Huff v. United States, No. 10–3903.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: DAVID M. LAWSON
• Citation: 734 F.3d 600
• Parties: Donavon E. HUFF, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Docket Number: No. 10–3903.
• Decision Date: 05 November 2013

734 F.3d 600

Donavon E. HUFF, Petitioner–Appellant,
v.
UNITED STATES of America, Respondent–Appellee.

No. 10–3903.

United States Court of Appeals,
Sixth Circuit.

Argued: June 14, 2013.
Decided and Filed: Nov. 5, 2013.

[734 F.3d 602]

ARGUED:Michael M. Losavio, Louisville, Kentucky, for Appellant. Robert W. Kern, United States Attorney's Office, Cleveland, Ohio, for Appellee. ON BRIEF:Michael M. Losavio, Louisville, Kentucky, for Appellant. Robert W. Kern, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: McKEAGUE and DONALD, Circuit Judges; LAWSON, District Judge.^*

OPINION
DAVID M. LAWSON, District Judge.

Donavon Huff appeals the denial of his motion to vacate his sentence, which he filed under 28 U.S.C. § 2255. Huff had pleaded guilty to various fraud and identity theft charges under a plea agreement in which the parties agreed, among other things, that the November 1, 2002 Sentencing Guideline Manual would be used to calculate his sentencing guideline range. The sentencing court, however, used a later version, resulting in a higher-than-anticipated range, and sentenced Huff to a longer prison term. Huff filed a direct appeal raising a viable appellate issue, but his appellate lawyer, he says, gave him bad advice and talked him into dismissing the appeal, warning that the district judge might vindictively increase Huff's sentence on remand. The district court rejected Huff's ensuing ineffective-assistance-of-counsel claim without holding an evidentiary hearing. We believe that a hearing was necessary to address that claim properly, and it was error not to hold one. Therefore, we reverse the district court's order and remand for further proceedings.

I.

The defendant was indicted on January 17, 2007 and charged with one count of conspiracy in violation of 18 U.S.C. § 371,

[734 F.3d 603]

one count of identity theft in violation of 18 U.S.C. § 1028(a)(7), and five counts of access device fraud in violation of 18 U.S.C. § 1029(a)(2). On May 3, 2007, the defendant pleaded guilty to conspiracy, identity theft, and two counts of access device fraud with the benefit of a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(B). Huff hatched his fraudulent scheme in 2001 while he was employed at an insurance company and had access to customers' account information. He used that information to obtain credit cards and other lines of credit, and he employed a juvenile to create and process fraudulent cell phone contracts using the purloined information. The loss amount exceeded $350,000.

The plea agreement contained a stipulation by the parties that the Sentencing Guidelines Manual that was effective on November 1, 2002 applied to Huff. The parties calculated the defendant's Chapter 2 offense level at 22, and agreed that no other sentencing guideline adjustments other than those specified in the agreement applied. The parties' calculation did not include upward adjustments for either abuse of a position of trust under Guidelines section 3B1.3 or for the use of a minor under section 3B1.4. The plea agreement stated that the court would determine the defendant's eligibility for an acceptance of responsibility adjustment on the date of sentencing, but the parties agreed that if the court followed the parties' stipulations the total adjusted offense level would be 19. The plea agreement stated that the parties had no agreement as to the applicable criminal history category and that the criminal history category would be determined by the court after completion of a pre-sentence investigation by the United States Probation Department. The plea agreement contained an acknowledgment that sentencing recommendations are not binding on the sentencing court and that the court alone was responsible for determining the applicable sentencing range, whether there was any basis to depart from that range, and what sentence to impose.

