US v. Michael Dunkel


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00220-GBL-1,1:15-cv-00397-GBL. Copies to all parties and the district court/agency. [1000064456].. [16-7356]

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Appeal: 16-7356 Doc: 13 Filed: 04/19/2017 Pg: 1 of 8 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-7356 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL BRIAN DUNKEL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:13-cr-00220-GBL-1; 1:15-cv-00397-GBL) Submitted: March 27, 2017 Before WYNN and Circuit Judge. DIAZ, Circuit Decided: Judges, and April 19, 2017 HAMILTON, Senior Dismissed by unpublished per curiam opinion. Richard Klugh, LAW OFFICE OF RICHARD C. KLUGH, Miami, Florida, for Appellant. Ryan Scott Faulconer, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-7356 Doc: 13 Filed: 04/19/2017 Pg: 2 of 8 PER CURIAM: Michael Brian Dunkel appeals the district court’s order denying relief on his 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial right.” court showing 28 U.S.C. denies this that denial on the of (2012). merits, the district court’s claims is U.S. 473, 529 relief demonstrate debatable, constitutional When a the prisoner district satisfies assessment debatable 484 or on both and procedural that that the the Slack v. v. When the district court dispositive the prisoner procedural states the denial of a constitutional right. the Miller-El see grounds, motion of wrong. (2000); Cockrell, 537 U.S. 322, 336-38 (2003). denies a by demonstrating that reasonable jurists would constitutional McDaniel, the § 2253(c)(2) relief standard find of a ruling must is debatable claim of Slack, 529 U.S. at 484- 85. Dunkel seeks a certificate of appealability to challenge his conviction following a guilty plea under 18 U.S.C. § 1031 (2012), and to constitutionally argue deficient that his assistance trial by counsel failing to provided properly advise him about § 1031, failing to inform him that his guilty 2 Appeal: 16-7356 Doc: 13 plea would Filed: 04/19/2017 require him Pg: 3 of 8 to register as a sex offender, stipulating to a loss figure unsupported by the evidence, and failing to object victim-impact to the witnesses. Government’s Section 1031 introduction prohibits of schemes two to defraud the United States in any procurement of services or any contract, subcontract, or other form of federal assistance. To invoke $1 § 1031, the value of federal assistance must be million or more. Dunkel argues that his conduct does not satisfy the $1 million jurisdictional requirement of § 1031 because it requires a single $1 million prime contract or subcontract and his scheme did not involve such a contract. Dunkel has conceded that he procedurally defaulted on his § 1031 claim by failing to raise it on direct review. postconviction He may therefore raise the claim in this proceeding only if innocence or cause and prejudice. 523 U.S. 614, 622 (1998). he can establish actual See Bousley v. United States, Actual innocence requires a showing that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” v. Delo, 513 U.S. 298, 327 (1995). Schlup “The existence of cause for a procedural default must turn on something external to the defense, such as . . . a denial of effective assistance of counsel.” United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). 3 Appeal: 16-7356 Doc: 13 Filed: 04/19/2017 Pg: 4 of 8 We conclude that Dunkel cannot establish actual innocence. Dunkel stipulated in his plea agreement that he had posed as an employee of Company B, which received contracting preferences from the Small Business Administration, to take advantage of those preferences when bidding on NASA contracts. He further agreed that the scheme was “all in relation to a procurement for services limited valued to at more [Contract than $1,000,000, A86B].” By that including admission, but not Dunkel’s conduct fell within the scope of § 1031. Even absent Dunkel’s stipulations, his argument that § 1031 requires fails. a single $1 million prime contract or subcontract Section 1031 is not limited to prime contracts; by its terms, it applies to the procurement of services and “other form[s] of Federal assistance” worth $1 million or more. U.S.C. § 1031. Moreover, Dunkel has not shown that 18 the Government did not rely on a single contract worth $1 million. Even if the Government aggregated several contracts, however, we have recognized that § 1031 should not be read to insulate “pervasive fraud on a multi-million dollar defense project . . . if it were perpetrated in multiple separate subcontracts, each involving less than the jurisdictional amount.” United States v. Brooks, 111 F.3d 365, 369 (4th Cir. 1997). We therefore conclude that Dunkel has not established actual innocence. We reject his request for a hearing on actual innocence because, 4 Appeal: 16-7356 Doc: 13 