A claim of ineffective assistance of counsel is best addressed through a collateral attack via a motion for relief under section 2255 rather than on direct appeal.
A defendant convicted of possessing a counterfeit state security appeals his sentence, arguing that the district court committed plain error by using an intended loss figure significantly higher than the ordered restitution amount. The court reviews the claim under the plain error standard. The court applies the rule that the Sentencing Guidelines require loss to be the greater of actual or intended loss, while restitution must reflect the actual loss caused by the defendant's conduct. Because these figures serve different purposes and may legitimately diverge, the court finds no error in the sentencing calculation. The court also declines to address the ineffective assistance of counsel claim on direct appeal, holding that the record is not sufficiently developed and that a collateral attack is the preferred avenue for such challenges. The court affirms the judgment.
At page 1328 Analyzing ineffective assistance of counsel claims on direct appeal98 citing cases“the preferred means for deciding a claim of ineffective assistance of counsel is through a 28 u.s.c. 2255 motion even if the record contains some indication of deficiencies in counsel's performance.”
- United States v. Robert "Bob" Johnson, Jr., No. 21-12959 (11th Cir. Apr. 7, 2022).unpublished(We will not generally consider claims of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a factual record.)
- United States v. Aziz Choukri, No. 25-11537 (11th Cir. Jan. 14, 2026).unpublished(We will not generally consider claim of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a factual record.)
- United States v. James Russell Johnson, No. 20-11722 (11th Cir. Aug. 26, 2020).unpublished(The preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion . . . .)
- United States v. Beatriz Toledo, No. 25-10984 (11th Cir. Feb. 27, 2026).unpublishedWe agree that this claim is not sufficiently developed, so we affirm Toledo’s convictions “without prejudice to the right of [Toledo] to raise the issue of ineffective assistance of counsel in a proper proceeding pursuant to 28 U.S.C. § 22…
- United States v. Michael Shirley, No. 24-10937 (11th Cir. Feb. 6, 2026).unpublishedIn such a case, “the preferred means for deciding [these ineffective assistance of counsel claims] is through a 28 U.S.C. § 2255 motion.” See United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010).
- United States v. Juan Antonio Garcia, No. 25-10518 (11th Cir. Jan. 12, 2026).unpublishedUnited States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010).
- United States v. Marcus D. Flintroy, No. 23-13519 (11th Cir. Sept. 30, 2025).unpublished“The preferred means for deciding” these claims “is through a 28 U.S.C. [section] 2255 motion[,] ‘even if the record contains some indication of deficiencies in counsel’s performance.’” United States v. Patterson, 595 F.3d 1324, 1328 (11th…
- Malara v. United States, No. 8:23-cv-00742 (M.D. Fla. Oct. 21, 2024).The circuit court “’will not generally consider claims of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a factual record.’” United States v. Patterson, 595 F.3d 1…
- United States v. Keenan Seraphin, No. 23-10223 (11th Cir. Oct. 16, 2024).unpublishedBut we generally do not consider ineffective assistance of counsel claims for the first time on appeal, Dohrmann v. United States, 442 F.3d 1279, 1282 (11th Cir. 2006), and will do so only where “the record is sufficiently developed,” Unit…
- United States v. Nettisia Mitchell, No. 22-13571 (11th Cir. May 30, 2024).unpublished(explaining that the preferred method is 28 U.S.C. § 2255 motions)
Show 88 more citing cases
- United States v. Darrell Michael Britt, No. 23-10829 (11th Cir. May 21, 2024).unpublishedINEFFECTIVE ASSISTANCE OF COUNSEL We will not generally consider claims of ineffective assistance of counsel raised on direct appeal “where the district court did not entertain the claim nor develop a factual record.” United States v. Patt…
- United States v. Nihad Al Jaberi, 97 F.4th 1310 (11th Cir. 2024).published“The preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion ‘even if the record contains some indication of deficiencies in counsel’s performance.’” United States v. Patterson, 595 F.…
- United States v. Jamesetta Whipple-Duncan, No. 22-11806 (11th Cir. Mar. 7, 2024).unpublishedAlthough a claim of ineffective assistance of counsel may be raised on direct appeal, “[w]e will not generally consider [a] claim[] of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the…
- Lockett v. United States, No. 7:20-cv-08036 (N.D. Ala. Oct. 27, 2023).On appeal, the Eleventh Circuit informed Lockett that “a motion for habeas corpus under 28 U.S.C. § 2255 remains ‘[t]he preferred means for deciding a claim of ineffective assistance of counsel.’” Id. at 2 . (quoting United States v. Patte…
- United States v. Andres Camilo Ruiz, No. 21-14299 (11th Cir. Feb. 8, 2023).unpublishedIn any event, we have stated that the “preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion even if the record contains some indication of deficiencies in counsel’s performance.” Un…
- United States v. George Williams, Jr., No. 22-11208 (11th Cir. Jan. 26, 2023).unpublishedUnited States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010).
