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Huff v. United States

United States Court of Appeals, Sixth Circuit

November 5, 2013

Donavon E. HUFF, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

Argued: June 14, 2013.

Page 601

[Copyrighted Material Omitted]

Page 602

ARGUED:

Michael M. Losavio, Louisville, Kentucky, for Appellant.

Robert W. Kern, United States Attorney's Office, Cleveland, Ohio, for Appellee.

ON BRIEF:

Michael M. Losavio, Louisville, Kentucky, for Appellant.

Robert W. Kern, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: McKEAGUE and DONALD, Circuit Judges; LAWSON, District Judge.[*]

OPINION

DAVID M. LAWSON, District Judge.

Donavon Huff appeals the denial of his motion to vacate his sentence, which he filed under 28 U.S.C. § 2255. Huff had pleaded guilty to various fraud and identity theft charges under a plea agreement in which the parties agreed, among other things, that the November 1, 2002 Sentencing Guideline Manual would be used to calculate his sentencing guideline range. The sentencing court, however, used a later version, resulting in a higher-than-anticipated range, and sentenced Huff to a longer prison term. Huff filed a direct appeal raising a viable appellate issue, but his appellate lawyer, he says, gave him bad advice and talked him into dismissing the appeal, warning that the district judge might vindictively increase Huff's sentence on remand. The district court rejected Huff's ensuing ineffective-assistance-of-counsel claim without holding an evidentiary hearing. We believe that a hearing was necessary to address that claim properly, and it was error not to hold one. Therefore, we reverse the district court's order and remand for further proceedings.

I.

The defendant was indicted on January 17, 2007 and charged with one count of conspiracy in violation of 18 U.S.C. § 371,

Page 603

one count of identity theft in violation of 18 U.S.C. § 1028(a)(7), and five counts of access device fraud in violation of 18 U.S.C. § 1029(a)(2). On May 3, 2007, the defendant pleaded guilty to conspiracy, identity theft, and two counts of access device fraud with the benefit of a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(B). Huff hatched his fraudulent scheme in 2001 while he was employed at an insurance company and had access to customers' account information. He used that information to obtain credit cards and other lines of credit, and he employed a juvenile to create and process fraudulent cell phone contracts using the purloined information. The loss amount exceeded $350,000.

The plea agreement contained a stipulation by the parties that the Sentencing Guidelines Manual that was effective on November 1, 2002 applied to Huff. The parties calculated the defendant's Chapter 2 offense level at 22, and agreed that no other sentencing guideline adjustments other than those specified in the agreement applied. The parties' calculation did not include upward adjustments for either abuse of a position of trust under Guidelines section 3B1.3 or for the use of a minor under section 3B1.4. The plea agreement stated that the court would determine the defendant's eligibility for an acceptance of responsibility adjustment on the date of sentencing, but the parties agreed that if the court followed the parties' stipulations the total adjusted offense level would be 19. The plea agreement stated that the parties had no agreement as to the applicable criminal history category and that the criminal history category would be determined by the court after completion of a pre-sentence investigation by the United States Probation Department. The plea agreement ...


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