Sandra Calkins v. United States, 2015 U.S. App. LEXIS 13537

Background

Sandra Calkins pled guilty to one-count bank fraud under 18 U.S.C. § 1344 after admitting she submitted false financial information to a bank and to individual investors.
The PSR attributed approximately $8.675 million in losses (44 individual investors) to Calkins; at plea she acknowledged roughly $1.57M (bank) and $562K (about 13 individual investors).
At sentencing Calkins accepted responsibility and counsel pressed for a § 3553(a) variance rather than vigorously contesting the PSR loss calculation; the court applied a 20-level increase for loss > $7M and imposed a 66-month sentence (below Guideline range) plus restitution of $8,675,917.10.
Calkins filed a § 2255 motion alleging ineffective assistance of trial counsel for failing to investigate and challenge the PSR’s investor list and loss amounts and for not requesting an evidentiary hearing; the district court denied relief and a COA; this court granted a COA limited to counsel’s failure to obtain/present investor-related evidence and challenge loss for investors not shown to have relied on fraudulent statements.
The panel majority affirmed denial of § 2255 relief, concluding counsel’s strategy to accept responsibility and seek a § 3553(a) variance was reasonable and counsel reviewed the government’s evidence; the dissent would remand for an evidentiary hearing, finding the record does not conclusively show counsel investigated the victim-impact statements used to generate the PSR summary.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to investigate and challenge PSR loss attribution to individual investors	Calkins: counsel failed to obtain/review victim impact statements and ‘‘blindly’’ accepted government loss figures, causing higher Guidelines loss and longer sentence	Government/majority: counsel reviewed government evidence, reasonably chose strategy to accept responsibility and seek § 3553(a) leniency to obtain greater net benefit than contesting loss	Majority: No ineffective assistance — counsel’s strategic choice was reasonable and record shows review of government evidence; petition denied
Whether an evidentiary hearing was required on the § 2255 claim	Calkins: factual disputes over whether counsel investigated the victim statements warrant an evidentiary hearing	Government/majority: record establishes counsel reviewed proof and made a strategic choice; no hearing required	Majority: No hearing required; dissent: remand for hearing because record does not conclusively refute Calkins’ allegations
Whether disputing loss would have forfeited acceptance-of-responsibility credit	Calkins: challenging non-relevant conduct would have been nonfrivolous and consistent with acceptance if done in good faith	Government/majority: contesting loss risked losing acceptance credit; counsel reasonably avoided that risk	Majority: Counsel’s approach yielded a larger net reduction (acceptance + variance) and was strategic and reasonable
Whether PSR loss could properly include all listed investors as "relevant conduct" without evidence they relied on fraud	Calkins: many listed investors may have lent as friends/family or without reliance; inclusion without proof is improper	Government/majority: Guidelines permit broad view of relevant conduct; record, the majority says, supports counsel’s review	Dissent: Inclusion without evidence of fraudulent inducement may be improper; remand needed to resolve factual dispute

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
Engelen v. United States, 68 F.3d 238 (record contradictions bar § 2255 allegations)
Latorre v. United States, 193 F.3d 1035 (evidentiary hearing required where record not conclusive)
West v. United States, 994 F.2d 510 (counsel’s duty to investigate PSR; remand where unclear)
Ryder v. Morris, 752 F.2d 327 (failure to investigate PSR may be ineffective assistance)
Tinajero-Ortiz v. United States, 635 F.3d 1100 (standards for § 2255 ineffective-assistance review)
Etheridge v. United States, 241 F.3d 619 (Strickland application in § 2255 context)
Witthar v. United States, 793 F.3d 920 (evidentiary hearing required when factual dispute on counsel investigation exists)
United States v. Castillo, 779 F.3d 318 (acceptance-of-responsibility may survive good-faith challenge to loss)