Blayne Davis v. United States ( 2017 )

Case: 16-10645 Date Filed: 06/13/2017 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10645
Non-Argument Calendar
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D.C. Docket Nos. 6:12-cv-01870-ACC-GJK; 6:10-cr-00190-ACC-GJK-1
BLAYNE DAVIS,
Petitioner-Appellant.
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(June 13, 2017)
Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Blayne Davis, a pro se federal prisoner, appeals the district court’s denial of
his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. After a
jury convicted Davis of three counts of wire fraud in connection with a Ponzi
scheme, the trial court sentenced him to 36-month concurrent sentences, followed
by a three-year term of supervised release. This Court granted a certificate of
appealability (“COA”) on the issue of whether, at sentencing, Davis’ counsel was
ineffective for failing to object to the application of a two-level guidelines
enhancement for the number of victims under U.S.S.G. § 2B1.1(b)(2)(A). After
review, we affirm the district court’s denial of Davis’s ineffective assistance claim.
I. INEFFECTIVE ASSISTANCE
To prevail on an ineffective assistance of counsel claim, a defendant must
show that: (1) his counsel’s performance was deficient, and (2) he suffered
prejudice as a result of the deficient performance. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). In determining whether counsel’s
performance was deficient, “counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. at 690, 104 S. Ct. at 2066. Counsel’s performance is
deficient only if it falls below the wide range of competence demanded of
attorneys in criminal cases. Id. at 687-88, 104 S. Ct. at 2064-65. As to the second
prong, prejudice is a “reasonable probability that, but for counsel’s unprofessional
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errors, the result of the proceeding would have been different.” Id. at 694, 104 S.
Ct. at 2068.
For the reasons below, the district court correctly denied Davis’s ineffective
assistance claim because Davis did not establish either deficient performance or
prejudice as to the application of the victim enhancement under U.S.S.G.
§ 2B1.1(b)(2)(A).
II. DAVIS’S CLAIM
Davis’s ineffective assistance claim hinges on his counsel’s failure to object
to a 2-level enhancement based on the number of victims of Davis’s Ponzi scheme.
At the time of Davis’s sentencing, U.S.S.G. § 2B1.1(b)(2)(A) provided that a
defendant’s offense level was increased by 2-levels if the offense involved 10 or
more, but fewer than 50, victims. U.S.S.G. § 2B1.1(b)(2)(A) (2011). The
commentary to § 2B1.1(b)(2)(A) defined “victim” as “any person who sustained
any part of the actual loss.” U.S.S.G. § 2B1.1 cmt. n.1. The commentary provided
that “actual loss” was “the reasonably foreseeable pecuniary harm that resulted
from the offense.” U.S.S.G. § 2B1.1 cmt. n.3(A)(i).
When a defendant challenges the factual basis for a sentencing enhancement,
such as the 2-level enhancement under § 2B1.1(b)(2)(A), the government has the
burden to prove the disputed fact by a preponderance of the evidence. United
States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013). “While estimates are
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permissible, ‘courts must not speculate concerning the existence of a fact which
would permit a more severe sentence under the guidelines.’” Id. (quoting United
States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997)). More importantly, a
sentencing court’s fact findings may be based on, among other things, the evidence
presented at trial. United States v. Saunders, 318 F.3d 1257, 1271 n.22 (11th Cir.
2003).
Here, Davis has not shown that his counsel’s failure to object to the 2-level
victim enhancement constituted deficient performance. At trial, nine witnesses—
Dana Welk, James Glenn, Richie Anderson, Jaret Glenn, Chris Anderson, Brian
Beck, Ricardo Brignole, Mark Jack, and Robin Minall—testified that Davis
defrauded them personally through his Ponzi scheme. In addition, some of these
witnesses identified other victims, mostly family, friends, and coworkers, who also
lost money in Davis’s scheme.
In all, trial testimony identified at least 18 individuals who invested money
in Davis’s fraudulent scheme, including Betty Anderson, Chris Anderson, Richie
Anderson, Brian Beck, Matthew Brice, Rick Brignole, James Glenn, Jaret Glenn,
Stuart Glenn, Mike Hindle, Todd Iverson, Jay Jack, Mark Jack, Jeremy Light,
Robin Minall, JonMichael Perkins/Mantelli, Steve Vandyke, and Dana Welk.
Most of these individuals were also listed as victims in Davis’s presentence
investigation report. While trial testimony established that some of these
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individuals recouped their money, some testified that they lost money, and some
said that Davis repaid them all or part of their investments, but only after they
hired a lawyer who threatened to sue Davis and negotiated a settlement. 1 See
United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005) (concluding that victims
who suffered a monetary loss but eventually were reimbursed are “victims” for
purposes of § 2B1.1(b)(2)’s victim enhancement). One victim, Stuart Glenn, spoke
at Davis’s sentencing and advised the sentencing court that he never recouped
$30,000 of his investment in Davis’s scheme.
Davis complains that the jury acquitted him of the conduct charged in
Counts 1 and 2, which involved two of the individuals listed in the PSI, Rick
Brignole and James Glenn. As Davis acknowledges, however, a sentencing court
may consider acquitted conduct in applying the Sentencing Guidelines and need
find facts supporting the sentence only by a preponderance of the evidence so long
as the sentence does not exceed the statutory maximum, which in Davis’s case it
did not. See United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005). In
any event, even without these two individuals, the number of victims identified at
trial exceeds ten.
1
To the extent Davis attempts to challenge the sentencing court’s determination of the
“actual loss” amount or its restitution order, those issues are outside the scope of the COA. See
Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (explaining that our review is
limited to those issues specified in the COA).
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Given the trial testimony establishing over 10 victims of Davis’s fraudulent
investment scheme, it was reasonable for Davis’s counsel to decide not to object to
the victim enhancement. Moreover, any objection to the 2-level victim
enhancement would have been meritless given that the government could have met
its burden of proof merely by pointing to the trial testimony. Failing to make a
meritless objection does not constitute deficient performance. Chandler v. Moore,
240 F.3d 907, 917 (11th Cir. 2001).
For the same reason, Davis also has not shown that his counsel’s alleged
error prejudiced him. Had Davis’s counsel objected to the 2-level enhancement,
the sentencing court would have been able to rely upon the trial testimony of the
victim witnesses, discussed above, to find that the 2-level enhancement applied.
Further, the government would have had the opportunity to present more evidence
of all of Davis’s victims, which clearly exceeded ten in number. Thus, Davis has
not shown a reasonable probability of a different outcome at his sentencing.2
2
The government’s motion to dismiss Davis’s appeal as moot is denied. Although Davis
completed his 36-month prison term while his § 2255 motion was pending in the district court,
he remains incarcerated under a different federal sentence in a separate criminal case and has not
yet served his three-year term of supervised release in this case. Thus, Davis’s total sentence has
not expired, and his appeal of the district court’s denial of his § 2255 motion to set aside that
total sentence is not moot. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 983 (1998)
(stating that, once a defendant’s sentence expired, “some concrete and continuing injury other
than the now-ended incarceration or parole—some ‘collateral consequence’ of the conviction—
must exist if the suit is to be maintained”); Dawson v. Scott, 50 F.3d 884, 886 n.2 (11th Cir.
1995) (rejecting mootness challenge to a § 2241 petition attacking the length of the petitioner’s
prison term because the petitioner was “still serving his term of supervised release, which [was]
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AFFIRMED.
part of his sentence and involves some restrictions on his liberty,” and success on the petition
could alter the length of his supervised release term).
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