The pre-sentence report (PSR) was prepared on July 2, 2007. The probation officer used the 2006 version of the Sentencing Guideline Manual, but stated that the 2002 and 2006 editions produced the same offense level computations. The PSR included a two-level upward adjustment under Guidelines § 3B1.3 for abuse of a position of trust that was not stipulated in the plea agreement. The probation officer applied the abuse-of-trust enhancement, reasoning that Huff used his position at the insurance company to obtain customers' private information and then misused that data to open credit lines. The PSR also included two additional two-level upward adjustments that were not stipulated: an adjustment under Guidelines § 2B1.11(b)(2)(A) for more than ten victims and an adjustment under Guidelines § 3B1.4 for the use of a minor. The PSR stated an adjusted offense level of 28 with a net offense level of 25 after acceptance of responsibility. The PSR calculated Huff's criminal history score at four points, resulting in a Criminal History Category of III. The criminal history score was based on two prior offenses. The first offense was forgery theft, for which the plaintiff was arrested on May 14, 2003. The second offense was attempted misuse of a credit card. The second offense occurred in July 2003, and the defendant was arrested on October 31, 2003. Huff had pleaded guilty to both offenses on January 5, 2004 and was sentenced for both offenses on February 10, 2004. The resulting sentencing range was 70 to 87 months.

Huff's attorney filed a sentencing memorandum objecting to the Criminal History Category contained in the PSR. He argued

[734 F.3d 604]

that the sentences for his two prior offenses ran concurrently with one another, and therefore should only be counted once. He also objected to the calculation of the offense level in the PSR and the application of the three two-level upward adjustments.

At the sentencing hearing, the prosecutor stated that the abuse-of-trust enhancement was not included in the plea agreement because the government believed that although the defendant held a supervisory position at the insurance company, his position did not add to his ability to commit the crimes. The district court asked the probation officer to comment on his application of that enhancement, and the probation officer indicated that he had used application note 2B, which states that the guideline applies to a “defendant who exceeds or abuses the authority of his or her position in order to obtain unlawfully or use without authority any means of identification.” That language was in the 2006 Guidelines Manual, but not the 2002 version. The district court found that “based upon the rationale provided by the probation officer here in open court it's clear the defendant did abuse a position of trust based upon his position as a supervisor in the Call Center of the ... [i]nsurance [c]ompany” and applied the abuse-of-trust enhancement. The district court sentenced the defendant to concurrent 60–month prison terms on all counts, to be followed by three years of supervised release.

After sentencing, Huff's trial counsel withdrew and Donald J. Malarcik was appointed as appellate counsel. Malarcik filed a timely notice of appeal, and raised three issues in the appellant's brief: (1) Huff's criminal history category was incorrectly calculated; (2) the upward adjustment for abuse of a position of trust was improper; and (3) the district court failed to state its reasons for the defendant's sentence with sufficient clarity to permit appellate review.

Huff averred in a declaration that after the government filed its response brief, Malarcik contacted him and told him that if he prevailed on appeal, his case would be remanded for re-sentencing by the district court. Malarcik allegedly explained that in his experience, the district court judge was unhappy when he was reversed and would express that unhappiness by imposing a sentence substantially greater than that originally imposed. Huff says that Malarcik strongly advised him to dismiss his appeal to avoid that prospect. Huff discussed the matter with his wife, Jamila Huff. Jamila also filed a declaration in which she avers that Malarcik told her that Huff had a “50–50 shot” that the district court would give the defendant a longer sentence. Huff says that he reasoned that the risk of punitive re-sentencing was too great and authorized Malarcik to dismiss the appeal. But he also insists that Malarcik never told him that the law prohibited a district court from increasing a sentence on remand as punishment for a successful appeal or that the appellate court could issue a remand that limited the re-sentencing to the issues raised on appeal.

On December 1, 2008, Mr. Malarcik filed a motion for voluntary dismissal of the appeal, which was granted two days later.

On January 30, 2009, Huff filed a motion to vacate his sentence under 28 U.S.C. § 2255, which he amended twice. The second amended motion was accompanied by declarations by Huff and his wife. The government responded on May 20, 2010, but did not include any affidavit or statement from Mr. Malarcik. The district court denied and dismissed the defendant's motion to vacate on July 14, 2010 without conducting an evidentiary hearing. The

[734 F.3d 605]

district court made four findings on its way to its conclusion that Huff failed to allege sufficient facts to entitle him to relief or a hearing on his claim. First, the district court found that the claim that the district court incorrectly calculated the defendant's criminal history score was not cognizable on collateral review because the defendant had not shown that the alleged mistakes constituted errors so egregious as to amount to a violation of due process or that the errors had a substantial, injurious effect on the proceedings. Second, the district court held that the defendant's claims were either procedurally defaulted or precluded by the voluntary dismissal of his appeal because the defendant did not show cause excusing his default and...