U.S. v. Hoyle

• Decision Date: 01 September 1994
• Docket Number: 93-5438,Nos. 93-5359,s. 93-5359
• Citation: 33 F.3d 415
• Parties: 94 Ed. Law Rep. 26 UNITED STATES of America, Plaintiff-Appellee, v. Charlene HOYLE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Cheryl McCullough BENTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 415

33 F.3d 415

94 Ed. Law Rep. 26

UNITED STATES of America, Plaintiff-Appellee, v. Charlene HOYLE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Cheryl McCullough BENTON, Defendant-Appellant.

Nos. 93-5359, 93-5438.

United States Court of Appeals, Fourth Circuit.

Argued March 11, 1994.

Decided Sept. 1, 1994.

ARGUED: Julie Ehrenberger Harris, Weinstein & Sturges, P.A., Charlotte, NC; Marshall Anthony Swann, Charlotte, NC, for appellants. Robert James Conrad, Jr., Asst. U.S. Atty., Charlotte, NC, for appellee. ON BRIEF: E. Fitzgerald Parnell, III, Weinstein & Sturges, P.A., Charlotte, NC, for appellants. Jerry W. Miller, U.S. Atty., Charlotte, NC, for appellee.

Before ERVIN, Chief Judge, HALL, Circuit Judge, and RONEY, Senior Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, sitting by designation.

Affirmed in part, dismissed in part, and vacated and remanded in part by published opinion. Chief Judge ERVIN wrote the opinion, in which Judge K.K. HALL and Senior Judge RONEY joined.

OPINION

ERVIN, Chief Judge:

Charlene Hoyle and Cheryl Benton are two of forty defendants charged with submitting false loan applications to Johnson C. Smith University ("JCSU") to obtain low interest student loans in violation of 18 U.S.C. Secs. 1001 and 371.

Hoyle entered a plea agreement on January 7, 1993 in which she stipulated that her offense involved a sum greater than $20,000.00 but less than $40,000.01. On April 1, 1993, Judge Robert D. Potter sentenced Hoyle to eight months imprisonment, three years supervised release, and restitution in the amount of $21,046.59. Hoyle challenges her conviction on this direct appeal, alleging ineffective assistance of counsel resulting from her attorney's negotiation of the plea agreement. For the reasons set forth below, we dismiss her appeal.

Benton pled guilty on January 26, 1993 to charges set forth in the Bill of Information, without a written plea agreement. A probation officer prepared her Presentence Report ("PSR"), which recommended adding interest to the amount of loss set forth in the indictment. On April 1, 1993, Judge Potter sentenced Benton to five years probation and restitution in the amount of $12,267.21, relying on the figures set forth in her PSR. Benton challenges the inclusion of interest and the calculation of the principal for purposes of determining her offense level under the Sentencing Guidelines. She also appeals the amount of restitution ordered. For the reasons set forth below, we vacate Benton's sentence and remand to the district court for resentencing, but we affirm the amount of restitution determined by the district court in its restitution order.

I.

Mary Bouler Hoyle, a financial officer at JCSU, provided more than 100 blank loan applications to her friends and family. She certified the applications of these non-students resulting in the disbursement of low interest student loans, which caused a loss to the U.S. government of over $500,000.

As part of this scheme, Charlene Hoyle prepared five fraudulent student loan applications between August 1990 and September 1991, resulting in her receipt of $17,010. Following her arraignment, Rodney Toth was appointed as Hoyle's counsel. On Toth's advice, Hoyle entered plea negotiations, in which interest was added to that figure, bringing the total to $21,046.59. Hoyle entered a plea agreement which stipulated the loss as greater than $20,000 but less than $40,000.01, adding six levels to the base offense level of four under the Sentencing Guidelines. The agreement also stipulated a two level increase for more than minimal planning and a two level reduction for acceptance of responsibility. The adjusted offense level set in the plea agreement was ten. The plea agreement also stated as follows:

8. The defendant is aware that the sentence to be imposed shall be in conformity with the Federal Sentencing Guidelines, and that a sentence imposed under the Guidelines is without parole. The defendant is further aware that the sentence has not yet been determined by the Court, that any estimate of the likely sentence received from any source is a prediction not a promise, and that the Court has final discretion to impose any sentence up to the statutory maximum. Nevertheless, the defendant knowingly and expressly waives the right to appeal whatever sentence is imposed on any grounds other than ineffective assistance of counsel, including any appeal right conferred by Title 18, United States Code, Section 3742. Similarly, the defendant agrees not to contest either the conviction or the sentence in any post-conviction proceeding including, but not limited to, any proceeding under Title 28, United States Code, Section 2255.

