United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
then filed a motion pursuant to 28 U.S.C. § 2255. In
that motion, Allmendinger demanded relief
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.)
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 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.
THE REMEDY ON REMAND
The Fourth Circuit's Guidance
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 ...