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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15203
Non-Argument Calendar
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D.C. Docket Nos. 2:13-cv-00377-WHA-CSC; 2:11-cr-00048-MEF-CSC-1
LORETTA FERGERSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(May 31, 2017)
Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Loretta Fergerson, proceeding pro se, appeals the district court’s denial of
her 28 U.S.C. § 2255 motion to vacate her sentence. On appeal, Fergerson argues
that her counsel was ineffective for failing to object to the use of the 2011
Sentencing Guidelines Manual on ex post facto grounds and to the imposition of a
four-level number-of-victims enhancement under U.S.S.G. § 2B1.1(b)(2)(B). 1
Specifically, she argues that the 2011 manual expanded the definition of victims to
include not only those who suffered a loss but also those whose means of
identification were used unlawfully. She argues that without the expanded
definition, the government could not have proven there were 50 or more victims
from her offenses, which involved the submission of fraudulent tax returns. After
careful consideration of the record and the parties’ briefs, we affirm.
At Fergerson’s sentencing hearing, the government presented evidence that
Fast Tax Cash prepared 1,566 tax returns, and Fergerson admitted in her plea
agreement that a majority of those returns were fraudulent. The government also
presented evidence of 135 client folders containing false ID documents for which
118 refunds were paid.
In a Ҥ 2255 proceeding, we review legal conclusions de novo and factual
findings for clear error. Ineffective assistance of counsel claims are mixed
1
When we refer to the enhancement under U.S.S.G. § 2B1.1(b)(2)(B), we are referring to the
2011 Guidelines Manual, under which Fergerson was sentenced. We note that the guidelines
have since decreased the number of victims for a four-level enhancement to five victims.
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questions of law and fact that we review de novo.” Osley v. United States, 751
F.3d 1214, 1222 (11th Cir. 2014) (internal citation omitted).
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.
2052, 2063 (1984). The benchmark for judging a claim of ineffective assistance of
counsel is whether counsel’s performance “so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a
just result.” Id., 104 S. Ct. at 2064. To make such a showing, a prisoner must
prove two things: (1) “counsel’s performance was deficient;” and (2) “the deficient
performance prejudiced the defense.” See id. at 687, 104 S. Ct. at 2064.
Performance is deficient when “it f[alls] below an objective standard of
reasonableness and [i]s outside the wide range of professionally competent
assistance.” See Johnson v. Sec’y, DOC, 643 F.3d 907, 928 (11th Cir. 2011)
(internal quotation marks omitted). Under the prejudice prong, the defendant must
show “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694, 104 S. Ct. at 2068.
The Ex Post Facto Clause prohibits the government from enacting any laws
that retroactively increase the punishment for an offense beyond what was
prescribed when the offense was committed. See Collins v. Youngblood, 497 U.S.
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37, 43, 110 S. Ct. 2715, 2719 (1990). Generally, sentencing courts “use the
Guidelines Manual [that is] in effect on the date that the defendant is sentenced.”
U.S.S.G. § 1B1.11(a). To avoid ex post facto concerns, however, the district court
must use the manual that was in effect at the time of the offense if using the
manual that is in effect at the time of sentencing would result in a higher guidelines
range. See Peugh v. United States, 569 U.S. ___, ___, 133 S. Ct. 2072, 2084–85
(2013).
Under the Guidelines, a defendant who was convicted of an offense
involving fraud receives a four-level enhancement if the offense involved 50 or
more victims. See U.S.S.G. § 2B1.1(b)(2)(B). In both the 2008 and 2011
Guidelines Manuals, a “victim” is defined as “(A) any person who sustained any
part of the actual loss determined under subsection (b)(1); or (B) any individual
who sustained bodily injury as a result of the offense.” Id. § 2B1.1, comment.
(n.1) (2008 & 2011).
Amendment 726, which became effective on November 1, 2009, expanded
the definition of “victim” by adding the following application note:
(E) Cases Involving Means of Identification.—For
purposes of [§ 2B1.1(b)(2)], in a case involving means of
identification “victim” means (i) any victim as defined in
Application Note 1; or (ii) any individual whose means
of identification was used unlawfully or without
authority.
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U.S.S.G. App. C, Amend. 726; see also U.S.S.G. § 2B1.1, comment. (n.4(E))
(2011).
When a defendant disputes a fact underlying his sentence, the government
must prove that “disputed fact by a preponderance of the evidence.” See United
States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (per curiam). In determining
the number of victims, the district court can make reasonable inferences “based on
common sense and ordinary human experience.” See id. at 885–86.
The district court did not err in denying Fergerson’s § 2255 motion. Even
assuming that Fergerson’s counsel performed deficiently, Fergerson has not
demonstrated that she was prejudiced by her counsel’s failure to object to the
§ 2B1.1(b)(2)(B) enhancement or the use of the 2011 Guidelines Manual because
she has not shown that the result of the proceeding would have been different had
those objections been raised. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
If Fergerson’s counsel had objected, the government would have been required to
prove by a preponderance of the evidence that at least 50 victims suffered financial
loss from Fergerson’s offense conduct. See Philidor, 717 F.3d at 885. It is
reasonable to infer that the government could prove more than fifty victims
because of the 135 client folders containing false ID documents for which 118
refunds were paid. Therefore, Fergerson has not met her burden to show that had
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her counsel objected, the result of the proceeding would have been different. See
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Fergerson has not established that she was prejudiced by her counsel’s
allegedly deficient performance and her claim of ineffective assistance of counsel
fails. See id.
AFFIRMED.
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