US v. Michael Dunkel
Filing
UNPUBLISHED PER CURIAM OPINION filed.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]
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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?