Loretta Fergerson v. United States
694 F. App'x 685
| 11th Cir. | 2017Background
- Loretta Fergerson pleaded guilty to charges arising from submitting fraudulent tax returns prepared by Fast Tax Cash; the government presented evidence that Fast Tax Cash prepared 1,566 returns and a majority were fraudulent.
- At sentencing the government introduced 135 client folders with false identification documents and showed 118 refunds were paid from those folders.
- Fergerson was sentenced under the 2011 U.S. Sentencing Guidelines Manual and received a four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B) for an offense involving 50 or more victims.
- Amendment 726 (effective Nov. 1, 2009) expanded the definition of “victim” in § 2B1.1 to include individuals whose means of identification were used unlawfully.
- Fergerson filed a 28 U.S.C. § 2255 motion asserting ineffective assistance of counsel for failing to object (1) to use of the 2011 Guidelines on ex post facto grounds and (2) to the four-level 50-victim enhancement; the district court denied relief and the denial was appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not objecting to use of 2011 Guidelines on ex post facto grounds | Fergerson: 2011 manual expanded “victim” definition; using it retroactively increased punishment | Government: Even if counsel erred, Fergerson cannot show prejudice because facts support enhancement under pre-2011 standards | Court: No prejudicial error shown; § 2255 denial affirmed |
| Whether counsel was ineffective for not objecting to 4-level § 2B1.1(b)(2)(B) enhancement | Fergerson: Without the expanded definition, government could not prove 50+ victims | Government: Evidence (135 folders, 118 refunds) supports inference of 50+ victims by preponderance | Court: Evidence reasonably supports 50+ victims; no Strickland prejudice proved |
Key Cases Cited
- Osley v. United States, 751 F.3d 1214 (11th Cir. 2014) (standard of review for § 2255 and mixed question of law and fact on ineffective assistance)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective assistance test: performance and prejudice)
- Johnson v. Sec'y, DOC, 643 F.3d 907 (11th Cir. 2011) (objective reasonableness standard for counsel performance)
- Collins v. Youngblood, 497 U.S. 37 (U.S. 1990) (Ex Post Facto Clause prohibits retroactive increase in punishment)
- Peugh v. United States, 569 U.S. 530 (U.S. 2013) (use of Guidelines in effect at sentencing may raise ex post facto concerns; use older manual if sentence would be higher)
- United States v. Philidor, 717 F.3d 883 (11th Cir. 2013) (government must prove disputed sentencing facts by a preponderance; courts may draw reasonable inferences)