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United States v. Newcomb

United States District Court, W.D. Virginia, Lynchburg Division

January 27, 2017

UNITED STATES OF AMERICA
v.
LINDA SUE NEWCOMB, Petitioner. Criminal

          MEMORANDUM OPINION

          Norman K. Moon United States District Judge.

         Petitioner 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.

         I.

         On June 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.)

         A 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.)

         The 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.)

         Both 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.)

         At the 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.

         In her § 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.

         II.

         To 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).

         III.

         The 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.

         To 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 ...


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