UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DAVID CHRISTOPHER MAYHEW, Defendant – Appellant.
No. 19-6560
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: April 19, 2021
PUBLISHED. Argued: January 29, 2021. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:13-cr-00199-BO-2; 5:18-cv-00415-BO)
Before DIAZ, FLOYD, and HARRIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Harris wrote the opinion, in which Judge Diaz and Judge Floyd joined.
ARGUED: Caitlin Augerson, Katharine Batchelor, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. David A. Bragdon, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: John J. Korzen, Director, Ryan C. Dibilio, Third-Year Law Student, Timothy Misner, Third-Year Law Student, Appellate Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Evan M. Rikhye, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
A jury convicted David Christopher Mayhew of fraud charges stemming from an investment scam, and Mayhew was sentenced to over 26 years’ imprisonment. He filed a
We granted a certificate of appealability on two of Mayhew‘s claims. In the first, Mayhew alleged that his lawyer guaranteed him – incorrectly, as it turned out – that he would be sentenced only to two to five years’ imprisonment if he were convicted at trial, and that he relied on that guarantee when he rejected a plea offer from the government. The district court dismissed this claim, concluding that any prejudice caused by counsel‘s error necessarily would have been cured when the court at Mayhew‘s arraignment advised him of his actual sentencing exposure. We disagree: Because the court‘s corrective came after Mayhew already had rejected the plea offer, we cannot assume without more that it cured the prejudice Mayhew alleges. We therefore conclude that Mayhew is entitled to an evidentiary hearing on this claim.
Mayhew‘s second claim alleged that his counsel performed deficiently in connection with the amount of restitution he owed, failing to object to the inclusion of losses that stemmed from conduct for which he had not been convicted. The district court dismissed that claim on the ground that challenges to restitution orders may not be raised by way of
I.
A.
In July of 2013, David Christopher Mayhew was charged with committing wire and mail fraud in violation of
Mayhew was not arraigned on this superseding indictment for nearly a year – in part, it appears, as a result of Mayhew‘s request for new counsel, which was granted by the district court. In the intervening period, the court dismissed the new wire-fraud charges from the superseding indictment on the government‘s motion. Finally, in June of 2015, Mayhew was arraigned on the superseding indictment, and pleaded not guilty.
Mayhew‘s jury trial began the next day. At the close of the government‘s case, Mayhew moved for acquittal on all counts. The court granted the motion in part, dismissing five wire-fraud counts. The jury then returned a guilty verdict on all remaining counts.
Mayhew was sentenced in January of 2016. At his sentencing hearing, the district court concluded, consistent with the probation officer‘s presentence report (“PSR“), that the total loss amount attributable to Mayhew was $2,026,000. This triggered a 16-level increase in Mayhew‘s total offense level, see
The district court sentenced Mayhew to a total term of 320 months: 60 months on the conspiracy count; 240 months on the wire and mail fraud counts, to run concurrently with the conspiracy sentence; and 80 months on the unlawful monetary transaction counts, to run consecutively to the other sentences. The district court also sentenced Mayhew to three years of supervised release. Finally, the district court ordered Mayhew to pay $2,025,300 in restitution to multiple victims of the investment scam. According to Mayhew‘s PSR, this number was slightly lower than the $2,026,000 loss amount because one of Mayhew‘s victims had received $700 from the bank account of another victim.
This court affirmed Mayhew‘s convictions and sentence on appeal, see United States v. Mayhew, 715 F. App‘x 232, 233 (4th Cir. 2017) (per curiam), and the Supreme Court denied certiorari, see Mayhew v. United States, 138 S. Ct. 1314 (2018) (Mem.).
B.
