United States District Court, D. Maryland
GARY M. PIERCE,
UNITED STATES OF AMERICA Civil No. CCB-13-744
CATHERINE C. BLAKE, District Judge.
Gary M. Pierce is serving a 72-month sentence in the custody of the United States Bureau of Prisons after pleading guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. He now attacks that sentence via a motion brought under 28 U.S.C. § 2255, arguing that his counsel was constitutionally inadequate. Specifically, Pierce contends that his lawyer furnished ineffective assistance in failing to contest both the inclusion of a sentencing enhancement, U.S.S.G. § 2B1.1(b)(2)(A), in his plea agreement and its subsequent application at sentencing, as well as in failing to advise Pierce sufficiently as to the scope of his appellate rights after sentencing. For the reasons explained below, no hearing is necessary to the resolution of that motion, see 28 U.S.C. § 2255(b), which will be denied.
Pursuant to a plea agreement, Pierce pleaded guilty to conspiring to commit wire fraud in violation of 18 U.S.C. § 1349. ( See Plea Agreement 1-2, ECF No. 6.) The court accepted Pierce's plea. ( See ECF No. 4.)
In that agreement, Pierce acknowledged that he owned and managed a real estate title agency that provided "settlement services to clients who were either buying homes or refinancing existing mortgages." (Plea Agreement 10.) When a consumer entered such a transaction, the lender would wire money to Pierce's settlement agency for the purpose of paying off the existing mortgage on the property. ( See Plea Agreement 10.) Beginning in 2007, Pierce and a co-conspirator began diverting those funds to their own accounts, either by successfully applying for mortgages on property they did not own or by diverting the proceeds of other peoples' mortgages. ( See Plea Agreement 11.) Because existing mortgages on these latter properties were never paid off, clear title could not pass to the new borrower. ( See Plea Agreement 12.) Once the scheme was discovered, therefore, three title insurers that had guaranteed the quality of title-specifically, First American Title Insurance, Security Title Insurance of Baltimore, and Chicago Title Insurance Company-were obligated to liquidate these unpaid debts to create clear title. ( See Plea Agreement 12.) Pierce and his co-conspirator ultimately diverted nearly five million dollars in funds that lenders had entrusted to them to pay off existing mortgages on 17 properties. ( See Plea Agreement 12-13.)
Under his plea agreement, Pierce:
waive[d] all right, pursuant to 18 U.S.C. § 3742 or otherwise, to appeal whatever sentence is imposed (including the right to appeal any issues that relate to the establishment of the advisory guidelines range, the determination of the defendant's criminal history, the weighing of the sentencing factors, and the decision whether to impose and the calculation of any term of imprisonment, fine, order of forfeiture, order of restitution, and term or condition of supervised release), except... [that Pierce] reserves the right to appeal any term of imprisonment to the extent that it exceeds 78 months' imprisonment...
(Plea Agreement 7.)
During Pierce's sentencing hearing, the government presented the testimony of three victims. A representative of Security Title stated that the insurer sustained losses amounting to $841, 341.92 as a consequence of Pierce's fraud. ( See Tr. 23.) An individual homeowner testified to the substantial stress induced by learning of the unpaid debt on her home, which remained unsettled at the time of the sentencing hearing. ( See Tr. 31.) A second homeowner offered similar testimony, specifying that he spent months seeking to avoid foreclosure of his home and rectifying the adverse events recorded in his credit history. ( See Tr. 35-37.) His problems, too, remained unresolved at the time of the sentencing hearing. ( See Tr. 37.) No other victims testified at the hearing. And the presentence report listed as victims only the three title insurance companies.
At sentencing, the court determined that the United States Sentencing Guidelines advised a term of imprisonment of between 87 and 108 months. ( See Sentencing Transcript 60, ECF No. 41; Statement of Reasons 1, ECF No. 39.) The court premised that conclusion on calculating an offense level of 29 and a criminal history category of I. ( See id. ) Pierce's base offense level was 7. See U.S.S.G. §§ 2X1.1, 2B1.1(a)(1). The magnitude of the loss caused by Pierce's conduct increased the offense level by 18 points. See U.S.S.G. § 2B1.1(b)(1)(J). Pierce's abuse of the trust placed in him by his clients increased the offense level by another 2 points. See U.S.S.G. §3B1.3. Over Pierce's objection, the court applied an additional 2-level increase for Pierce's use of sophisticated means to avoid the detection of his scheme. See U.S.S.G. § 2B1.1(b)(10)(C). And, without objection from either party, the court applied a 2-level increase because Pierce's offense involved 10 or more victims. See U.S.S.G. § 2B1.1(b)(2)(A). Over the government's objection, the court decreased the offense level by two points in recognition of Pierce's acceptance of responsibility. See U.S.S.G. § 3E1.1(a). The government declined to move for an additional one-level reduction. See U.S.S.G. § 3E1.1(b).
Notwithstanding the sentence advised by the guidelines, the court imposed a 72-month prison term. ( See Tr. 82; Judgment 1, ECF No. 38.) After consideration of the factors enumerated in 18 U.S.C. § 3553(a), the court concluded that such a sentence "is sufficient without being greater than necessary.... to recognize the seriousness of this offense and deter others, without unduly punishing Mr. Pierce." (Tr. 82.) Even if application of the two-level enhancement Pierce contests in this motion was erroneous, it would not change this court's determination that a 72-month sentence was reasonable under 18 U.S.C. § 3553(a).
At the conclusion of the sentencing hearing, the court stated that Pierce could consult with his attorney about the possibility of an appeal, although the court indicated that it was unlikely that Pierce had "anything... to appeal from." (Tr. 86.) Pierce never filed a notice of appeal. Instead, he filed this motion, after the time for an appeal had run.
The familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), governs Pierce's claims that defense counsel rendered ineffective assistance in violation of the Sixth Amendment, both during plea negotiations and sentencing. See, e.g., Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (plea negotiations); Glover v. United States, 531 U.S. 198, 200 (2001) (sentencing). "[T]o establish ineffective assistance, [Pierce] must show (1) that his attorney's performance fell below an objective standard of reasonableness and (2) that he experienced prejudice as a result, meaning that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" United States v. Dyess, 730 F.3d 354, 361 (4th Cir. 2013) (quoting United States v. Fugit, 703 F.3d 248, 259 (4th Cir. 2012)). "[I]n evaluating counsel's performance, [courts] must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States ...