DO NOT PUBLISH
Blayne Davis, a
I. INEFFECTIVE ASSISTANCE
To prevail on an ineffective assistance of counsel claim, a defendant must show that: (1) his counsel's performance was deficient, and (2) he suffered prejudice as a result of the deficient performance.
For the reasons below, the district court correctly denied Davis's ineffective assistance claim because Davis did not establish either deficient performance or prejudice as to the application of the victim enhancement under U.S.S.G. § 2B1.1(b)(2)(A).
II. DAVIS'S CLAIM
Davis's ineffective assistance claim hinges on his counsel's failure to object to a 2-level enhancement based on the number of victims of Davis's Ponzi scheme. At the time of Davis's sentencing, U.S.S.G. § 2B1.1(b)(2)(A) provided that a defendant's offense level was increased by 2-levels if the offense involved 10 or more, but fewer than 50, victims. U.S.S.G. § 2B1.1(b)(2)(A) (2011). The commentary to § 2B1.1(b)(2)(A) defined "victim" as "any person who sustained any part of the actual loss." U.S.S.G. § 2B1.1 cmt. n.1. The commentary provided that "actual loss" was "the reasonably foreseeable pecuniary harm that resulted from the offense." U.S.S.G. § 2B1.1 cmt. n.3(A)(i).
When a defendant challenges the factual basis for a sentencing enhancement, such as the 2-level enhancement under § 2B1.1(b)(2)(A), the government has the burden to prove the disputed fact by a preponderance of the evidence.
Here, Davis has not shown that his counsel's failure to object to the 2-level victim enhancement constituted deficient performance. At trial, nine witnesses— Dana Welk, James Glenn, Richie Anderson, Jaret Glenn, Chris Anderson, Brian Beck, Ricardo Brignole, Mark Jack, and Robin Minall—testified that Davis defrauded them personally through his Ponzi scheme. In addition, some of these witnesses identified other victims, mostly family, friends, and coworkers, who also lost money in Davis's scheme.
In all, trial testimony identified at least 18 individuals who invested money in Davis's fraudulent scheme, including Betty Anderson, Chris Anderson, Richie Anderson, Brian Beck, Matthew Brice, Rick Brignole, James Glenn, Jaret Glenn, Stuart Glenn, Mike Hindle, Todd Iverson, Jay Jack, Mark Jack, Jeremy Light, Robin Minall, JonMichael Perkins/Mantelli, Steve Vandyke, and Dana Welk. Most of these individuals were also listed as victims in Davis's presentence investigation report. While trial testimony established that some of these individuals recouped their money, some testified that they lost money, and some said that Davis repaid them all or part of their investments, but only after they hired a lawyer who threatened to sue Davis and negotiated a settlement.
Davis complains that the jury acquitted him of the conduct charged in Counts 1 and 2, which involved two of the individuals listed in the PSI, Rick Brignole and James Glenn. As Davis acknowledges, however, a sentencing court may consider acquitted conduct in applying the Sentencing Guidelines and need find facts supporting the sentence only by a preponderance of the evidence so long as the sentence does not exceed the statutory maximum, which in Davis's case it did not.
Given the trial testimony establishing over 10 victims of Davis's fraudulent investment scheme, it was reasonable for Davis's counsel to decide not to object to the victim enhancement. Moreover, any objection to the 2-level victim enhancement would have been meritless given that the government could have met its burden of proof merely by pointing to the trial testimony. Failing to make a meritless objection does not constitute deficient performance.
For the same reason, Davis also has not shown that his counsel's alleged error prejudiced him. Had Davis's counsel objected to the 2-level enhancement, the sentencing court would have been able to rely upon the trial testimony of the victim witnesses, discussed above, to find that the 2-level enhancement applied. Further, the government would have had the opportunity to present more evidence of all of Davis's victims, which clearly exceeded ten in number. Thus, Davis has not shown a reasonable probability of a different outcome at his sentencing.