Calkins v. United States

795 F.3d 896

Sandra Lee CALKINS, Petitioner–Appellant

v.UNITED STATES of America, Respondent–Appellee.

No. 14–1578.

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2015.

Filed: Aug. 4, 2015.

Rick E. Mattox, argued, Prior Lake, MN, for appellant.

Timothy C. Rank, AUSA, argued, Minneapolis, MN, for appellee.

Before RILEY, Chief Judge, BRIGHT and MURPHY, Circuit Judges.

Opinion

MURPHY, Circuit Judge.

Sandra Calkins pled guilty to bank fraud in violation of 18 U.S.C. § 1344. The district court¹ sentenced Calkins to 66 months imprisonment, five years of supervised release, and over 8.6 million dollars in restitution. We affirmed Calkins' sentence on direct appeal. She now brings this 28 U.S.C. § 2255 petition alleging ineffective assistance of counsel. The district court denied Calkins' petition, and we affirm.

At her plea hearing, Calkins admitted that she had acquired loans for her business by providing false financial information to both Central Bank in Eden Prairie and a number of individual investors, and she pled guilty to bank fraud in violation of 18 U.S.C. § 1344. Before sentencing Calkins had asserted that the total loss amount from the fraud was $1,162,000, but at her sentencing hearing she took responsibility for the $8,675,917.10 loss amount calculated in the presentence investigation report (PSR), asserting only that the PSR's calculation should be reduced based on interest payments she had made to the fraud victims. The district court rejected Calkins' argument, applied a 20 point increase to her offense level for a loss amount exceeding 7 million dollars, and calculated a guideline range of 78 to 97 months based on a total offense level of 28 and criminal history category I. Calkins' counsel argued for leniency under 18 U.S.C. § 3553(a), noting Calkins' advanced age and ability to pay restitution. The district court imposed a below guideline sentence of 66 months imprisonment and five years of supervised release. It also ordered $8,675,917.10 in restitution.

After we affirmed Calkins' sentence on direct appeal, Calkins brought a § 2255 petition alleging ineffective assistance of counsel. She argued, among other things, that her trial counsel should have challenged the loss amount calculated in the PSR and requested an evidentiary hearing to determine whether each of the individual investors whose losses were included in the total loss amount had relied on Calkins' fraudulent financial statements. The district court dismissed her § 2255 petition and denied a certificate of appealability.

We granted Calkins a certificate of appealability on whether her “counsel provided ineffective assistance by failing to obtain and present evidence related to loans by individual investors, and by not challenging the loss amount to the extent it was based on losses by investors who were not shown to have relied on the fraudulent financial statements.”

We review de novo “post conviction ineffective assistance claims brought under § 2255 ” and the “underlying findings of fact for clear error.” Tinajero–Ortiz v. United States, 635 F.3d 1100, 1103 (8th Cir.2011). In order to prevail, Calkins must show that her “attorney's performance fell below a professional objective standard of reasonableness” and that she “was prejudiced.” Etheridge v. United States, 241 F.3d 619, 622 (8th Cir.2001) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). We “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” and when “determining whether counsel's representation was deficient, a court must avoid second guessing trial strategy.”Johnson v. United States, 278 F.3d 839, 842 (8th Cir.2002).

Calkins argues that at sentencing, her trial counsel should have contested the PSR's loss amount calculation and requested an evidentiary hearing rather than concentrating on a leniency argument based on the § 3553(a) factors. The record establishes, however, that Calkins' trial counsel reviewed the government's evidence on loss before recommending that she request leniency under § 3553(a) rather than “risk losing a ... reduction for acceptance of responsibility by disputing” loss amount. See United States v. McClain, 149 Fed.Appx. 549, 551 (8th Cir.2005). The strategy recommended to Calkins was effective. By contesting loss amount and assuming her assertions were all true, Calkins could at most have secured a two point decrease in her offense level. See U.S.S.G. § 2B1.1(b)(1)(J)-(K). In contrast, by making the strategic choice to accept responsibility and request lenience under § 3553(a), Calkins obtained a three point offense level decrease and a 12 month downward variance.

