Hayford v. USA
MEMORANDUM DECISION and ORDER DENYING Mr. Hayford's 2255 Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. Signed by Judge Clark Waddoups on 7/1/2011. (ce)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
ANDREW EARL HAYFORD,
Civil Case No. 2:10-cv-302-CW
UNITED STATES OF AMERICA,
Criminal Case No. 2:09-cr-299-1-CW
On April 7, 2010, federal prisoner Andrew Earl Hayford filed a pro se Motion to Vacate,
Set Aside or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255.
Mr. Hayford seeks a one-point downward departure from his sentence and a lowering of the
amount of restitution owed from $160,171.84 to $117,264.12. Mr. Hayford’s sentence was
imposed after he pleaded guilty in the case of United States v. Hayford, Case No. 2:09-CR-299CW (D. Utah). For the reasons set forth below, Mr. Hayford’s §2255 Motion is DENIED.
On July 26, 2010 Mr. Hayford pleaded guilty to a violation of 18 U.S.C. § 669: Theft or
Embezzlement in Connection with Healthcare. A violation of § 669 is a Class C Felony and
carries a maximum penalty of ten years imprisonment and/or a fine of up to $250,000. Mr.
Hayford was sentenced in the United States District Court for the District of Utah to 15 months
imprisonment and a term of supervised release of 36 months. He was ordered to pay restitution
in the amount of $160,171.84 to Optum Health Bank.
In his motion, Mr. Hayford challenges his conviction on three grounds related to alleged
ineffective assistance of counsel. First, Mr. Hayford contends that he provided his attorney,
Wendy Lewis, with information disputing the government’s loss figure. He contends that the
amount of restitution ordered by the court was miscalculated because Ms. Lewis did not
appropriately offer his information. Second, Mr. Hayford contends that his counsel did not
review the Presentence Report (“PSR”) and that, had she reviewed the PSR, a reasonable
attorney in Ms. Lewis’ position would have objected to his criminal history guideline calculation.
Finally, Mr. Hayford contends that his attorney led him to believe he would receive a sentence of
In Strickland v. Washington, the Supreme Court set forth a two-pronged test a defendant
must satisfy to establish a claim for ineffective assistance of counsel. 466 U.S. 668, 687 (1984).
A defendant must establish (1) that his counsel’s performance was constitutionally deficient and
fell below an objective standard of reasonableness; and (2) that this deficient performance
prejudiced the outcome of the defendant’s case. Id. Under the first prong of the test, Mr.
Hayford must show that his counsel’s performance was “outside the wide range of professionally
competent assistance.” Barkell v. Crouse, 468 F.3d 684, 689 (10th Cir. 2006). There is a “strong
presumption” that counsel’s conduct falls within the range of reasonable professional assistance.
Rogers v. United States, 91 F.3d 1388, 1392 (10th Cir. 1996) (quoting Strickland, 466 U.S. at
689). Under the second prong, a defendant must establish a “reasonable probability that ‘but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’”
Barkell, 468 F.3d at 689 (quoting United States v. Stevens, 978 F.2d 565, 568 (10th Cir. 1992)).
Amount of Restitution
Mr. Hayford’s claim that his attorney was ineffective because she did not provide the
court with information disputing the government’s loss figure is without merit. Mr. Hayford
provided one document to his counsel in support of his position that the government’s figure of
$160,171.84 was miscalculated: an e-mail listing 13 transactions that Mr. Hayford alleged were
lawful. He asserts that the relevant transactions in the email were standard payroll deposits from
his employer. But Mr. Hayford’s gross paycheck was approximately $2,038.46 and the lowest
transaction listed on Mr. Hayford’s accounting was for the amount of $3,092.36. Accordingly,
Mr. Hayford needed to explain the difference in those amounts before his counsel could credibly
argue that they were standard pay. Mr. Hayford did not do so. Morever, Mr. Hayford provided
no supporting documentation to his counsel that the information listed was accurate.
Nonetheless, Ms. Lewis put the government on notice that Mr. Hayford was challenging their
loss figure and provided them with Mr. Hayford’s accounting. At sentencing Mr. Hayford did
not provide any details or evidence to dispute the government’s figure other than his list of
transactions he claimed were normal pay. Accordingly, Ms. Lewis diligently presented the
evidence her client gave her and it was a lack of corroboration, not insufficient representation
that discredited Mr. Hayford’s evidence.
