Blayne Davis v. United States, 696 F. App'x 431

Davis, a pro se federal prisoner, was convicted by a jury of three counts of wire fraud for running a Ponzi scheme and sentenced to 36 months’ imprisonment and three years’ supervised release.
He filed a 28 U.S.C. § 2255 motion claiming ineffective assistance of counsel for failing to object at sentencing to a 2‑level Sentencing Guidelines enhancement under U.S.S.G. § 2B1.1(b)(2)(A) (10–49 victims).
At trial, nine witnesses testified they were defrauded by Davis and identified additional victims (family, friends, coworkers); the trial record identified at least 18 investors who lost money.
The Guidelines commentary defines “victim” as any person who sustained any part of the actual loss, and the government must prove disputed sentencing facts by a preponderance of the evidence.
Davis noted the jury acquitted him of two counts involving two listed victims, but sentencing courts may consider acquitted conduct and rely on trial evidence by a preponderance standard.
The district court denied relief; this Court granted a COA limited to whether counsel was ineffective for not objecting to the 2‑level victim enhancement and affirmed the denial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was deficient for not objecting to the § 2B1.1(b)(2)(A) 2‑level victim enhancement	Davis: counsel should have objected because the victim count was unsupported given acquittals and conflicting testimony about recoupment	Government/Davis’s counsel: trial testimony identified >10 victims; any objection would be meritless because government could prove victim count by trial evidence	Counsel was not deficient; failing to raise a meritless objection is not ineffective assistance
Whether Davis was prejudiced by counsel’s failure to object	Davis: but for the failure, the enhancement might not have applied and sentence could differ	Government: even if objected, court could rely on trial testimony and additional evidence to find >10 victims by preponderance	No prejudice; no reasonable probability of a different sentence

Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance of counsel)
United States v. Rodriguez, 732 F.3d 1299 (11th Cir. 2013) (government bears preponderance burden for disputed sentencing facts)
United States v. Sepulveda, 115 F.3d 882 (11th Cir. 1997) (estimates permitted but courts must not speculate to impose harsher guideline treatment)
United States v. Saunders, 318 F.3d 1257 (11th Cir. 2003) (sentencing courts may base findings on trial evidence)
United States v. Lee, 427 F.3d 881 (11th Cir. 2005) (victims who later recoup are still "victims" for § 2B1.1 purposes)
United States v. Duncan, 400 F.3d 1297 (11th Cir. 2005) (sentencing court may consider acquitted conduct if sentence within statutory maximum)
Chandler v. Moore, 240 F.3d 907 (11th Cir. 2001) (declining to find deficient performance for failing to make meritless objections)
Spencer v. Kemna, 523 U.S. 1 (1998) (requirements for mootness when sentence expired)
Murray v. United States, 145 F.3d 1249 (11th Cir. 1998) (COA scope limits review)
Dawson v. Scott, 50 F.3d 884 (11th Cir. 1995) (supervised‑release term can preserve a live controversy for collateral attacks)