Argued: May 9, 2018
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)
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.
J. Boente, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
GREGORY, Chief Judge, and MOTZ and KEENAN, Circuit Judges.
GRIBBON MOTZ, CIRCUIT JUDGE.
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.
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.
jury indicted Allmendinger and Abdulwahab for various crimes
related to these actions. Id. at 335. 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.
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.
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.
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).
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 ...