Damyanov v. USA-2255
Filing
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MEMORANDUM. Signed by Judge Catherine C. Blake on 7/30/14. (apls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
IVO SVETOZAROV DAMYANOV
v.
UNITED STATES OF AMERICA
:
:
: CIVIL NO. CCB-13-1308
: Criminal No. CCB-11-0120
:
...o0o...
MEMORANDUM
Federal prison inmate Ivo Damyanov filed a timely motion to vacate his sentence under
28 U.S.C. § 2255. The government has responded, Damyanov has replied, and no oral argument
is needed. For the reasons that follow, the motion will be denied.
Damyanov pled guilty, on the day of trial and without a plea agreement, to three counts
of a superseding indictment charging conspiracy to commit access device fraud (One); access
device fraud (Four); and aggravated identity theft (Five). On March 16, 2012, after a lengthy
hearing, he was sentenced to 51 months on Counts One and Four, concurrent, and 24 months
consecutive on Count Five, for a total of 75 months. He also was ordered to pay restitution in
the amount of $442,169.50, the estimated amount of loss suffered by the approximately 528
victims of the fraud. His appeal, which challenged a two-level guidelines enhancement, was
denied by the Fourth Circuit. See United States v. Damyanov, 503 F. App’x 224 (4th Cir. 2013).
On May 1, 2013, he filed the present § 2255 motion, alleging that trial counsel was ineffective
for promising him the sentence would be 24-30 months plus 24 months consecutive; that trial
counsel had a conflict of interest because he himself had been a victim of identity fraud; and that
his plea was not knowing and voluntary because he pled to a $19,433 loss but was sentenced
based on a $423,000 loss. The record demonstrates that each of these claims are without merit.
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I will assume without deciding that under some circumstances an inaccurate sentencing
prediction by counsel could constitute ineffective assistance. Even if an inaccurate prediction
was made, however, the court’s Rule 11 colloquy with Damyanov, under oath, was sufficient to
make clear the correct circumstances. Damyanov was told of, and indicated he understood, the
possible penalties, up to the maximums, that the court did not have to accept counsels’
recommendation, and that no one could make him “a binding promise” of what the guidelines
range or the sentence would be. (Gov’t Mot. Ex. 2. ECF No. 122-2, at 9:8-10:1, 24:20-25:8.)
See United States v. Foster, 68 F.3d 86, 87-88 (4th Cir. 1995); United States v. Lambey, 974 F.2d
1389, 1394-95 (4th Cir. 1992) (en banc).
Second, Damyanov has not shown that counsel’s purported conflict, assuming one
existed, adversely affected counsel’s performance in any way. See United States v. Nicholson,
611 F.3d 191, 205 (4th Cir. 2010); Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001) (en
banc). As Damyanov admits, counsel did disclose the alleged conflict to him. While a motion to
withdraw was heard, the reasons were unrelated to counsel’s personal experience with identify
theft, and the motion was resolved following a hearing. (ECF Nos. 78, 79, 83). Counsel, an
experienced and highly competent defense attorney, advocated vigorously for Damyanov at
sentencing. There is certainly no reason to believe the sentence would have been lower had
Damyanov chosen to go to trial.
Finally, Damyanov’s claim about the amount of loss and restitution is procedurally
defaulted because it was not raised on direct appeal. Moreover, he was clearly advised at the
Rule 11 hearing that the amount of loss, for both guidelines calculation and for restitution,
remained to be determined by the court. (Gov’t Mot. Ex. 2 at 23:2-22, 24:14-19.) The issue was
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fully heard at sentencing and Damyanov’s counsel’s argument for the lower amount was
rejected. (Gov’t Mot. Ex. 4, ECF No. 122-4, at 7:11-14:15.)
Accordingly, the motion will be denied by separate Order which follows. A certificate of
appealability is not warranted.
July 30, 2014
Date
/s/
Catherine C. Blake
United States District Judge
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