- United States v. Muller Vedrine, No. 21-13624 (11th Cir. Nov. 29, 2022).unpublishedFirst, “[w]e will not generally consider claims of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a factual record.” United States v. Patterson, 595 F.3d 1324, 132…
- United States v. Brian Keith Morrow, No. 21-14056 (11th Cir. Nov. 10, 2022).unpublishedIndeed, we have explained that “when a sentencing court is determining the proper punishment for a defendant’s fraud, the court uses the reasonable USCA11 Case: 21-14056 Date Filed: 11/10/2022 Page: 5 of 8 mathematical limit of his scheme,…
- United States v. Jocelyn Antonia Lynch, No. 21-13385 (11th Cir. Nov. 9, 2022).unpublishedThe preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion, “even if the record contains some indication of deficiencies in counsel’s performance.” United States v. Patterson, 595 F.3…
- United States v. Stanley Young, No. 21-10383 (11th Cir. May 2, 2022).unpublishedGenerally, we will not consider a claim of ineffective assistance of counsel raised for the first time on direct appeal if the district court did not “entertain the claim nor develop a factual record.” United States v. Patterson, 595 F.3d…
- United States v. Ernesto Rivera-Rodriguez, No. 21-10082 (11th Cir. Apr. 27, 2022).unpublished“The preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion even if the record contains some indication of deficiencies in counsel’s performance.” United States v. Patterson, 595 F.3d…
- United States v. Melvin Martinez, No. 21-10261 (11th Cir. Mar. 21, 2022).unpublished“The preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion.” United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010).
- United States v. Cedric O. Valentine, No. 21-11999 (11th Cir. Feb. 9, 2022).unpublishedUSCA11 Case: 21-11999 Date Filed: 02/09/2022 Page: 3 of 4 Generally, “[w]e will not . . . consider [a] claim[] of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a…
- Kennon v. United States, No. 8:19-cv-03150 (M.D. Fla. Dec. 8, 2021).This is because “[w]hen an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often…
- United States v. Arafat Aljubeh, No. 20-13900 (11th Cir. Aug. 2, 2021).unpublishedThat is so even if the record on appeal “contains some indication of deficiencies in counsel’s performance.” 3 USCA11 Case: 20-13900 Date Filed: 08/02/2021 Page: 4 of 7 United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010) (quot…
- United States v. Victor Manuel Abreu, 840 F. App'x 457 (11th Cir. 2020).unpublished“The preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion even if the record contains some indication of deficiencies 9 USCA11 Case: 20-12208 Date Filed: 12/30/2020 Page: 10 of 10 i…
- United States v. Ricky Fernetus, 838 F. App'x 426 (11th Cir. 2020).unpublishedUnited States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010). 10 USCA11 Case: 19-10762 Date Filed: 12/16/2020 Page: 11 of 24 McGregor’s motion), and the testimony of one of the Miami-Dade police officers—could not have been elicited at…
- United States v. Jayston Darnell Fails, No. 19-14802 (11th Cir. Sept. 16, 2020).unpublishedUnited States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010); see Massaro v. United States, 538 U.S. 500, 509 (2003) (holding that failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar a defendant fr…
- Herbert Clifton Hector v. United States, No. 19-13128 (11th Cir. July 27, 2020).unpublishedUnited States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010). 6 Case: 19-13128 Date Filed: 07/27/2020 Page: 7 of 9 III.
- United States v. Patrick O'Neal Kennedy, No. 19-12236 (11th Cir. July 10, 2020).unpublishedWhere, as here, the factual record has not been developed, “[t]he preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion.” United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2…
- Simmons v. United States, No. 8:18-cv-00583 (M.D. Fla. June 4, 2020).And as to Cox’ failure to raise Crawford’s ineffective assistance on appeal, “[t]he preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion ‘even if the record contains some indication…
- United States v. Robert Ira Anderson, No. 18-14177 (11th Cir. May 22, 2020).unpublishedUnited States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010).
