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United States v. Allmendinger

United States Court of Appeals, Fourth Circuit

June 26, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
CHRISTIAN M. ALLMENDINGER, Defendant-Appellant.

          Argued: May 9, 2018

          Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:10-cr-00248-REP-1; 3:14-cv-00375-REP)

         ARGUED:

          William Joseph Gonyea, Jr., JOE GONYEA, ATTORNEY AT LAW, Houston, Texas, for Appellant.

          Jessica D. Aber, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

         ON BRIEF:

          Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          Before GREGORY, Chief Judge, and MOTZ and KEENAN, Circuit Judges.

          DIANA GRIBBON MOTZ, CIRCUIT JUDGE.

         Christian M. Allmendinger was convicted and sentenced for money laundering and other crimes relating to a fraudulent investment scheme. United States v. Allmendinger, 706 F.3d 330, 333 (4th Cir. 2013). On direct appeal, his counsel failed to raise a significant and obvious issue that, if raised, likely would have resulted in the reversal of Allmendinger's money laundering convictions. In the present proceedings under 28 U.S.C. § 2255, the district court found that this failure did not amount to ineffective assistance of counsel. Allmendinger appeals. For the reasons set forth within, we disagree and so vacate the judgment of the district court and remand for further proceedings consistent with this opinion.

         I.

         Allmendinger and an associate founded a company known as "A & O," which sold interests in life insurance policies to investors. Allmendinger hired Adley Abdulwahab to help market A & O's products; Abdulwahab subsequently joined A & O as a partner. When marketing these products, Allmendinger and Abdulwahab "lied about many critical facts" and misrepresented their company's "size, staff, and record of earning returns for its investors." Allmendinger, 706 F.3d at 333-34. They also misappropriated millions of dollars for their personal benefit. The fraudulent scheme ultimately collapsed, causing A & O's investors to lose roughly $100 million. Id. at 333.

         A grand jury indicted Allmendinger and Abdulwahab for various crimes related to these actions. Id. at 335.[1] They proceeded to separate trials. In the first trial, a jury found Allmendinger guilty of mail fraud, conspiracy to commit mail fraud, securities fraud, conspiracy to commit money laundering, and - of particular importance here - two counts of money laundering. Id. at 336. In the second trial, a jury found Abdulwahab guilty of mail fraud, conspiracy to commit mail fraud, securities fraud, conspiracy to commit money laundering, and money laundering. Id. at 336 n.3.

         The same district court judge sentenced both Allmendinger and Abdulwahab. Allmendinger received a sentence of 540 months' imprisonment, well within the Sentencing Guidelines advisory range (life imprisonment capped by a statutory maximum of 1, 500 months). Id. at 337-38. The judge sentenced Abdulwahab to 720 months' imprisonment. United States v. Abdulwahab, 715 F.3d 521, 528 (4th Cir. 2013). Both defendants appealed.

         Allmendinger noted his appeal in November 2011, and we heard oral argument in December 2012. Allmendinger's appellate counsel made four principal arguments. First, counsel claimed that the district court had violated Allmendinger's Fifth Amendment rights by altering the superseding indictment mid-trial. Allmendinger, 706 F.3d at 338-340. Second, counsel contended that the sentence was substantively unreasonable. Id. at 343- 44. Third, counsel maintained that the sentence was procedurally unreasonable, because the district court erred in calculating the amount of loss attributable to Allmendinger under the Guidelines. Id. at 340-43. Fourth, counsel asserted that the sentence was also procedurally unreasonable because the sentencing court failed to address Allmendinger's argument that the sentence created an unwarranted disparity with the sentences of similarly situated defendants. Id. at 343. We rejected all of these arguments and affirmed both the conviction and sentence in an opinion issued on January 23, 2013. Id. at 344.

         On January 29, 2013, we heard oral argument in Abdulwahab's companion appeal. His appellate counsel raised an issue not addressed in Allmendinger's appeal, namely, that the "merger problem" identified in United States v. Santos, 553 U.S. 507 (2008), barred Abdulwahab's money laundering convictions. We agreed. Abdulwahab, 715 F.3d at 529- 32. Accordingly, we reversed Abdulwahab's money laundering convictions, vacated his sentence, and remanded for resentencing. Id. at 535. On remand, the district court imposed the same sentence. See United States v. Abdulwahab, 2016 WL 2349109, at *2 (E.D. Va. May 3, 2016).

         Allmendinger, represented by new counsel, then filed this § 2255 action, claiming, inter alia, that his original appellate counsel provided ineffective representation by failing to raise the merger problem. The district court ordered that counsel to respond and, in a sworn declaration, appellate counsel explained that he had "specifically considered" raising the merger problem on appeal but decided not to, for strategic reasons. In particular, he "did not believe this issue, even if successful, would ultimately lead to a reduction of Mr. Allmendinger's sentence," and counsel did not want to "risk detracting from other issues that [he] believed had a greater likelihood, if successful, of significantly reducing" the sentence. In appellate counsel's view, "[s]imply obtaining the reversal of a single count or two in a fashion that in all likelihood would not impact the sentence was not . . . a desirable outcome." Rather, counsel ...


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