In 2018, proceeding pro se – that is, without the assistance of counsel – Mayhew filed the
The district court dismissed these two claims without an evidentiary hearing, along with the entirety of Mayhew‘s petition. See Mayhew v. United States, No. 5:13-cr-00199-BO-2, 2019 U.S. Dist. LEXIS 60509, at *5–6, *9, *11–12 (E.D.N.C. Apr. 3, 2019). It also denied a certificate of appealability as to all of Mayhew‘s claims. Id. at *11–12. When Mayhew timely appealed, our court granted a certificate of appealability on three questions arising out of the two claims noted above:
Whether defense counsel rendered ineffective assistance in advising Mayhew that, if he went to trial and was convicted, he would receive a sentence of between two and five years in prison;
Whether Mayhew‘s claim that defense counsel rendered ineffective assistance in failing to object to restitution sums to be paid to United Global Investments, Inc., Frank McGrath, and James Perry Fergus is cognizable under
§ 2255 ; and
If this claim is cognizable under
§ 2255 , whether defense counsel rendered ineffective assistance in failing to object to restitution sums to be paid to United Global Investments, Inc., Frank McGrath, and James Perry Fergus.
United States v. Mayhew, No. 19-6560 (4th Cir. Jan. 23, 2020).
II.
We begin by setting out the legal framework that governs our review, and then turn to the two claims of ineffective assistance of counsel on which we granted a certificate of appealability.
On an appeal from the denial of a
Mayhew‘s Sixth Amendment ineffective assistance of counsel claims are governed by the well-established framework set out in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Mayhew must show first that counsel‘s performance was constitutionally deficient, id. at 687, overcoming the “strong presumption that counsel‘s representation was within the wide range of reasonable professional assistance,” Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal quotation marks omitted). And under Strickland‘s second prong, Mayhew must establish prejudice, in the form of a “reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
A district court must hold an evidentiary hearing on a petitioner‘s Strickland claim “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”
A.
Mayhew‘s first claim of ineffective assistance alleges that his counsel performed deficiently before trial, during plea bargaining. The Sixth Amendment right to effective assistance of counsel “extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). The standard Strickland inquiry governs, and a defendant establishes prejudice by showing that but for the ineffective assistance of counsel, there is a “reasonable probability” that he would have accepted a plea, that the court would have approved its terms, and that the resulting conviction or sentence “would have been less severe” than that actually imposed. Id. at 164.
The district court dismissed Mayhew‘s claim on the ground that he could not show prejudice under this standard. On appeal, the government contests both the deficient performance and the prejudice prongs. As detailed below, we find that the record does not “conclusively” foreclose a finding of either deficient performance or prejudice, and therefore vacate the district court‘s dismissal of this claim and remand for an evidentiary hearing under
1.
We begin with the particulars of Mayhew‘s claim and the relevant facts. Mayhew alleges – and the government does not dispute – that before trial, the government offered him a plea deal that would have allowed him to plead guilty to a single conspiracy count, with a “zero-to-five[-]year imprisonment range.” J.A. 234. But his counsel, Mayhew continues, “guaranteed” him that if he exercised his right to trial and was convicted, he “would receive a sentence between two [and] five years imprisonment.” Id. Based on that advice, Mayhew contends, he saw “no benefit in pleading guilty seeing that the exposure was virtually the same” and rejected the government‘s offer. J.A. 235.
After turning down the government‘s plea offer, Mayhew was arraigned, along with several other defendants who were entering pleas at the same time. The district court provided two admonitions relevant here. First, addressing all the defendants, the district court cautioned that their attorneys’ calculations of their “anticipated sentence[s]” were only “estimate[s],” and that it was the court alone that would determine their sentences. J.A. 85. Second, in an individual colloquy with Mayhew, the court advised Mayhew of the maximum penalties authorized by statute for the counts against him: a prison term of up to 5 years on the conspiracy charge, 20 years on each of the wire and mail fraud charges, and 10 years on each of the monetary transaction charges.
After the district court listed those penalties, Mayhew stated that he was pleading not guilty. Mayhew‘s counsel confirmed, at the government‘s request, that Mayhew previously had been advised of and rejected the government‘s plea offer; a counter-offer by Mayhew had been rejected by the government just the night before the arraignment. And Mayhew confirmed that “I have every intention of going to trial and want to go to trial,” though he also expressed “major concerns” with his attorney. J.A. 101. The case proceeded to trial, where, as noted, Mayhew was convicted and sentenced to 320 months, or over 26 years – well in excess of the zero-to-five years offered by the government.