- Gray v. United States, No. 8:19-cv-00544 (M.D. Fla. May 7, 2020).Moreover, as the United States observes, “[t]he preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion ‘even if the record contains some indication of deficiencies in counsel’s perfor…
- United States v. Kenneth Eugene Thomas, Jr., No. 19-11175 (11th Cir. Mar. 30, 2020).unpublished“The preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion.” United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010).
- United States v. Altonne Marquaviyes Finley, No. 19-10717 (11th Cir. Mar. 5, 2020).unpublished“We will not generally consider claims of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a factual record.” Id. 3 Case: 19-10717 Date Filed: 03/05/2020 Page: 4 of…
- United States v. Luis Alberto Lara Salomon, No. 18-13347 (11th Cir. Mar. 4, 2020).unpublishedGenerally, we will not consider ineffective-assistance-of-counsel claims on direct appeal “where the district court did not entertain the claim nor develop a factual record.” United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010).
- United States v. Reginald Eugene Grimes, Sr., No. 19-13362 (11th Cir. Feb. 21, 2020).unpublished“The preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion ‘even if the record contains some indication of deficiencies in counsel’s performance.’” United States v. Patterson, 595 F.…
- United States v. Ricky Nelson Bynum, No. 18-14600 (11th Cir. Aug. 19, 2019).unpublished We “will not generally consider claims of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a factual record.” United States v. Patterson, 595 F.3d 1324, 1328 (11th C…
- United States v. Joshua Otis Gordon Carter, No. 18-11367 (11th Cir. July 26, 2019).unpublishedUnited States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010).
- United States v. Donovan G. Davis, Jr., No. 17-12057 (11th Cir. Mar. 27, 2019).unpublished(noting that this Court does not generally consider claims of ineffective assistance of counsel on direct appeal that were not raised in the district court unless a factual record for such a claim was sufficiently develo…)
- United States v. Johnnie Duane Johns, 390 F. App'x 963 (11th Cir. 2010).unpublished
- United States v. Carlos J. Lopez, 406 F. App'x 455 (11th Cir. 2010).unpublished
- United States v. Webb, 655 F.3d 1238 (11th Cir. 2011).published
- United States v. Dexter Griffin, 481 F. App'x 455 (11th Cir. 2012).unpublished
- United States v. Gustavo Bru, 482 F. App'x 509 (11th Cir. 2012).unpublished
- United States v. Asieba Imadjam Thomas, 488 F. App'x 440 (11th Cir. 2012).unpublished
- United States v. Pedro Perez-Hernandez, 490 F. App'x 275 (11th Cir. 2012).unpublished
- United States v. Dexter Griffin, 515 F. App'x 820 (11th Cir. 2013).unpublished
- United States v. Jeffery Nolan Bennett, 518 F. App'x 660 (11th Cir. 2013).unpublished
- United States v. Patrick Leaks, 518 F. App'x 860 (11th Cir. 2013).unpublished
- United States v. Tavares Antwan Oliver, 522 F. App'x 525 (11th Cir. 2013).unpublished
- United States v. Peter Thornton, 522 F. App'x 854 (11th Cir. 2013).unpublished
- United States v. Manuel A. Beyra, 532 F. App'x 848 (11th Cir. 2013).unpublished
- United States v. Ivan Curbelo, 726 F.3d 1260 (11th Cir. 2013).published
- United States v. Gerald Bernard Datts, 537 F. App'x 901 (11th Cir. 2013).unpublished
- United States v. Kabil Anton Djenasevic, 545 F. App'x 946 (11th Cir. 2013).unpublished
- United States v. Jeremiah Jenkins, 546 F. App'x 915 (11th Cir. 2013).unpublished
- United States v. Dwayne Solomon, 560 F. App'x 964 (11th Cir. 2014).unpublished
- United States v. Paul Gregory Wiles, 563 F. App'x 692 (11th Cir. 2014).unpublished
