United States District Court, W.D. Virginia, Lynchburg Division
K. Moon United States District Judge.
Linda Sue Newcomb, a federal inmate, filed this motion to
vacate, set aside, or correct sentence, pursuant to 28 U.S.C.
§ 2255, challenging her 120-month sentence based on
ineffective assistance of counsel claims. The government
filed a motion to dismiss and Newcomb responded. Accordingly,
this matter is ripe for consideration. I conclude that
Newcomb's ineffective assistance of counsel claims fail
to meet the exacting standard set forth in Strickland v.
Washington, 466 U.S. 668, 669 (1984). Therefore, I will
grant the government's motion to dismiss.
5, 2014, a grand jury returned an eight-count indictment
against Newcomb charging her with: embezzlement from a
federally insured credit union, in violation of 18 U.S.C.
§§ 2 and 657 ("Count One"); four counts
of bank fraud, in violation of 18 U.S.C. § 1344
("Counts Two, Three, Four and Five"); and three
counts of aggravated identity theft, in violation of 18
U.S.C. §§ 2 and 1028A(a)(1) ("Counts Six,
Seven and Eight"). These charges stemmed from a scheme
in which Newcomb, the manager at a credit union, and another
employee, forged loan documents and used the identities of
account holders to create fraudulent loans and used the
proceeds for her own benefit. As a result, the credit union
had to be liquidated, in turn causing millions of dollars of
losses to various financial institutions. Newcomb pleaded
guilty, pursuant to a written plea agreement, to Counts One,
Four, Five and Seven. (Plea Agree, at 1, ECF No. 48.) The
government agreed to dismiss the remaining counts of the
indictment. (Id. at 3.) The plea was entered
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C),
and called for an agreed upon sentencing range of 84 to 147
months' incarceration. (Id. at 1.)
guilty plea hearing was held on February 27, 2015. At the
hearing, Newcomb affirmed that she had read and understood
the plea agreement and had had ample time to consult with
counsel before signing it. (Plea Hr'g Tr. 3, 13-15, ECF
No. 85.) Newcomb further affirmed that she was "fully
satisfied with the counsel, representation and advice
given" to her by her lawyer. (Id. at 4.) She
stated that she understood that she was entitled to a trial
if she so wanted and that by pleading guilty she waived her
right to trial. (Id. at 4-5.) The prosecutor
summarized the terms of the plea agreement, including the
statutory minimum and maximum terms she faced and the
evidence that it had against her. (Id. at 6-8.)
Newcomb affirmed that she understood the range of punishment
that she faced for each count. (Id. at 8-9.)
Further, Newcomb affirmed her understanding that by pleading
guilty, she gave up his right to appeal and to collaterally
attack her sentence except for matters that cannot be waived
by law or that allege ineffective assistance of counsel.
(Id. at 14.) In addition, Newcomb stated that no one
had "attempted in any way to force" her to plead
guilty. (Id.) I found that Newcomb was fully
competent and capable of entering an informed plea and that
her guilty plea was knowingly and voluntarily made.
(Id. at 21-22.)
probation office prepared a Presentence Investigation Report
("PSR") in anticipation of sentencing. The PSR
recommended a total offense level of 34, for Counts One, Four
and Five, which included a twenty-point enhancement because
the loss was more than seven million dollars but less than
twenty million, a two-point enhancement because the fraud
involved sophisticated means, a four-point enhancement
because the offense substantially jeopardized the soundness
of a financial institution, a two-point enhancement for abuse
of a position of public trust, and a two-point enhancement
for being a leader or organizer of the criminal activity.
(PSR ¶¶ 22 - 24, 26, 27, 33, ECF No. 96). Count
Seven required, by statute, a two-year consecutive sentence,
which precluded the need for offense level computations for
that count. (Id. ¶ 34.) Because Newcomb had a
criminal history category of I, her guideline imprisonment
range was 151 to 188 months on Counts One, Four and Five and
24 months on Count Seven, to be served consecutive to any
other counts. Id. ¶ 58, 59.) However, because
Newcomb pleaded guilty pursuant to Rule 11(c)(1)(C), the
agreed upon term of imprisonment was 84 to 147 months.
(Id. ¶ 60.) Defense counsel objected to the PSR
and argued that the enhancement for being an organizer or
leader of the criminal activity should not apply.
(Id. at 18.)
the government and Newcomb provided sentencing memoranda. The
government requested that I sentence Newcomb to the high end
of the range, 147 months, because of the size, scope, and
duration of the fraud. (U.S. Sent. Memo at 11, ECF No. 61.)
Newcomb argued that she deserved a sentence of 84 months
because she had no criminal history, did not pose a danger to
the public, had suffered due to the fact that her felony
convictions were "highly publicized, " and to avoid
sentencing disparities because the other person convicted of
criminal activity for the same fraud received a 40-month
sentence after cooperating with the government. (Newcomb
Sent. Memo at 3-9, ECF No. 63.)
sentencing hearing, neither the government nor the defense
presented evidence. In accordance with their sentencing
memoranda, the government argued for a sentence of 147 months
and the defense for 84 months. (Id. at 5-10).
Defense counsel highlighted Newcomb's repentance, lack of
criminal history, the fact that 84 months is a significant
amount of time for someone who is 64 years of age, and that
an 84 month sentence would accomplish the court's
sentencing goals. (Id. at 7-11) I sentenced Newcomb
to 120 months. She did not appeal.
§ 2255 motion, Newcomb alleges that counsel provided
ineffective assistance by: (1) providing erroneous advice
prior to pleading guilty, (2) failing to investigate, (3)
failing to communicate with her and coercing her to plead
guilty, (4) failing to object to the PSR and present
arguments at sentencing.
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his sentence was
"imposed in violation of the Constitution or laws of the
United States;" (2) that "the court was without
jurisdiction to impose such a sentence;" or (3) that
"the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255. Newcomb bears the burden of proving
grounds for a collateral attack by a preponderance of the
evidence. Miller v. United States, 261 F.2d 546, 547
(4th Cir. 1958).
proper vehicle for a defendant to raise an ineffective
assistance of counsel claim is by filing a § 2255
motion. United States v. Baptiste, 596 F.3d 214, 216
n.l (4th Cir. 2010). However, ineffective assistance claims
are not lightly granted; "[t]he benchmark forjudging any
claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on
as having produced a just result." Id. at 686.
Accordingly, in order to establish a viable claim of
ineffective assistance of counsel, a defendant must satisfy a
two-prong analysis showing both that counsel's
performance fell below an objective standard of
reasonableness and establishing prejudice due to
counsel's alleged deficient performance.
Strickland, 466 U.S. at 687. When considering the
reasonableness prong of Strickland, courts apply a
"strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance." Id. at 689; Gray v.
Branker, 529 F.3d 220, 228-29 (4th Cir. 2008).
Counsel's performance is judged "on the facts of the
particular case, " and assessed "from counsel's
perspective at the time." Strickland, 466 U.S.
at 689, 690.
satisfy the prejudice prong of Stickland, a
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional error, the outcome
of the proceeding would have been different. Id. at
694. A defendant who has pleaded guilty must demonstrate
that, but for counsel's alleged error, there is a
reasonable probability that he would not have pleaded guilty
and would have insisted on going to trial. Hill v.
Lockhart,474 U.S. 52, 59 (1985). "A ...