The government does not meaningfully dispute that if Mayhew‘s counsel in fact advised him that he was certain to receive a sentence of between two and five years, then that gross error can satisfy Strickland‘s deficient performance prong. See, e.g., O‘Tuel v. Osborne, 706 F.2d 498, 499–501 (4th Cir. 1983) (holding that “gross misinformation” from counsel about parole eligibility, which caused defendant to accept guilty plea, constituted ineffective assistance of counsel).1 Instead, the government insists that because Mayhew
has not substantiated his core allegation – that his counsel promised him a sentence of no more than five years – the district court properly dismissed his petition. But the government, in asserting that “[t]he record does not conclusively show that Mayhew received any misinformation from his defense counsel,” Appellee‘s Br. 27, gets the standard precisely backwards: As we have noted, Mayhew is entitled to an evidentiary hearing on his claim unless the record “conclusively show[s]” that he did not receive the misinformation in question. See
The government is wrong when it asserts that there is not a “scintilla” of evidence that Mayhew‘s counsel grossly misadvised him about his sentencing exposure. Mayhew has declared, in his signed pro se
In short, whether Mayhew‘s counsel performed deficiently by guaranteeing him a sentence of no more than five years can be determined “conclusively” only after an evidentiary hearing. See
Mayhew‘s claim on a different ground – Strickland‘s prejudice prong, addressed below – it did not hold such a hearing. Accordingly, and contrary to the government‘s argument, we cannot affirm that dismissal under Strickland‘s deficient-performance prong.
3.
The district court relied wholly on Strickland‘s prejudice prong in dismissing Mayhew‘s claim, and in particular on the requirement that Mayhew establish a reasonable probability that he would have accepted the government‘s plea offer had he not been misadvised by counsel. See Lafler, 566 U.S. at 163–64.3 At Mayhew‘s arraignment, the district court explained, the court correctly informed him of his sentencing exposure, and Mayhew still chose to go to trial. See Mayhew, 2019 U.S. Dist. LEXIS 60509, at *5–6. It necessarily followed, the court concluded, that Mayhew could not “allege that he would have pleaded guilty” had his counsel likewise advised him of his actual sentencing range. Id. at *6. We disagree. Under the circumstances here, the court‘s admonitions at Mayhew‘s arraignment do not by themselves conclusively establish a lack of prejudice, and on this Strickland prong, too, an evidentiary hearing is required under
It is true, as the government argues, that in a similar context, we have held that the effects of defense counsel‘s misinformation about sentencing exposure may be cured by a court at arraignment. Specifically, if a defendant alleges that he has accepted a government plea offer based on the erroneous advice of counsel,
Here, the government, like the district court, claims that counsel‘s alleged misadvice was cured by the twin cautions offered by the court at Mayhew‘s arraignment: first, the statement to the group of defendants that the court alone would decide their sentences, notwithstanding the “estimate[s]” of their lawyers, J.A. 85; and second, the recitation to Mayhew of the maximum penalties for the charges against him. Had Mayhew subsequently pled guilty after a
This is not a case, in other words, like those discussed above, in which a defendant accepts a government plea offer and pleads guilty in accordance with that offer only after a
Under those circumstances, we conclude, the district court erred in treating the court‘s after-the-fact advisements as conclusive on the question of prejudice. Cf. United States v. Murillo, 927 F.3d 808, 816 (4th Cir. 2019) (“Giving dispositive weight to boilerplate language from a plea agreement is at odds with Strickland‘s fact-dependent prejudice analysis.“). We recognize that after hearing the court‘s admonitions, Mayhew affirmed that he was rejecting the government‘s plea offer and “want[ed] to go to trial.” J.A. 101; see Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court carry a strong presumption of verity.“). But we consider such “sworn statements . . . in their context,” Murillo, 927 F.3d at 817, and here, the context is that Mayhew already had decided, before his arraignment and the court‘s warnings, to reject the plea deal
Without more, we find, this record does not conclusively demonstrate that the court‘s admonitions at Mayhew‘s arraignment effectively cured counsel‘s alleged misadvice, making it impossible for Mayhew to establish a reasonable probability that – as he has attested – he would have accepted the government‘s plea offer were it not for his counsel‘s erroneous sentencing guarantee. Accordingly, we vacate the district court‘s dismissal of Mayhew‘s claim and remand for an evidentiary hearing under
To be clear, we express no view as to whether Mayhew ultimately can prevail under either prong of Strickland. The district court, after a hearing, may find that Mayhew‘s account of his counsel‘s sentencing “guarantee” is not accurate, or that his allegations otherwise lack credibility. Or the court might find that a fuller record substantiates the government‘s position that Mayhew, who adamantly maintained his innocence, would have insisted on going to trial regardless of any misadvice by his counsel about sentencing exposure. Our holding today is simply that the current record does not “conclusively” foreclose Mayhew‘s Strickland claim, and that Mayhew therefore is entitled to an evidentiary hearing under
B.
