United States v. John R. Thompson

463 F. App'x 887
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 2, 2012
Docket10-14186
StatusUnpublished
Cited by5 cases

This text of 463 F. App'x 887 (United States v. John R. Thompson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. John R. Thompson, 463 F. App'x 887 (11th Cir. 2012).

Opinion

PER CURIAM:

John R. Thompson appeals his convictions and sentences for bank fraud, wire fraud, and mail fraud, as well as conspiracy to commit bank, wire, and mail fraud. Thompson argues that the district court erred in (1) denying his motion for a new trial based on his claim of ineffective assistance of counsel, (2) calculating the total attributable loss amount at sentencing, (3) enhancing his sentence for targeting a vulnerable victim under U.S.S.G. § 3A1.1, and (4) applying an obstruction of justice sentence enhancement, pursuant to U.S.S.G. § 3C1.1, upon finding that Thompson committed perjury at trial.

I. BACKGROUND

Thompson was an attorney in Swains-boro, Georgia, who frequently advised Brian Steptoe, an owner of a construction company, and his wife, Natasha Steptoe, on a variety of real estate issues. The Steptoes’ business consisted of purchasing parcels of land with investors and building homes on them for sale.

According to trial testimony, the Step-toes, with financing from various investors, purchased land located at 54 Spivey Lane in Swainsboro and began construction on a home. Shortly after they completed the home in mid-2007, Brian Steptoe enlisted Hurlon Wadley, an individual who was legally disabled and could not read or write, to unwittingly purchase the property. Without Wadley’s consent, Thompson falsified information on a HUD-1 Form, 1 so that Wadley would receive a home mortgage loan from Bank of America (BOA) for the purchase of 54 Spivey Lane. Based on the fraudulent HUD-1 Form prepared by Thompson, BOA approved the loan.

Following an investigation, a grand jury returned a five-count second superceding indictment in June 2010. At trial, a jury *889 convicted Thompson of bank, wire, and mail fraud, and conspiracy to do the same.

II. DISCUSSION

A. Motion for a New Trial

Thompson argues that the district court erred in denying his motion for a new trial based on ineffective assistance of counsel. We review the denial of a motion for a new trial for abuse of discretion. United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir.2005). To prevail on an ineffective assistance claim, a defendant must demonstrate both that (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. 2 Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In this case, Thompson argues his trial counsel performed deficiently in handling a motion for acquittal at the close of evidence at trial. According to Thompson, his trial counsel orally raised a motion for acquittal on all counts but argued only the merits of the motion as it related to Count Two of the indictment. Because his counsel completely neglected the remaining four counts, Thompson contends that the district court misconstrued the motion as seeking acquittal as to Count Two only. His counsel purportedly compounded the effects of his deficient performance by failing to reassert the motion in its entirety when the district court moved on without specifically addressing the other counts. Thompson claims that this allegedly deficient performance was prejudicial to his defense because it deprived him of (1) the possibility that the district court would have acquitted him on all counts, and (2) the opportunity to appeal an adverse ruling — in the event the district court denied the motion — addressing all of the remaining counts underlying the conviction.

Thompson’s argument fails because it falls well-short of showing that the claimed deficient performance prejudiced his defense. To establish prejudice, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Thompson first contends that counsel’s failure to argue for acquittal on all counts prejudiced his defense because but for the deficient performance, “it is probable that ... the [district court] may have very well entertained a different disposition to the motion for acquittal than ultimately resulted.” In so arguing, Thompson provides no specifics to support his conclusory and entirely speculative position. Moreover, the contention that it is “probable” the district court “may” have considered a different disposition does not establish a “reasonable probability” that the outcome at trial would have been different.

Thompson next argues that his trial counsel’s deficient performance prejudiced his defense because the failure to fully argue the motion for acquittal leaves him without an appealable adverse ruling on the remaining counts. In this Circuit, however, “when the claimed error of counsel occurred at the guilt stage of a trial (instead of on appeal) we [ ] gauge prejudice against the outcome of the trial: whether there is a reasonable probability *890 of a different result at trial, not on appeal.” Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir.2006). While he acknowledges that his counsel’s purported error occurred at trial, Thompson presents no argument as to why the error’s prejudicial impact should be measured with reference to his appeal, rather than in accordance with our general rule. 3 We therefore find that Thompson has failed to demonstrate prejudice and conclude that the district court did not err in denying the motion for a new trial.

B. Calculation of Loss Attributable

Thompson argues that the district court erred in calculating the total loss attributable to his criminal conduct at sentencing. Under U.S.S.G. § 2B1.1(b)(1), a defendant’s total offense level is increased by 14 levels if the offense involved a loss between $400,000 and $1,000,000. U.S.S.G. § 2B1.1(b)(1)(H). The district court in this case calculated the applicable guideline range of 70 to 87 months based on a total loss amount attributable of $434,597.54, after finding that BOA lost $319,800 and investors Justin Jay and Bruce Lyons lost $71,597.54 and $43,200, respectively. Although the district court imposed a below-range sentence of 66 months, Thompson challenges the factual findings underlying the calculation of BOA’s and Jay’s losses.

The district court’s factual findings for purposes of sentencing may be based on, among other things, evidence heard during trial, undisputed statements in the Presentence Investigation Reports (PSIs), or evidence presented during the sentencing hearing. United States v. Hamaker, 455 F.3d 1316, 1338 (11th Cir.2006).

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Related

Com. v. Little, K.
2021 Pa. Super. 7 (Superior Court of Pennsylvania, 2021)
In re Thompson
778 S.E.2d 226 (Supreme Court of Georgia, 2015)
in the Matter of John R. Thompson
Supreme Court of Georgia, 2015

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Bluebook (online)
463 F. App'x 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-r-thompson-ca11-2012.