencing exposure under the Guidelines which caused him to turn down a favorable plea bargain and that counsel failed to object to the inclusion of restitution amounts related to dismissed counts. The district court denied Mayhew’s motion without having a hearing.

On appeal, the Fourth Circuit concluded that the district court erred by not holding a hearing on Mayhew’s claims. The Government admitted that it made an offer for Mayhew to plead guilty to a single conspiracy count that would have capped his statutory maximum sentence at 60 months. Mayhew rejected this because his attorney allegedly told him if he was convicted at trial he would only face a sentence of two to five years. With no evidence contradicting that allegation in the record, Mayhew was entitled to an evidentiary hearing. The court also held that the record did not show a lack of prejudice, as any advisories from the district Mayhew had about sentencing exposure came after he rejected the favorable plea agreement. In addition, while the court held that a defendant could not challenge a restitution award in a 2255 proceeding, it concluded that Mayhew’s issue went also to the loss calculations under the Guidelines, which can be raised under the banner of ineffective assistance of counsel.

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