Even assuming Ms. Lewis’ performance was constitutionally deficient, Mr. Hayford has
failed to establish that, but for Ms. Lewis’ conduct, the Court would have imposed restitution in
the amount of $117,264.12. Had Mr. Hayford provided Ms. Lewis with evidence sufficient to
dispute the government’s figure, Mr. Hayford has not established a reasonable probability that
the Court would not have adopted the government’s figure. The government offered a detailed
spreadsheet with account numbers, descriptions and offsets. No evidence was presented to the
court to refute this information. Mr. Hayford has thus failed to satisfy either prong of the
Strickland test regarding the restitution issue.
Calculation of Criminal History Points
Mr. Hayford alleges that his counsel failed to review the PSR prior to sentencing. He
contends that, had she reviewed the PSR, she would have objected to a miscalculation of Mr.
Hayford’s criminal history categorization. As a preliminary matter, Mr. Hayford’s allegation that
Ms. Lewis failed to review the PSR prior to sentencing is factually incorrect. Ms. Lewis
responded to the PSR by filing a Sentencing Memorandum with the Court on February 1, 2010.
Moreover, she addressed the PSR at sentencing.
Even assuming Ms. Lewis had failed to review the PSR, however, Mr. Hayford’s
argument is without merit. Mr. Hayford has failed to satisfy the second prong of the Strickland
test because he has not shown that, but for Ms. Lewis’ alleged failure to review the PSR, the
result of his case would have been different. Specifically, as a matter of law, Mr. Hayford would
not have been entitled to the deduction that he claims he should have received. Mr. Hayford
contends that several traffic violations should have been excluded from his Criminal History
under U.S.S.G. § 4A1.2(c). That provision excludes certain misdemeanors, including traffic
violations, from the criminal history calculation. Section 4A1.2(c) provides, however, that such
offenses are counted if “the sentence was a term of probation of more than one year or a term of
imprisonment of at least thirty days.” U.S.S.G. § 4A1.2(c). Because Mr. Hayford’s conviction
for driving on a suspended license resulted in an 18 month probationary sentence, it was proper
to include this offense in the calculation of Mr. Hayford’s criminal history. Accordingly, Mr.
Hayford’s counsel did not err in failing to object to Mr. Hayford being assigned one criminal
history point based on those misdeameanors.
Potential Sentence of Probation
Mr. Hayford’s claim that Ms. Lewis was ineffective because she lead him to believe that
he would likely only receive probation is also without merit. Under the Strickland test, a
defendant must not only establish that his counsel’s performance was constitutionally deficient,
but also that, but for the counsel’s errors, the result of the defendant’s case would have been
different. See 466 U.S. at 687. Here, the government has introduced an affidavit by Ms. Lewis
that disputes Mr. Hayford’s claim that she advised him that a probationary sentence was likely.
In that affidavit, Ms. Lewis avers as follows: “At no time did I tell Mr. Hayford he would get
probation . . . I did tell Mr. Hayford from the beginning that I would argue for a sentence of
probation, which I did both in the sentencing memorandum and in argument before the Court.”
(Lewis Affidavit, ¶ 12.)
Mr. Hayford has not responded to Ms. Lewis’ affidavit. Critically, he has also not
provided any evidence of specific instances or conversations where Ms. Lewis did, in fact, advise
him that probation was likely. Moreover, Mr. Hayford’s Statement in Advance of Plea, signed
by him, clearly acknowledges the penalties and sentence that the Court may impose, that he had
discussed sentencing procedures with his counsel and that the court may impose a sentence
different from any calculations of his attorney. This failure of evidence, along with the strong
presumption that Ms. Lewis’ conduct fell within the range of professionally competent
assistance, defeats Mr. Hayford’s claim that his counsel’s performance was constitutionally
Moreover, even if Ms. Lewis had advised Mr. Hayford that probation was likely, Mr.
Hayford’s argument still fails. That is because he has failed to establish that, but for this error,
the Court would have departed from the 15 to 21 month guideline range and imposed a sentence
of probation. Accordingly, Mr. Hayford has failed to satisfy either prong of the Strickland test.
For the foregoing reasons, Mr. Hayford’s § 2255 Motion to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody is DENIED.
DATED this 1st day of July, 2011.
BY THE COURT:
United States District Court Judge
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