United States v. Michael Dunkel , 685 F. App'x 234 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7356
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL BRIAN DUNKEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:13-cr-00220-GBL-1; 1:15-cv-00397-GBL)
Submitted: March 27, 2017 Decided: April 19, 2017
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Richard Klugh, LAW OFFICE OF RICHARD C. KLUGH, Miami, Florida,
for Appellant. Ryan Scott Faulconer, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Brian Dunkel appeals the district court’s order
denying relief on his 28 U.S.C. § 2255 (2012) motion. The order
is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B)
(2012). A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2012). When the district
court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the
constitutional claims is debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is
debatable, and that the motion states a debatable claim of
the denial of a constitutional right. Slack, 529 U.S. at 484-
85.
Dunkel seeks a certificate of appealability to challenge
his conviction following a guilty plea under 18 U.S.C. § 1031
(2012), and to argue that his trial counsel provided
constitutionally deficient assistance by failing to properly
advise him about § 1031, failing to inform him that his guilty
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plea would require him to register as a sex offender,
stipulating to a loss figure unsupported by the evidence, and
failing to object to the Government’s introduction of two
victim-impact witnesses. Section 1031 prohibits schemes to
defraud the United States in any procurement of services or any
contract, subcontract, or other form of federal assistance. To
invoke § 1031, the value of federal assistance must be $1
million or more.
Dunkel argues that his conduct does not satisfy the $1
million jurisdictional requirement of § 1031 because it requires
a single $1 million prime contract or subcontract and his scheme
did not involve such a contract. Dunkel has conceded that he
procedurally defaulted on his § 1031 claim by failing to raise
it on direct review. He may therefore raise the claim in this
postconviction proceeding only if he can establish actual
innocence or cause and prejudice. See Bousley v. United States,
523 U.S. 614, 622 (1998). Actual innocence requires a showing
that “it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.” Schlup
v. Delo, 513 U.S. 298, 327 (1995). “The existence of cause for
a procedural default must turn on something external to the
defense, such as . . . a denial of effective assistance of
counsel.” United States v. Mikalajunas, 186 F.3d 490, 493 (4th
Cir. 1999) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)).
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We conclude that Dunkel cannot establish actual innocence.
Dunkel stipulated in his plea agreement that he had posed as an
employee of Company B, which received contracting preferences
from the Small Business Administration, to take advantage of
those preferences when bidding on NASA contracts. He further
agreed that the scheme was “all in relation to a procurement for
services valued at more than $1,000,000, including but not
limited to [Contract A86B].” By that admission, Dunkel’s
conduct fell within the scope of § 1031.
Even absent Dunkel’s stipulations, his argument that § 1031
requires a single $1 million prime contract or subcontract
fails. Section 1031 is not limited to prime contracts; by its
terms, it applies to the procurement of services and “other
form[s] of Federal assistance” worth $1 million or more. 18
U.S.C. § 1031. Moreover, Dunkel has not shown that the
Government did not rely on a single contract worth $1 million.
Even if the Government aggregated several contracts, however, we
have recognized that § 1031 should not be read to insulate
“pervasive fraud on a multi-million dollar defense project . . .
if it were perpetrated in multiple separate subcontracts, each
involving less than the jurisdictional amount.” United States
v. Brooks, 111 F.3d 365, 369 (4th Cir. 1997). We therefore
conclude that Dunkel has not established actual innocence. We
reject his request for a hearing on actual innocence because,
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contrary to Dunkel’s contention, the circumstances of United
States v. Bousley do not apply here. See 523 U.S. at 623.
We also conclude that Dunkel has failed to make a showing
of cause and prejudice to overcome his procedural default.
Dunkel argues that cause and prejudice exists because his
attorney provided ineffective assistance by failing to raise his
§ 1031 arguments.
A claim of ineffective assistance of counsel requires a
defendant to show: (1) “that counsel’s performance was
deficient,” and (2) “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). A defendant proves deficient performance by showing
that “counsel’s representation fell below an objective standard
of reasonableness.” Id. at 688-89. To prove prejudice if the
defendant entered a guilty plea, the defendant “‘must show that
there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.’” Hooper v Garraghty, 845 F.2d 471, 475 (4th
Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Because Dunkel’s arguments about § 1031 lack merit, he
cannot show that his counsel acted unreasonably. Accordingly,
Dunkel cannot overcome the procedural default of his § 1031
claim and both that claim and his ineffective assistance claim
based on § 1031 fail.
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Dunkel also appeals the district court’s denial of three of
his other ineffective assistance of counsel claims. First,
Dunkel argues that his counsel should have advised him that his
conviction would require him to register under the Sex Offender
Registration and Notification Act (SORNA), 42 U.S.C. § 16913
(2012). However, the “requirements of [SORNA] apply to all sex
offenders, including sex offenders convicted of the offense for
which registration is required prior to the enactment of that
Act.” 28 C.F.R. § 72.3. Because SORNA retroactively applied to
Dunkel before his plea and conviction, the plea did not trigger
SORNA registration. Thus, Dunkel’s counsel did not act
unreasonably when he advised Dunkel about the plea without
discussing SORNA. Moreover, because the registration
requirement would have applied to Dunkel regardless of a
conviction, counsel’s failure to advise Dunkel about SORNA did
not prejudice Dunkel.
Second, Dunkel argues that his counsel provided ineffective
assistance by advising him to stipulate to a loss figure under
U.S. Sentencing Guidelines Manual § 2B1.1 (2016) despite a lack
of evidence to support it. In the plea agreement, Dunkel agreed
that he and Company B gained at least $2.9 million and that his
gain could be used as the loss figure for sentencing. Gain can
serve as a proxy for loss where calculating loss would be
difficult. U.S. Sentencing Commission, Loss Primer
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§ 2B1.1(b)(1) (citing United States v. Vrdolyak, 593 F.3d 676,
681 (7th Cir. 2010) (reversing sentencing judge’s refusal to
consider gain as proxy for loss where a “probable” but difficult
to calculate loss existed)). Here, calculating the loss would
have been difficult because the parties could not have
sufficiently determined the loss experienced by the company that
would have contracted with NASA absent Dunkel’s fraud. Thus,
the parties appropriately agreed to determine how much Dunkel
gained from his fraud rather than how much an unknown company
lost from that fraud. The parties then determined the gain
based on Dunkel’s admission that he gained at least $2.9 million
from his scheme. Thus, we conclude that Dunkel’s counsel did
not provide deficient performance by advising Dunkel to
stipulate to the loss figure in the plea agreement. We further
conclude that the stipulation did not prejudice Dunkel, who
would have been subject to the same method of loss calculation
if he had been convicted without the plea agreement.
Third, Dunkel argues that his counsel provided ineffective
assistance by failing to object when the prosecution introduced
additional evidence of loss at sentencing by calling two
witnesses to testify about the impact of the fraud on the
government. According to Dunkel, calling the witnesses to
testify breached the plea agreement by circumscribing the agreed
to loss figure. The prosecution, however, did not breach the
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plea agreement because it did not use the additional evidence to
advocate for a greater enhancement under USSG § 2B1.1. The plea
agreement also permitted the parties to make other arguments
about sentencing at the hearing. Thus, counsel did not perform
unreasonably, and Dunkel cannot establish ineffective assistance
of counsel.
We have independently reviewed the record and conclude
that Dunkel has not made the requisite showing to appeal the
denial of his § 2255 motion. Accordingly, we deny a
certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
DISMISSED
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