United States v. Merritt

102 F. App'x 303
CourtCourt of Appeals for the Fourth Circuit
DecidedJune 25, 2004
Docket02-7206, 02-7207, 02-7208, 02-7209
StatusUnpublished
Cited by4 cases

This text of 102 F. App'x 303 (United States v. Merritt) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Merritt, 102 F. App'x 303 (4th Cir. 2004).

Opinions

Affirmed by unpublished PER CURIAM opinion. Judge NIEMEYER wrote a separate concurring opinion.

OPINION

PER CURIAM.

A jury in the United States District Court for the Eastern District of Virginia convicted David Merritt on seventy-six counts of an indictment for offenses including mail fraud, false statements in a bankruptcy proceeding and fraudulent transfer of bankruptcy assets. Thereafter, Merritt waived indictment and venue and pled guilty to six new counts, including mail fraud and false statements to a financial institution, arising from illegal acts committed in the Middle District of Florida. The two cases were consolidated for sentencing and the district court imposed a 140-month term of imprisonment and ordered Merritt to pay restitution. On direct review, we affirmed Merritt’s conviction and sentence. See United States v. Merritt, 205 F.3d 1335 (table), 2000 WL 148214 (4th Cir.2000) (per curiam) (unpublished).

Merritt moved for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. In his motion, Merritt asserted that (1) he was improperly sentenced on inaccurate information; (2) he was sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (3) the government engaged in prosecutorial misconduct based on misrepresentations it made at sentencing; (4) the government engaged in prosecutorial misconduct by moving for an upward departure; (5) he received ineffective assistance of counsel both during plea negotiations and sentencing; (6) the government engaged in prose-[305]*305cutorial misconduct in informing him of his sentencing exposure; and (7) the court violated Fed.R.Crim.P. 11(e). The district court dismissed the first four claims as procedurally defaulted, and denied relief on the merits of each remaining claim. On appeal, we granted Merritt two certificates of appealability — one based on his ineffective assistance of counsel during plea negotiations before trial; the other based on ineffective assistance of counsel at sentencing — but dismissed the remaining claims. Having now considered the ineffective assistance of counsel claims on the merits, we find that they fail for the reasons that follow.

I.

In July 1997, Merritt was indicted on seventy-seven counts including mail fraud, making false statements during a bankruptcy proceeding and fraudulent transfer of assets. Prior to trial, Merritt’s attorney and the government settled on a plea agreement whereby Merritt would plead guilty to three counts and receive a specific sentence, pursuant to Fed.R.Crim.P. 11(e)(1)(C) (1997),1 of eighteen months’ imprisonment. In deciding whether to accept the plea offer, Merritt asserts that his counsel (hereinafter “trial counsel”) informed him that he would face a forty-one month sentence if convicted on the indictment. Purportedly relying on this information, Merritt maintains he rejected the government’s plea offer and decided to go to trial.

At trial, in December 1997, the jury convicted Merritt of seventy-six of the seventy-seven counts upon which he was indicted.2 The initial Presentence Report (“PSR”), which was amended several times prior to sentencing, calculated a sentencing range of 41-51 months under the United States Sentencing Guidelines. On March 9, 1998, Merritt’s probation officer amended the PSR based on new information and calculated a sentencing range of 97-121 months.

On March 10, 1998, the day that sentencing was to take place, Merritt waived venue and pled guilty to a new six count criminal information based on separate fraudulent conduct that occurred in the Middle District of Florida. In the plea agreement, Merritt agreed to waive his right to appeal his sentence on both the original seventy-six and the six new counts. After entering the plea agreement, the district court consolidated the cases for sentencing. Prior to the sentencing hearing, the government moved for an upward departure based on aggravating circumstances.

Meanwhile, during his review of the original PSR, Merritt allegedly discovered several factual inconsistencies. Specifically, Merritt noticed the PSR’s “Victim Impact” section stated that his scheme defrauded victims of $1,742,233.38, but acknowledged that “some of the victims have received some funds through the bankruptcy process,” thus leaving $1,369,625.90 attributed to Merritt as actual loss for the purpose of restitution. Of this actual loss, Merritt asserted there were inaccuracies which led to an overstatement of approximately $480,000. Merritt sent four letters to trial counsel prior to sentencing regarding these inaccuracies, directed trial counsel to relevant witnesses who could attest to the errors, and requested a meeting to discuss these matters further. Trial counsel, however, never responded to the letters. Instead, [306]*306trial counsel subpoenaed some of the identified witnesses, although he declined to have them testify at Merritt’s sentencing hearing. Merritt alleges that on the morning of April 29, 1998, the day of sentencing, trial counsel told him “not to worry, I have your objections covered.” At the sentencing hearing, however, trial counsel did not object to the actual loss amounts calculated in the PSR; instead, he conceded that they were correct. At the conclusion of the sentencing hearing, the district court imposed a 140-months term of imprisonment and ordered restitution.

On direct appeal, we affirmed Merritt’s conviction and sentence. Merritt, 2000 WL 148214, at *3. Merritt filed a motion pursuant to 28 U.S.C. § 2255, and the district court denied all claims for relief. This appeal ensued, and, as noted above, we granted certificates of appealability on Merritt’s two ineffective assistance of counsel claims while dismissing his remaining claims.

II.

We analyze Merritt’s ineffectiveness of counsel claims under the familiar test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).3 To prevail, Merritt must show (1) “counsel’s performance fell below an objective standard of reasonableness,” as determined by comparison to “prevailing professional norms,” id. at 688, 104 S.Ct. 2052, and (2) he was prejudiced by his attorney’s deficient conduct, i.e., but for the errors, there is a reasonable probability that the outcome of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052.

Merritt asserts that his trial counsel was ineffective when providing him pre-trial advice during plea negotiations regarding his potential sentencing exposure if he was found guilty at trial. Merritt also argues that his trial counsel was ineffective because counsel failed to object to the actual loss amounts detailed in the PSR, which the district court used in determining sentence. With regard to the first claim, we find that Merritt has failed to demonstrate that trial counsel’s performance fell below an objective standard of reasonableness.

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Related

United States v. David Mayhew
995 F.3d 171 (Fourth Circuit, 2021)
Williams v. Jones
571 F.3d 1086 (Tenth Circuit, 2009)
Merritt v. United States
543 U.S. 1076 (Supreme Court, 2005)

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Bluebook (online)
102 F. App'x 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-merritt-ca4-2004.