- United States v. Michael Asher, 564 F. App'x 963 (11th Cir. 2014).unpublished
- United States v. Bryant O'Nell Niles, 565 F. App'x 828 (11th Cir. 2014).unpublished
- United States v. Armando Valencia, 556 F. App'x 916 (11th Cir. 2014).unpublished
- Fabio Ochoa v. United States, 569 F. App'x 843 (11th Cir. 2014).unpublished
- United States v. Willie Bentley, 571 F. App'x 760 (11th Cir. 2014).unpublished
- United States v. Antonio Tremain Lockett, 575 F. App'x 867 (11th Cir. 2014).unpublished
- United States v. Mark James Williams, 592 F. App'x 828 (11th Cir. 2014).unpublished
- United States v. Dwight Gooding, 594 F. App'x 123 (4th Cir. 2014).unpublished
- United States v. Anthony Roberts, 778 F.3d 942 (11th Cir. 2015).published
- United States v. Jimmie Harrell, Jr., 603 F. App'x 877 (11th Cir. 2015).unpublished
- United States v. Christopher Shawn Linton, 601 F. App'x 914 (11th Cir. 2015).unpublished
- United States v. Johnny Curtis Bedgood, 569 F. App'x 836 (11th Cir. 2014).unpublished
- United States v. Benito Lahera, 567 F. App'x 856 (11th Cir. 2014).unpublished
- United States v. Damien Laron McDaniel, No. 14-12600 (11th Cir. Mar. 11, 2014).unpublished
- United States v. Jorge Rosell, 431 F. App'x 807 (11th Cir. 2011).unpublished
- United States v. Jose Alfredo Cruz, 428 F. App'x 912 (11th Cir. 2011).unpublished
- United States v. Kamarian D. Millender, 635 F. App'x 611 (11th Cir. 2015).unpublished
- United States v. Gerald J. Robinson, 648 F. App'x 823 (11th Cir. 2016).unpublished
- United States v. Jerry Chester, 650 F. App'x 725 (11th Cir. 2016).unpublished
- United States v. Troy Anthony Coleman, 653 F. App'x 712 (11th Cir. 2016).unpublished
- United States v. Milton Jeffrey Burrell, 662 F. App'x 889 (11th Cir. 2016).unpublished
- United States v. Adres Campo, 840 F.3d 1249 (11th Cir. 2016).published
- United States v. Arron Bernard Clark, 671 F. App'x 1038 (11th Cir. 2016).unpublished
- United States v. Stephen Mayer, 679 F. App'x 895 (11th Cir. 2017).unpublished
- United States v. Jamie Eldred Black, 685 F. App'x 745 (11th Cir. 2017).unpublished
- United States v. Julio Cesar Cruz, 688 F. App'x 626 (11th Cir. 2017).unpublished
- United States v. Bryan Ross Spears, 692 F. App'x 564 (11th Cir. 2017).unpublished
- United States v. Ricky Germaine Atkins, 702 F. App'x 890 (11th Cir. 2017).unpublished
- United States v. Manila Chicago, 711 F. App'x 512 (11th Cir. 2017).unpublished
- United States v. Micheal Joseph Armano, No. 17-12132 (11th Cir. Aug. 30, 2018).unpublished
- United States v. Nathan A. Madsen, No. 17-12602 (11th Cir. Sept. 13, 2018).unpublished
- Lawrence S. Duran v. United States, No. 16-11882 (11th Cir. Nov. 2, 2018).unpublished
- United States v. Robert Lawrence, No. 17-15759 (11th Cir. Dec. 21, 2018).unpublished
- United States v. Kenneth Darnell Williams, No. 20-10686 (11th Cir. Feb. 5, 2021).unpublished
- United States v. Luis Enrique Torres Gomez, No. 21-10589 (11th Cir. Jan. 4, 2022).unpublished
- United States v. Daniel Solano, No. 21-14191 (11th Cir. Oct. 21, 2022).unpublished
- United States v. Peter Hall, No. 21-11165 (11th Cir. Jan. 19, 2023).unpublished
- United States v. Quontavius Hill, No. 23-13881 (11th Cir. Dec. 27, 2024).unpublished
- United States v. Lonnise Andrews, No. 24-10334 (11th Cir. July 7, 2025).unpublished
At page 1326 Reviewing plain error for procedural and sentencing issues27 citing cases“(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
- United States v. Darrin Joseph Hoffman, No. 12-11529, 2013 WL 764975 (11th Cir. Feb. 26, 2013).published(Where the defendant has failed to raise [an] issue below, we review for plain error.)