At her Rule 11 hearing on January 26, 1993, Hoyle stated that she understood the import of the plea agreement and that she was giving up her rights to appeal. When asked if "you are entirely satisfied with the services of your attorney in this matter," Hoyle responded that she was so satisfied. J.A. 31. She was later sentenced to eight months imprisonment, three years supervised release and restitution in the amount of $21,046.59.

Cheryl Benton also participated in the fraudulent loan scheme. She prepared four false loan applications, resulting in disbursements to her of $9,913.75. That figure is set forth in the Bill of Information. Benton also assisted her husband in completing fraudulent applications in his name, resulting in disbursements to him of $9,390. The amounts received by Benton's husband were attributed to her pursuant to U.S.S.G. Sec. 1B1.3.

Benton pled guilty, waiving a grand jury indictment, to the charges against her as set forth in the Bill of Information. A Presentence Report was later prepared that indicated that the amount attributable to her personally was $12,267.21 and to her through her husband was $11,567.61. The report makes clear that these figures include principal, as set forth in the Bill of Information, plus interest up to January 1, 1993.

Benton objected in writing to this determination of loss for sentencing purposes. She argued that interest should not be included and that the government's determination of principal is also incorrect. She asserts that the government's file showed disbursements of only $8,513.75, J.A. 44, that her receipts show checks for $4,486.69 and $4,159.52 totalling $8,582.46, J.A. 44-45, (while actually those two amounts equal $8,646.21,) and that she in fact received a total of $8,611.69, Appellants' Br. at 10. Benton does not make clear which of these three figures she claims to be the actual amount of loss.

At Benton's sentencing hearing, the district court determined that the figure in the Presentence Report was the most reliable and therefore assessed the loss at $23,834.82. Benton was sentenced to five years probation and to make restitution of $12,267.21.

II.

Hoyle claims ineffective assistance of counsel because Toth negotiated a plea agreement (1) that allowed her to appeal only on the basis of ineffective assistance of counsel and waived her right to appeal the sentence, (2) that stipulated an incorrect offense level based on an incorrect restitution figure, and (3) that failed to provide an agreed binding sentence under Fed.R.Crim.P. 11(e)(1)(C). She also bases her claim on Toth's failure to object to the prosecutor's refusal to request a downward departure on the basis of Hoyle's assistance.

To establish ineffective assistance of counsel, Hoyle must show (1) that Toth's performance fell below an objective standard of reasonableness, and (2) that Hoyle was prejudiced by the deficiency because it created a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. Smith v. Smith, 931 F.2d 242, 244 (4th Cir.1991). A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id.

Hoyle has brought her claim of ineffective assistance on direct appeal. Such claims, however, are best left to collateral review. United States v. Tatum, 943 F.2d 370, 379 (4th Cir.1991). Normally, a claim of ineffective assistance should be raised in a motion pursuant to 28 U.S.C. Sec. 2255 because "the record [on direct appeal] is usually inadequately developed. The record often reveals only ambiguous symptoms of a more complex set of relationships which cannot be adequately addressed on direct appeal." Tatum, 943 F.2d at 379. Where, however, "the ineffectiveness appears on the trial record itself, we will hear such a claim [on direct appeal] without prior evidentiary hearings." Id. at 380 (quoting United States v. Grandison, 783 F.2d 1152, 1156-67 (4th Cir.), cert. denied, 479 U.S. 845, 107 S.Ct. 160, 93 L.Ed.2d 99 (1986)). For a claim of ineffective assistance of counsel to be heard on direct appeal, it must "conclusively appear[ ] in the trial record itself that the defendant was not provided with effective representation." United States v. Hanley, 974 F.2d 14, 16 n. 2 (4th Cir.1992) (citing United States v. Mandello, 426 F.2d 1021 (4th Cir.1970)).

Hoyle argues that she raises the claim on direct appeal because that approach is the only option available to her under the plea agreement. She insists that paragraph 8 of the agreement prevents her from bringing a Sec. 2255 claim for ineffective assistance. That provision reads

[s]imilarly, the defendant agrees not to contest either the conviction or the sentence in any post-conviction proceeding including, but not limited to any proceeding under Title 28, United States Code, Section 2255.

The word "similarly" relates to the preceding clause which states

[n]evertheless, the defendant knowingly and expressly waives the right to appeal whatever sentence is imposed on any grounds other than ineffective assistance of counsel, including any appeal right conferred by Title 18, United States Code, Section 3742.

We interpret paragraph 8 of the plea agreement to mean...