UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7328
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES ROBERT LUESSENHOP,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-02-298; CA-03-458)
Submitted: June 20, 2005 Decided: July 29, 2005
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
James Warren Hundley, BRIGLIA & HUNDLEY, PC, Fairfax, Virginia, for
Appellant. Thomas Higgins McQuillan, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Robert Luessenhop appealed from the district
court’s order denying his 28 U.S.C. § 2255 (2000) motion. We
previously granted a certificate of appealability on the limited
issue of whether Luessenhop received ineffective assistance of
counsel at sentencing. We denied a certificate of appealability as
to all other claims. Therefore, although the parties briefed other
issues, we will not address them. On the only issue before us, we
vacate the relevant portion of the district court’s order and
remand for a hearing.
The district court decided this case without a hearing.
An evidentiary hearing is generally required under § 2255 unless it
is conclusive from the pleadings, files, and records that a movant
is not entitled to relief. Raines v. United States, 423 F.2d 526,
529 (4th Cir. 1970). Whether an evidentiary hearing is necessary
is best left to the sound discretion of the district court judge.
Id. at 530. However, where a movant presents a colorable Sixth
Amendment claim showing disputed facts involving inconsistencies
beyond the record, a hearing is mandated. See United States v.
Magini, 973 F.2d 261, 264 (4th Cir. 1992).
To succeed on his claim, Luessenhop must show that his
counsel’s performance fell below an objective standard of
reasonableness and that his counsel’s deficient performance was
prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88
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(1984). Under the first prong of Strickland, we indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. at 689. To satisfy the
second prong of Strickland, a movant must demonstrate there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
Id. at 694.
Luessenhop argues that his attorney failed to properly
challenge the loss calculation under the sentencing guidelines.
Luessenhop engaged in a scheme to secure HUD (United States
Department of Housing and Urban Development)-insured mortgage loans
for buyers who could not qualify. When the buyers defaulted, HUD
paid the mortgages and then resold the property. The loss amount
was calculated by subtracting the HUD sale price from the mortgage
amount and adding fees incurred. The loss totalled $223,816.77.
Luessenhop now contends that HUD engaged in wrongdoing in
obtaining depressed appraisals for the property and selling them
below market value, thus increasing the loss for which Luessenhop
was responsible. At sentencing, Luessenhop’s counsel argued that
the loss was not reasonably foreseeable to Luessenhop, and the
court rejected that contention under United States v. McCoy, 242
F.3d 399, 404 (D.C. Cir. 2001), which held that, absent fraud on
the part of the Government, the loss calculation from a fraudulent
Small Business Administration loan application should be based on
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the actual sale price of the collateral, not the alleged potential
sale price. Luessenhop now contends that his counsel focused on
the wrong issue and, instead, should have argued that the
liquidation sales were not arms-length or were the result of fraud
or misconduct. In such a case, under McCoy, the sale price would
no longer be the appropriate amount to use for the loss
calculations. 242 F.3d at 404. In support of his claim,
Luessenhop has presented evidence that the appraisals were not
conducted in accordance with HUD regulations or accepted standards.
He states his attorney should have known that HUD sales must be
based on fair market value appraisals and should have requested the
appraisals on the relevant properties. Had counsel done so,
Luessenhop contends that he could have argued for a lower loss
calculation and that he would have been responsible for a lower
restitution amount.
In response, the Government contends that, even armed
with the HUD regulations and the appraisals, counsel could have
done no more than he actually did at sentencing. As stated above,
counsel made the argument that the full extent of the loss was not
reasonably foreseeable to Luessenhop and, thus, should not have
been attributed to him as relevant conduct. This claim was found
barred by McCoy. With the evidence now in the record, counsel
could have argued that the HUD sales were not arms-length and were
based on fraudulently depressed appraisals, an exception to McCoy.
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Thus, the factual issue of whether there was fraud is a new issue
based on new evidence that was not raised at sentencing.
The Government next argues that Luessenhop has no
evidence that the appraisals were fraudulent and that they may well
be accurate. However, Luessenhop is not required to prove that the
appraisals were fraudulent to be entitled to a hearing; instead, he
need only show that a material issue of fact exists. Luessenhop
has submitted opinions from licensed real estate professionals that
state that the appraisals were not accurate. In addition, one of
the buildings was sold for nearly three times as much as the
appraisal, less than three months after the HUD sale. We find that
Luessenhop’s evidence is sufficient to require a hearing to
determine whether the appraisals were fraudulent.
Finally, the Government contends that Luessenhop cannot
show prejudice. Luessenhop’s guideline range was calculated based
on a loss of $223,816.77. His guideline range was twelve to
eighteen months (after an acceptance of responsibility adjustment).
In addition, the court granted the Government’s motion for a
substantial assistance departure resulting in a guideline range of
eight to fourteen months, with an imposed sentence of eight months.
If Luessenhop’s figures are used, the loss amount would
have been less than half, resulting in a lower guideline range.
See U.S. Sentencing Guidelines Manual § 2F1.1 (1997). Nonetheless,
while Luessenhop arguably could have received a lower sentence if
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his attorney had properly argued his case, he could also have
received a longer sentence, especially if the court declined to
grant the downward departure motion or the acceptance of
responsibility adjustment or decided to sentence Luessenhop at the
higher end of the range.
However, while Luessenhop’s showing of prejudice
regarding the prison term may be insufficient to grant a hearing,
we find that Luessenhop is able to make a proper showing of
prejudice regarding the restitution order. Luessenhop paid
$223,816.77 in restitution. According to the evidence he has
submitted, absent his attorney’s ineffective assistance, the
restitution should have been substantially less. We find that this
substantial differential is sufficient to show prejudice arising
from his attorney’s failure to properly raise the possibly
fraudulent appraisals at sentencing.
Based on the foregoing, we vacate the relevant portion of
the district court’s order and remand for a hearing on Luessenhop’s
claim that he received ineffective assistance of counsel at
sentencing. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
VACATED AND REMANDED
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