We turn now to Mayhew‘s second claim: that he again was denied his Sixth Amendment right to counsel when his counsel performed deficiently by failing to object to an erroneous restitution calculation. The district court dismissed this claim without reaching the merits, holding that
1.
Under the Mandatory Victims Restitution Act of 1996 (“MVRA“) – on which the district court relied in ordering Mayhew to pay $2,025,300 in restitution – a “defendant convicted of” certain offenses, including mail and wire fraud, will be required to “make restitution to the victim of the offense.”
The crux of Mayhew‘s second claim is that the restitution calculation in his case exceeded that limit, and that his counsel provided ineffective assistance when he failed to object and bring that manifest error to the district court‘s attention. In his
Mayhew‘s petition then turns to Strickland prejudice: “The prejudice that resulted from this substandard performance was $1,125,500 in unlawful restitution.” J.A. 295. And that same amount, Mayhew alleged, also “was responsible for the 16-level enhancement” to his total offense level “under
2.
The district court dismissed Mayhew‘s claim in its entirety because, it held, ”
The question raised by this portion of Mayhew‘s appeal is whether relief from restitution – here, Mayhew‘s request that the district court vacate his restitution order – is a remedy authorized by
Based on this statutory text, virtually all federal courts of appeals to address the issue have concluded that challenges to restitution orders generally are not cognizable under
Similarly, the unpublished decision of our court on which Mayhew relies, United States v. Luessenhop, 143 F. App’x 528, 531 (4th Cir. 2005) (per curiam), which likewise permitted a
3.
That is not the end of the matter, however, because Mayhew‘s
Mayhew, that same restitution calculation was responsible for a 16-level enhancement of his base offense level
We recognize that in connection with this claim, Mayhew‘s pro se petition expressly asks only for the vacatur of his restitution order. And we do not fault the district court for failing to identify Mayhew‘s separate claim regarding his sentence; unlike the district court, we have the benefit of appointed and able appellate counsel. But Mayhew‘s
That leaves us, then, with an ineffective assistance claim that was never addressed by the district court. If Mayhew‘s restitution order erroneously includes amounts associated with charges of which he was not convicted, and if that restitution error was mirrored in the loss amount used to calculate Mayhew‘s base offense level under the Sentencing Guidelines, and if that error led to a higher Guidelines range than was appropriate, then Mayhew will have at least some of the makings of an ineffective assistance claim. See, e.g., Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) (holding that when a defendant is sentenced under an incorrect Guidelines range – even if the actual sentence falls outside that range – the error itself most often will establish a “reasonable probability of a different outcome” absent the error). But those are a lot of “ifs,” none of which has been passed on yet, and we think the best course is to remand this claim so that the district court may address it in the first instance. See Thomas, 627 F.3d at 540 (remanding pro se ineffective assistance claim where district court dismissed without reaching merits).
Even the threshold question, we note – whether Mayhew‘s restitution order includes amounts beyond what is authorized by the MVRA – is disputed; the government has conceded that some of the losses identified by Mayhew (those associated with United Global Investments) were improperly included, but not others. And while it seems clear that the restitution and Guidelines loss amounts are related – the final figures differed by only $700, a difference expressly accounted for in the PSR – the government argues strenuously that the two are legally distinct and governed by different standards, so that an error in including a given amount in the
Again, we express no view as to whether Mayhew can prevail on this claim. We also leave to the district court the question of whether a hearing on this claim is required under
III.
For the foregoing reasons, the judgment of the district court is affirmed in part, vacated in part, and remanded for proceedings consistent with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED