Pavlock v. USA

Filing 50

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 40 , DENYING PETITION FOR HABEAS CORPUS PURSUANT TO 2255 (DKT. NO. 1 ), AND DENYING CERTIFICATE OF APPEALABILITY. The Court adopts the Magistrate Judge's 40 Report and Recommendation, overrules Pavlock's objections (Dkt. Nos. 48 and 49 , denies the Petitioner's 1 Motion to Vacate/Set Aside/Correct Sentence (2255) and Orders this case be DISMISSED WITH PREJUDICE and stricken from the Docket of t his Court. The Clerk is directed to enter a separate judgment order in this matter. Signed by District Judge Irene M. Keeley on 4/14/17. (To Petitioner via cert. mail)(mh) (Additional attachment(s) added on 4/14/2017: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL J. PAVLOCK,
Petitioner,
v.

//

CIVIL ACTION NO. 1:14CV72
CRIMINAL ACTION NO. 1:10CR07-1
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
On

April

21,

2014,

the

petitioner,

Michael

J.

Pavlock

(“Pavlock”), filed a motion pursuant to 28 U.S.C. § 2255 to vacate,
set aside, or correct sentence (“Petition”) (Dkt. No. 1). Pavlock
claims he was deprived of his Sixth Amendment right to effective
assistance of appellate counsel (Dkt. Nos. 35-1 at 2; 35-2 at 2).
Pursuant to 28 U.S.C. § 636 and LR PL P 2, the Court referred the
Petition

to

Magistrate

the
Judge,

Honorable
for

Robert

initial

W.

review.

Trumble,
On

United

August

States

11,

2016,

Magistrate Judge Trumble filed a Report and Recommendation (“R&R”),
recommending

that

the

Petition

be

denied

and

dismissed

with

prejudice (Dkt. No. 40).
After receiving an extension of time in which to object,
Pavlock filed timely objections to the R&R on September 15, 2016
(Dkt. Nos. 45; 46; 48; 49). Following due consideration of the R&R
and Pavlock’s objections, the Court OVERRULES the objections (Dkt.

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
Nos. 48; 49), ADOPTS the R&R (Dkt. No. 40), DENIES the Petition,
and DISMISSES it WITH PREJUDICE (Dkt. No. 1).
I. BACKGROUND
A.

Conviction, Sentence, and Appeal1
On January 5, 2010, a grand jury in the Northern District of

West Virginia returned a fifteen count indictment alleging that
Pavlock was the architect of a financial scheme dubbed the “1999
Settlement Agreement” (Dkt. Nos. 1; 497 at 245-46). Counts One
through Twelve charged wire fraud in violation of 18 U.S.C. §§ 1343
and 2; Counts Thirteen through Fifteen charged false entries in a
bankruptcy document in violation of 18 U.S.C. §§ 1519 and 2 (Dkt.
No. 1). At the conclusion of an eight-day trial, on December 20,
2010, the jury convicted Pavlock on all counts (Dkt. No. 293).
On August 22, 2011, the Court sentenced Pavlock to 324 months
of imprisonment, followed by three years of supervised release
(Dkt. No. 434). The lengthy prison term was in part a consequence
of the application of two enhancements under the United States
Sentencing Guidelines (“U.S.S.G.”). The Court applied a two-level
enhancement pursuant to U.S.S.G. § 3B1.3 after finding that Pavlock

1

Unless otherwise noted, docket entries in this section refer
to Criminal Action No. 1:10cr7-1.
2

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
had abused a position of trust. It also applied an additional twolevel enhancement under U.S.S.G. § 3A1.1(b)(1) after finding that
the offense involved a vulnerable victim (Dkt. No. 497 at 245-46,
257-58).
After

Pavlock

appealed

(Dkt.

No.

446),

challenging

the

sufficiency of the evidence, the Court of Appeals for the Fourth
Circuit affirmed his conviction on September 20, 2012. United
States v. Pavlock, 494 F. App’x 366 (4th Cir. 2012) (unpublished
decision).

Following

this

unsuccessful

appeal,

Pavlock

twice

unsuccessfully petitioned the Supreme Court of the United States
for a writ of certiorari (Dkt. No. 35 at 2-3).
B.

§ 2255 Petition
Pavlock’s habeas petition, filed on April 21, 2014, asserted

45 grounds for relief (Dkt. No. 1). Thereafter, Magistrate Judge
Trumble permitted Pavlock to withdraw or waive various grounds for
relief. In order to avoid confusion, Magistrate Judge Trumble also
directed Pavlock to re-file his Petition and specifically identify
the grounds for relief that he intended to pursue (Dkt. No. 29).
Pavlock did so on August 9, 2016, refining his Petition to assert
only two grounds for relief, each of which alleged ineffective
assistance of his counsel on direct appeal (Dkt. No. 35).
3

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
Pavlock claims that his appellate counsel failed to challenge
the Court’s application of the “position of trust” and “vulnerable
victim” enhancements under the guidelines (Dkt. Nos. 35-1 at 2; 352 at 2), and seeks a “[n]ew appeal, new trial, [and] remand for
resentencing” (Dkt. No. 35 at 13).
C.

Report and Recommendation
The R&R recommended that the Court deny the Petition (Dkt. No.

40 at 10). Magistrate Judge Trumble reviewed the findings made at
Pavlock’s sentencing hearing and concluded the Court had properly
applied the sentencing enhancements at issue when it increased
Pavlock’s guideline range. Id. at 6, 8. He therefore concluded that
Pavlock “cannot establish that his counsel was ineffective for
failing to raise a meritless argument.” Id. at 8-9.
II. STANDARDS OF REVIEW
A.

Magistrate Judge’s R&R
When reviewing a magistrate judge’s R&R made pursuant to 28

U.S.C. § 636, the Court must review de novo only the portions of
the
§

R&R

to

which

636(b)(1)(C).

an

objection

Otherwise,

“the

is

timely

Court

may

made.

28

adopt,

U.S.C.
without

explanation, any of the magistrate judge’s recommendations to which
the prisoner does not object.” Dellacirprete v. Gutierrez, 479 F.
4

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
Supp. 2d 600, 603-04 (N.D.W. Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those portions
of a recommendation to which no objection has been made unless they
are “clearly erroneous.” See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
B.

Pro Se Pleadings
The Court must liberally construe pro se pleadings. Estelle v.

Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978). A pro se petition is subject to dismissal,
however, if the Court cannot reasonably read the pleadings to state
a valid claim on which the plaintiff could prevail. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not
construct the petitioner’s legal arguments for him, nor should it
“conjure up questions never squarely presented.” Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
III. APPLICABLE LAW
Under 28 U.S.C. § 2255(a), a prisoner may move his sentencing
court “to vacate, set aside or correct” a sentence if he claims it
“was imposed in violation of the Constitution or laws of the United
States.” A prisoner’s sentence violates the Constitution if he was
deprived of his Sixth Amendment right to the effective assistance
5

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
of appellate counsel. See Richardson v. Branker, 668 F.3d 128, 139
n.10 (4th Cir. 2012). In Strickland v. Washington, the Supreme
Court of the United States articulated the now-familiar two-prong
test for assessing the assistance of counsel. 466 U.S. 668 (1984).
In order to establish a violation of his Sixth Amendment rights, a
defendant

must

demonstrate

“that

counsel’s

performance

was

deficient” and “that the deficient performance prejudiced the
defense.” Id. at 687.
The “performance prong” requires establishing that “counsel’s
representation fell below an objective standard of reasonableness.”
Id. at 687-88. There is a “strong presumption” that the conduct at
issue is reasonable on the “wide range of reasonable professional
assistance.”

Id.

at

689.

Appellate

counsel’s

performance

is

deficient, however, when he fails to raise issues on appeal that
are clearly stronger than those actually asserted. See Smith v.
Robbins, 528 U.S. 259, 288 (2000).
Under the “prejudice prong,” the defendant must establish that
“there

is

a

reasonable

probability

that,

but

for

counsel’s

unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. When the defendant claims
ineffective assistance of appellate counsel, he must demonstrate a
6

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
reasonable probability that he would have prevailed on direct
appeal

had

his

representation.

counsel

United

provided

States

v.

objectively

Rangel,

781

reasonable

F.3d

736,

745

(4th Cir. 2015) (citing Smith, 528 U.S. at 285-86).
The Court is free to bypass analysis of the performance prong
if it considers the prejudice prong dispositive. See Strickland,
466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.”).2 In
regard to guideline calculations, the Fourth Circuit reviews legal
conclusions de novo and factual findings for clear error. United
States v. McKenzie-Gude, 671 F.3d 452, 463 (4th Cir. 2011).
IV. DISCUSSION
The Court reviews Pavlock’s specific objections to the R&R’s
findings de novo. See 28 U.S.C. § 636(b)(1)(C). Following such
review,

including

the

transcripts

from

Pavlock’s

trial

and

sentencing, the Court agrees with the magistrate judge that, even
if Pavlock has identified stronger claims that his appellate
counsel

should

have

presented,

2

those

claims

did

not

have

a

Pavlock’s objection that the R&R failed to properly analyze
the performance prong is thus without merit (Dkt. No. 49 at 1).
7

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
reasonable probability of success, and he has not been prejudiced
within the meaning of the test in Strickland. Pavlock’s claims for
ineffective assistance of counsel therefore fail. See Strickland,
466 U.S. at 694.
A.

“Position of Trust” Enhancement
Magistrate Judge Trumble concluded that Pavlock’s conduct

satisfied

the

requirements

for

imposition

of

a

two-level

enhancement under U.S.S.G. § 3B1.3 for abusing a position of trust
(Dkt. No. 40 at 7-8). Pavlock objects that he merely “fulfilled the
position of a mediator,” and that the R&R improperly relied on
United States v. Bollin, 264 F.3d 391 (4th Cir. 2001) (Dkt. No. 49
at 2). After reviewing the record, however, it is clear that
application of the enhancement was supported by the evidence and
Pavlock had no reasonable probability of successfully appealing on
this issue. See Rangel, 781 F.3d at 745.
U.S.S.G. § 3B1.3 provides for a two-level enhancement “[i]f
the defendant abused a position of public or private trust . . . in
a

manner

concealment

that
of

significantly

facilitated

the

Such

offense.”

a

the

position

commission
of

trust

or
is

“characterized by professional or managerial discretion (i.e.,

8

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
substantial

discretionary

judgment

that

is

ordinarily

given

considerable deference).” U.S.S.G. § 3B1.3, Application Note 1.
“The sometimes difficult inquiry into what constitutes a
‘position of trust’ . . . ‘must focus on the relationship between
the defendant and the victim from the perspective of the victim.’”
United States v. Ebersole, 411 F.3d 517, 536 (4th Cir. 2005)
(quoting United States v. Caplinger, 339 F.3d 226, 236 (4th Cir.
2003)). Importantly, in the case of fraud, “where every defendant
will have gained the confidence and trust of the victim,” something
additional must justify the enhancement. Id. (citing Caplinger,
339 F.3d at 236-37).
“[A]pplication of the enhancement requires more than a mere
showing that the victim had confidence in the defendant. Something
more akin to a fiduciary function is required.” Id. (quoting
Caplinger, 339 F.3d at 237). “A sentencing court must carefully
distinguish between those arms-length commercial relationships
where trust is created by the defendant’s personality or the
victim’s

credulity

and

those

‘where

a

fiduciary

or

personal

relationship exists with [the victim] and the defendant takes
advantage

of

the

relationship

to

perpetrate

or

conceal

the

offense.” Caplinger, 339 F.3d at 237. A key consideration is
9

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
“whether the defendant has broad discretion to act on behalf of the
victim and the victim believes the defendant will act in the
victim’s best interest.” Bollin, 264 F.3d at 416 (quoting United
States v. Davuluri, 239 F.3d 902, 909 (7th Cir. 2001)).
In Ebersole, the case on which Pavlock relies to support his
argument, the defendant was the president and director of Detector
Dogs Against Drugs and Explosives, Inc. (“Detector Dogs”), a
business

that

trained

dogs

and

handlers

to

find

drugs

and

explosives. 411 F.3d at 520. Following the terrorist attacks on
September 11, 2001, Detector Dogs contracted with a number of
federal agencies to provide explosive ordnance detection services.
Both the dogs and handlers, however, lacked proper training,
knowledge, and experience. Id. at 521.
After several federal agencies terminated contracts with
Detector Dogs, the government charged the defendant with multiple
counts of wire fraud and presenting false claims to the government.
Id. at 523. Ultimately, a jury convicted the defendant on all
counts. Id. at 524. At sentencing, the district court applied the
“position of trust” enhancement. Id. at 535. The Fourth Circuit
vacated the defendant’s sentence on the basis that the “arms-length

10

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
commercial relationship” on which the district court had relied
could not support the enhancement. Id. at 536.
The

circumstances

in

Pavlock’s

case

are

clearly

distinguishable, and simply cannot be characterized as “armslength.” At sentencing, the Court summarized the relevant evidence
as follows:
[Pavlock] had been granted unfettered discretion over the
monies and assets entrusted to him by the so-called
investors, the members of the 1999 Settlement Agreement.
He was the mastermind of that agreement. He was more
culpable than any of his associates involved in that
agreement. He persuaded numerous persons to lend him
money and to work for him through using the illusion that
he had legitimate business activities and financial
success.
. . . [T]he abuse of the position of trust was an
integral component of his commission of the offense here
and also his concealment of the offense. [Three
witnesses] testified he was the only one who understood
the agreement and who could resolve their disputes
through the agreement and he convinced them, as part of
his scheme, that they could earn profitable returns on
their investments by entrusting the money to Mr. Pavlock.
. . . He convinced the members of the 1999 Settlement
Agreement that they just couldn't understand the
complexity of the scheme and that he alone could solve
their problems . . . .
. . . Pavlock was the only one in charge of the
complex scheme. As a part of that scheme he made bold
declarations and statements regarding business activity
which could never be verified or overseen by anybody
because he had all the information, to the extent it even
existed. So he gained the trust of his victims, including
11

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
"investors"
employees.

in

his

enterprises

and

even

his

own

(Crim. No. 1:10cr7-1, Dkt. No. 497 at 245-46).
This factual summary was drawn from witness testimony at
trial. For example, one party to the Settlement Agreement, Robert
Konchesky (“Mr. Konchesky”), testified that there was no way he
could know how much or in what manner Pavlock spent money in
connection with the agreement (Crim. No. 1:10cr7-1, Dkt. No. 347 at
14). Nonetheless, Mr. Konchesky trusted Pavlock and invested money
at Pavlock’s direction because he trusted that Pavlock would make
good business decisions. Id. at 10, 29. He gave Pavlock sole
discretion over how the money was to be spent on businesses related
to the Settlement Agreement, and trusted him to spend it in
furtherance of the agreement (Crim. No. 1:10cr7-1, Dkt. No. 346 at
288, 293).
Another party to the agreement, Spencer Graham, testified that
Pavlock had “intense knowledge of what [was] going on with all
these different organizations . . . and the stake holders in the
Settlement Agreement” (Crim. No. 1:10cr7-1, Dkt. No. 349 at 153).
Graham could not explain the import of certain documents he had

12

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
executed, but had “all the confidence in the world that [Pavlock]
knew how [it] would work.” Id. at 179-80.
Similarly, James Hall, who was involved with the Settlement
Agreement

and

had

been

identified

as

a

victim

in

the

case,

described Pavlock as the “architect” and “head” of the agreement,
a task that Pavlock reportedly assumed of his own volition (Crim.
No. 1:10cr7-1, Dkt. No. 346 at 188-90, 226). Hall testified that he
could not follow the workings of the agreement as it changed over
time. Id. at 189.
This evidence more than supported the application of the
position

of

trust

enhancement

under

the

Guidelines.

Although

Pavlock characterizes himself as a mere “mediator” (Dkt.No. 49 at
1-2), those involved in the agreement testified that they did not
understand the effect of certain documents or how the agreement as
a whole fit together, but nonetheless trusted Pavlock to carry out
the agreement.3 United States v. Brack, 651 F.3d 388, 393 (4th Cir.
3

Pavlock also argues that, because he “doesn’t have an MBA
[or] a license to practice anything” (Dkt. No. 35-2 at 8), and
because he never falsely held himself out as a professional, the
Court erred in applying the position of trust enhancement (Dkt. No.
49 at 2). Although the record reflects that Pavlock may have, in
fact, held himself out as having special knowledge (Crim. No.
1:10cr7-1, Dkt. No. 346 at 205), such a finding is by no means
necessary. Rather, the requisite “fiduciary function” exists if
“the defendant has broad discretion to act on behalf of the victim
13

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
2011) (quoting United States v. Akinkoye, 185 F.3d 192, 203
(4th Cir. 1999)) (rejecting “a mechanistic approach to the abuse of
trust enhancement that excludes defendants from consideration based
on their job titles”). Such testimony established that Pavlock
possessed complete “managerial discretion” over the monies and
assets of others, and that his decisions were given “considerable
deference” by those involved in the agreement. See U.S.S.G. §
3B1.3, Application Note 1.
This “broad discretion to act on behalf of the victim[s]”
demonstrates that Pavlock maintained exactly the type of “fiduciary
function” contemplated by U.S.S.G. § 3B1.3. Bollin, 264 F.3d at
416. Importantly, it was Pavlock’s discretion that significantly
facilitated his commission of the offense; because of their lack of
understanding, his associates and victims could not easily detect
when he handled matters improperly and to their detriment. See
Brack, 651 F.3d at 393.
Thus, even had Pavlock’s appellate counsel argued that the
Court improperly applied the enhancement under U.S.S.G. § 3B1.3,
and the victim believes the defendant will act in the victim’s best
interest.” Bollin, 264 F.3d at 416. In Bollin, for instance, the
defendant’s misrepresentations concerning his skill and experience
allowed him to obtain broad discretion. Id. Nonetheless, such broad
discretion can be acquired by other means.
14

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
that argument had no reasonable probability of success. Therefore,
Pavlock was not prejudiced within the meaning of Strickland, and
his claim for ineffective assistance of counsel on this ground
fails.
B.

“Vulnerable Victim” Enhancement
Magistrate Judge Trumble recommended that Pavlock’s conduct

satisfied

the

requirements

for

imposition

of

a

two-level

enhancement under the guidelines because the offense involved a
vulnerable victim (Dkt. No. 40 at 8-9). Pavlock objects that (1)
the magistrate judge failed to review the record; (2) the Court
credited

incredible

testimony;

and

(3)

the

Court

failed

to

establish a sufficient nexus (Dkt. No. 49 at 3-4). The record,
however,

establishes

that

application

of

the

enhancement

was

appropriate, and that any argument to the contrary would have had
no reasonable probability of success on appeal. See Rangel, 781
F.3d at 745.
U.S.S.G. § 3A1.1(b)(1) provides for a two-level enhancement
“[i]f the defendant knew or should have known that a victim of the
offense was a vulnerable victim.” In analyzing the application of
the enhancement, a court must undertake a two step inquiry. “First,
a sentencing court must determine that a victim was unusually
15

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
vulnerable.

Second,

the

court

must

then

assess

whether

the

defendant knew or should have known of such unusual vulnerability.”
United States v. Etoty, 679 F.3d 292, 294 (4th Cir. 2012) (quoting
United States v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010)).
A vulnerable victim is one who is both a victim of the offense
of conviction and “who is unusually vulnerable due to age, physical
or mental condition, or who is otherwise particularly susceptible
to the criminal conduct.” U.S.S.G. § 3A1.1, Application Note 2.
Importantly, a victim cannot be considered vulnerable simply by
nature of her membership in a defined class. United States v.
Elkins,

296

F.

App’x

306,

308

(4th

Cir.

2008)

(unpublished

decision) (citing United States v. Frank, 247 F.3d 1257, 1260
(11th Cir. 2001)). Rather, “[t]here must be some nexus between the
victim’s vulnerability and the crime’s success.” Id. (citing United
States v. Hawes, 523 F.3d 245, 255 (3d Cir. 2008)). The defendant
need

not

know

the

exact

source

or

extent

of

the

victim’s

vulnerability; he need only know that the vulnerability exists.
Etoty, 679 F.3d at 296-97.
In Pavlock’s case, the relevant victim was Edith Konchesky
(“Ms. Konchesky”). At sentencing, the Court found as follows:

16

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
Ms. Konchesky began giving substantial amounts of money
to Mr. Pavlock in 2005 when she was 76 years of age. Ms.
Gratz testified at trial that in 2006, during the
negotiations to purchase the limousine service, the
defendant stated he believed Ms. Konchesky suffered from
Alzheimer's disease and that he would get the money to
pay for the limousine once he became Ms. Konchesky's
power of attorney.
Within the past year, and I'm taking that from 2010
to now, Ms. Konchesky was diagnosed with dementia and
prior to that on March 20th of 2009, Brian Fox, the Case
Agent, interviewed Lisa Swope who was the Trustee for the
bankruptcy of Earl and Karen Swaney and Ms. Swope advised
him that on one occasion the defendant brought Ms.
Konchesky to her office and she appeared to be lost and
not to understand why she was present or what was going
on.
Karen Hall, who was the Conservator for Ms.
Konchesky, supported that observation by stating that Ms.
Konchesky was not able to take care of affairs and
[]needed assistance from an outside party.
(Crim. No. 1:10cr7-1, Dkt. No. 497 at 256-57). At trial, the
following exchange took place between the Government and its
witness Trudy Gratz (“Mrs. Gratz”):
Q.

[D]id Mr. Pavlock ever come to your house and talk
to you about [the limousines] or business deals?

A.

Yes.

Q.

Do you recall any conversations Mr. Pavlock had
with you about Edith Konchesky?

A.

Yes.

17

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
Q.

Could you please describe what Mr. Pavlock said at
that time?

A.

Well he had come to my house one day and we were
discussing the sale of the limousines and the fact
that we needed paid and he had stated that Edith
was getting Alzheimer's and that he was going to
get a power of attorney on her or possibly that he
already had one and that we would be able to get
our money soon for that.

Q.

Did he explain why you'd be able to get your money
soon?

A.

Because he was going to be able to have the power
of attorney with Edith and that's where the money
would come from.

(Crim. No. 1:10cr7-1, Dkt. No. 350 at 128-29).
Mrs.

Gratz’s

testimony,

in

conjunction

with

the

Court’s

findings, satisfied the two critical requirements for application
of the “vulnerable victim” enhancement, that is, that Ms. Konchesky
was unusually vulnerable due to her age and mental condition, and
that Pavlock knew of her vulnerability. See Etoty, 679 F.3d at
294.4
Pavlock does not dispute that Ms. Konchesky was elderly at the
time of the offense and that she was diagnosed with dementia some

4

No authority supports Pavlock’s argument that the Court had
to find that he knew specifically of Ms. Konchesky’s onset of
dementia, or that Ms. Konchesky actually had dementia during the
events in question (Dkt. No. 49 at 3).
18

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
time after the grand jury indicted him. Although Pavlock disputes
Mrs. Gratz’s credibility (Dkt. No. 49 at 3), there is no clear
error in the Court’s finding that her testimony was “particularly
probative” (Crim. No. 1:10cr7-1, Dkt. No. 497 at 258). McKenzieGude, 671 F.3d at 463. Her testimony established that, as early as
2006, Pavlock was aware of Ms. Konchesky’s deteriorating mental
condition and had expressed his intent to others to use her
condition to further his fraudulent activities. In sum, Pavlock’s
knowledge of Ms. Konchesky’s vulnerability, and his expressed
intent to exploit it established the requisite nexus to the crime’s
success. Elkins, 296 F. App’x at 308.
Any argument that the Court improperly applied the enhancement
under U.S.S.G. § 3A1.1(b)(1) had no reasonable probability of
success on appeal. Therefore, Pavlock was not prejudiced within the
meaning of Strickland, and his claim for ineffective assistance of
counsel on this ground fails.
V. CONCLUSION
In conclusion, for the reasons discussed, the Court:
1.

ADOPTS the R&R (Dkt. No. 40);

2.

OVERRULES Pavlock’s objections (Dkt. Nos. 48; 49);

3.

DENIES Pavlock’s § 2255 Petition (Dkt. No. 1); and
19

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
4.

ORDERS that this case be DISMISSED WITH PREJUDICE and
STRICKEN from the docket of this Court.

It is so ORDERED.
CERTIFICATE OF APPEALABILITY
Pursuant

to

Rule

11(a)

of

the

Rules

Governing

§

2255

Proceedings, the district court “must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant” in such a case. If the court denies the certificate, “a
party may not appeal the denial but may seek a certificate from the
court of appeals under Federal Rule of Appellate Procedure 22.” 28
U.S.C. foll. § 2255(a).
The Court finds it inappropriate to issue a certificate of
appealability in this matter because Pavlock has not made a
“substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by
demonstrating

that

reasonable

jurists

would

find

that

any

assessment of the constitutional claims by the district court is
debatable or wrong, and that any dispositive procedural ruling by
the

district

court

is

likewise

debatable.

See

Miller–El

v.

Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,

20

PAVLOCK V. USA

1:14CV72

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 40], DENYING PETITION FOR HABEAS CORPUS PURSUANT TO
§ 2255 [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
the Court concludes that Pavlock has failed to make the requisite
showing, and DENIES a certificate of appealability.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, certified mail,
return receipt requested, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED:

April 14, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

21