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United States v. Allmendinger

United States District Court, E.D. Virginia, Richmond Division

February 8, 2019

UNITED STATES OF AMERICA
v.
CHRISTIAN M. ALLMENDINGER, Petitioner.

          MEMORANDUM OPINION

          ROBERT E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.

         The matter is before the Court on the United States Court of Appeals for the Fourth Circuit's remand of the 28 U.S.C. § 2255 motion filed by Christian M. Allmendinger. By Memorandum Orders entered on September 18, 2018 and December 18, 2018, the Court directed the parties to file further briefing on the appropriate next steps for this proceeding on remand and on which counts should be vacated. The parties have complied with that directive. For the reasons that follow, the Court will grant the § 2255 motion in part, vacate Allmendinger's convictions on the money laundering counts (Counts Eight, Nine, and Eleven), and will set the matter for a resentencing.

         I. PROCEDURAL HISTORY

         A jury convicted Allmendinger of one count of mail fraud conspiracy (Count One); two counts of mail fraud (Counts Two and Three); one count of conspiracy to commit money laundering (Count Eight); two counts of money laundering (Counts Nine and Eleven); and one count of securities fraud (Count Fifteen). (ECF No. 207, at 1-3.) On November 9, 2011, the Court entered judgment against Allmendinger and sentenced him to 540 months of imprisonment. (Judgment 3, ECF No. 384.) Allmendinger appealed. The United States Court of Appeals for the Fourth Circuit affirmed Allmendinger's convictions and sentence. United States v. Allmendinger, 706 F.3d 330, 344 (4th Cir. 2013) . The Supreme Court of the United States subsequently denied Allmendinger's petition for a writ of certiorari. Allmendinger v. United States, 133 S.Ct. 2747 (2013).

         Allmendinger then filed a motion pursuant to 28 U.S.C. § 2255. In that motion, Allmendinger demanded relief because:[1]

Claim One: "Counsel was ineffective in relying on an invalid defense instead of recommending that Petitioner accept the plea agreement offer of ten years." (§ 2255 Mot. 5.)
Claim Two: "Petitioner was denied the effective assistance of counsel on appeal." (Id. at 13.)
Claim Three: "Counsel failed to preserve for de novo review the issue that petitioner's money laundering convictions are barred by the 'merger problem. "' (Id. at 18.)
Claim Four: "Counsel had a conflict of interest, as co-counsel had applied for employment with the Department of Justice at the time of petitioner's trial." (Id. at 19.)

         By Memorandum Opinion and Order entered on February 1, 2017, the Court denied Allmendinger's motion and denied a certificate of appealability. United States v. Allmendinger, No. 3:10CR248, 2017 WL 455553, *1-18 (E.D. Va. Feb. 1, 2017). The Fourth Circuit, granted a certificate of appealability solely "on the question of 'whether Allmendinger's appellate counsel rendered ineffective assistance in failing to present an argument premised on the merger problem[2] articulated in United States v. Santos, 553 U.S. 507 (2008).'" United States v. Allmendinger, 894 F.3d 121, 126 (4th Cir. 2018) . Thus, only Claim Two here was before the Fourth Circuit. The Fourth Circuit vacated the judgment of this Court and remanded the action. Id. at 131.

         II. THE REMEDY ON REMAND

         A. The Fourth Circuit's Guidance

         The Fourth Circuit found that appellate counsel was ineffective for failing to raise the "merger problem" on appeal. Specifically, it explained:

Because the merger consisted a 'clearly stronger' argument than the issues raised on direct appeal, and because appellate counsel does not identify any true strategic rationale for failing to raise merger, we hold ...

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