The dissent argues that Calkins' attorney was ineffective because counsel did not review certain victim impact statements underlying the government loss amount calculations.² The record establishes, however, that the government offered to meet “with Ms. Calkins, [her attorney], and the probation officer ... to lay out what [the] evidence is for everybody to see.” Nevertheless, Calkins chose not to attend that meeting, and she has not disputed on appeal that “defense counsel met with the government and reviewed the government's evidence.” Thus, the dissent's assertion that Calkins' attorney provided ineffective assistance by failing to review evidence cannot be accepted as accurate because it is “contradicted by the record.” Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995).

Given the “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” Johnson, 278 F.3d at 842, we conclude that Calkins has not met her “burden of proving that ... [her] lawyer's actions were not valid trial strategy.” Thai v. Mapes, 412 F.3d 970, 979 (8th Cir.2005). For these reasons we affirm the judgment of the district court.

BRIGHT, Circuit Judge, dissenting.

I respectfully dissent. Because a lawyer's failure to investigate the facts underlying a summary in a Presentence Investigation Report (PSR) can amount to ineffective assistance of counsel and the record does not clearly establish Sandra Calkins' (Calkins) trial counsel investigated the facts underlying the number of victims and the loss amounts to individual investors as summarized in the PSR, I would reverse and remand for an evidentiary hearing because “[a]bsent ... clarity, an evidentiary hearing [on a 28 U.S.C. § 2255 motion] is required .” Latorre v. United States, 193 F.3d 1035, 1038 (8th Cir.1999) (emphasis added).

I. FACTS

Calkins pled guilty to one-count bank fraud in violation of 18 U.S.C. § 1344. In her plea, Calkins admitted to preparing and submitting false bank statements for her company, causing the bank to suffer a loss of approximately $1.57 million. Calkins further admitted that approximately 13 individual investors had seen faulty financial documents, causing $562,000 in losses. At the plea hearing, Calkins stated “[t]hat would be the maximum number of [individual investors] who may have relied on [the faulty financial] information.”

Before issuing the PSR, a probation officer interviewed Calkins and advised her to submit an acceptance of responsibility statement. In the statement, Calkins admitted to submitting fraudulent financial statements to the bank and admitted: “There were a number of other smaller investors who may or may not have relied upon false information from me. At this point, I simply do not have the documentation to be sure exactly which people were defrauded, but believe that number is in excess of ten investors.”

The probation officer issued a PSR, summarizing a list of 44 individual investors who were allegedly victims of Calkins' fraud with approximately $8.8 million in losses (hereinafter, “the summary”). As admitted by the government, the individual investor information originated from victim impact statements submitted by alleged victims to the probation officer. At the sentencing hearing, the government described the parties' access to the victim impact statements:

The basis for the numbers in [the summary], your Honor, as I understand it, are from Victim Impact Statements that have been presented to Probation and not provided to the parties. And, so, in terms of what the Government can show with respect to its numbers, it's based on interviews with the victims. And I know that that information has been supplemented by information provided by Probation through Victim Impact Statements. We don't have access to the Victim Impact Statements.

(Emphasis added).

Calkins' trial counsel objected to the summary—for both the number of victims and the loss amounts. At this time, Calkins “believe[d] that only 14 victims were defrauded based on her misrepresentations of [Calkins' company] financials” and, thus, Calkins opined the loss amount was only $1.16 million to individual investors.

After submitting objections, Calkins' trial counsel attended a meeting with the government to discuss the parties' disagreements over the PSR. Calkins elected not to attend the meeting. There is no evidence in the record regarding discussions that took place or evidence that was reviewed by Calkins' trial counsel during the meeting.³

After the meeting, Calkins' counsel abandoned its objection to the summary for both the victim number and the loss amounts—capitulating to the government's view that “relevant conduct” included “[a]nyone that invested anything from the day the bank received false information ... because the very existence of the business depended on the fraud.” (Emphasis added). Calkins' trial counsel further informed the district court and the probation officer that she had met with Calkins, Calkins had reviewed the PSR, and Calkins acknowledged the number of victims under the government's definition. At the sentencing hearing, Calkins' trial counsel stated that Calkins was adopting the PSR's offense-level computations, with some minor exceptions. Calkins'...