contrary to Filed: 04/19/2017 Dunkel’s Pg: 5 of 8 contention, the States v. Bousley do not apply here. circumstances of United See 523 U.S. at 623. We also conclude that Dunkel has failed to make a showing of cause Dunkel and prejudice argues that to cause overcome and his prejudice procedural exists default. because his attorney provided ineffective assistance by failing to raise his § 1031 arguments. A claim of ineffective assistance of counsel requires a defendant to show: (1) “that counsel’s performance was deficient,” and (2) “that the deficient performance prejudiced the defense.” (1984). Strickland v. Washington, 466 U.S. 668, 687 A defendant proves deficient performance by showing that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688-89. To prove prejudice if the defendant entered a guilty plea, the defendant “‘must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” Hooper v Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Because Dunkel’s arguments about § 1031 lack cannot show that his counsel acted unreasonably. Dunkel cannot overcome the procedural default merit, he Accordingly, of his § 1031 claim and both that claim and his ineffective assistance claim based on § 1031 fail. 5 Appeal: 16-7356 Doc: 13 Filed: 04/19/2017 Pg: 6 of 8 Dunkel also appeals the district court’s denial of three of his other ineffective assistance of counsel claims. First, Dunkel argues that his counsel should have advised him that his conviction would require him to register under the Sex Offender Registration (2012). and Notification Act (SORNA), 42 U.S.C. § 16913 However, the “requirements of [SORNA] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 28 C.F.R. § 72.3. Because SORNA retroactively applied to Dunkel before his plea and conviction, the plea did not trigger SORNA registration. unreasonably when discussing would Dunkel’s advised Dunkel SORNA. requirement he Thus, Moreover, have applied counsel about because to Dunkel the the did not plea act without registration regardless of a conviction, counsel’s failure to advise Dunkel about SORNA did not prejudice Dunkel. Second, Dunkel argues that his counsel provided ineffective assistance by advising him to stipulate to a loss figure under U.S. Sentencing Guidelines Manual § 2B1.1 (2016) despite a lack of evidence to support it. In the plea agreement, Dunkel agreed that he and Company B gained at least $2.9 million and that his gain could be used as the loss figure for sentencing. serve as difficult. a proxy for U.S. loss where Sentencing 6 calculating Commission, loss Loss Gain can would be Primer Appeal: 16-7356 Doc: 13 Filed: 04/19/2017 Pg: 7 of 8 § 2B1.1(b)(1) (citing United States v. Vrdolyak, 593 F.3d 676, 681 (7th Cir. 2010) (reversing sentencing judge’s refusal to consider gain as proxy for loss where a “probable” but difficult to calculate loss existed)). have been difficult Here, calculating the loss would because the parties could not have sufficiently determined the loss experienced by the company that would have contracted with NASA absent Dunkel’s fraud. Thus, the parties appropriately agreed to determine how much Dunkel gained from his fraud rather than how much an unknown company lost from that fraud. The parties then determined the gain based on Dunkel’s admission that he gained at least $2.9 million from his scheme. not provide Thus, we conclude that Dunkel’s counsel did deficient performance by advising stipulate to the loss figure in the plea agreement. conclude that the stipulation did not prejudice Dunkel to We further Dunkel, who would have been subject to the same method of loss calculation if he had been convicted without the plea agreement. Third, Dunkel argues that his counsel provided ineffective assistance by failing to object when the prosecution introduced additional witnesses evidence to government. testify of loss about According to at the sentencing impact Dunkel, of calling by the the calling fraud on witnesses two the to testify breached the plea agreement by circumscribing the agreed to loss figure. The prosecution, however, did not breach the 7 Appeal: 16-7356 Doc: 13 Filed: 04/19/2017 Pg: 8 of 8 plea agreement because it did not use the additional evidence to advocate for a greater enhancement under USSG § 2B1.1. The plea agreement also permitted the parties to make other arguments about sentencing at the hearing. Thus, counsel did not perform unreasonably, and Dunkel cannot establish ineffective assistance of counsel. We have independently reviewed the record and conclude that Dunkel has not made the requisite showing to appeal the denial of his certificate dispense of with § 2255 motion. appealability oral and argument Accordingly, dismiss because the the facts we deny appeal. and a We legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 8

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