- United States v. Daniel King, No. 23-10774 (11th Cir. July 15, 2026).unpublishedTo prevail under plain-error review, a challenging party must show “(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.…
- United States v. Brandon Anderson, No. 24-10361 (11th Cir. Mar. 31, 2025).unpublished“Plain error requires the defendant to show: (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Patt…
- United States v. Azari Gonzalez, No. 23-11749 (11th Cir. Feb. 21, 2025).unpublished“Plain error requires the defendant to show: (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Patt…
- United States v. William Richard Carter, Jr., No. 22-12744 (11th Cir. Jan. 2, 2024).unpublishedUnited States v. Patterson, 595 F.3d 1324, 1326 (11th Cir. 2010).
- United States v. Alphonso Brontay Benford, 479 F. App'x 186 (11th Cir. 2011).unpublished
- United States v. Henry Collado, 439 F. App'x 845 (11th Cir. 2011).unpublished
- United States v. Robert Hall, 456 F. App'x 873 (11th Cir. 2012).unpublished
- United States v. Yoba Falcon, 462 F. App'x 866 (11th Cir. 2012).unpublished
- United States v. Drew Schissler, 463 F. App'x 830 (11th Cir. 2012).unpublished
Show 16 more citing cases
- United States v. Michael Canada, 465 F. App'x 890 (11th Cir. 2012).unpublished
- United States v. Lynda Wilson, 470 F. App'x 746 (11th Cir. 2012).unpublished
- United States v. David Lopez Mendez, 490 F. App'x 287 (11th Cir. 2012).unpublished
- United States v. Cedric Shivers, 511 F. App'x 832 (11th Cir. 2013).unpublished
- United States v. Waldo Gonzalez, 524 F. App'x 557 (11th Cir. 2013).unpublished
- United States v. Jorge Luis Reyes, No. 12-15128 (11th Cir. July 31, 2013).unpublished
- United States v. Pikerson Mentor, 570 F. App'x 894 (11th Cir. 2014).unpublished
- United States v. Nannette M. Cobb, 571 F. App'x 851 (11th Cir. 2014).unpublished
- United States v. Sarah Jayne Adleta, 573 F. App'x 891 (11th Cir. 2014).unpublished
- United States v. Julian Gil, 581 F. App'x 766 (11th Cir. 2014).unpublished
- USA v.Gary Wayne Peters, 597 F. App'x 1033 (11th Cir. 2015).unpublished
- United States v. Sara Mari Hoehn, 572 F. App'x 835 (11th Cir. 2014).unpublished
- United States v. Ane Plate, 839 F.3d 950 (11th Cir. 2016).published
- United States v. Antron Latroy Langston, 662 F. App'x 787 (11th Cir. 2016).unpublished
- United States v. Mitchell Lichtman, 683 F. App'x 873 (11th Cir. 2017).unpublished
- United States v. Herman Smith, 696 F. App'x 427 (11th Cir. 2017).unpublished
At page 1327 Determining intended loss versus actual loss in fraud sentencing17 citing cases“a criminal pays the price for the ambition of his acts, not their thoroughness”
- United States v. Justin G. Pennington, No. 18-10210 (11th Cir. Feb. 20, 2019).unpublished(the proper punishment for a defendant’s fraud . . . [is] the reasonable mathematical limit of his scheme)
- United States v. Roberto Murillo, No. 20-13340 (11th Cir. Dec. 30, 2021).unpublished“when a sentencing court is determining the proper punishment for a defendant's fraud, the court uses the reasonable mathematical limit of his scheme, rather than his concrete result.”
- Sanders v. United States, No. 4:19-cv-00182 (S.D. Ga. Sept. 13, 2021).The Court of Appeals for the Eleventh Circuit determined that “a defendant ‘pays the price for the ambition of his acts, not their thoroughness.’” Id. at 4 (quoting United States v. Patterson, 595 F.3d 1324, 1327 (11th Cir. 2010)).
- United States v. Martinez, 584 F.3d 1022 (11th Cir. 2010).published
- United States v. Jimmy A. Soto, 399 F. App'x 498 (11th Cir. 2010).unpublished
- United States v. Onessimus M. Govereh, 423 F. App'x 861 (11th Cir. 2011).unpublished
- United States v. Robert B. Surles, 424 F. App'x 834 (11th Cir. 2011).unpublished
- United States v. Frazier, 651 F.3d 899 (8th Cir. 2011).published
- United States v. Yvonne Stouffrant, 517 F. App'x 803 (11th Cir. 2013).unpublished
- United States v. Alfred Robert Massam, 751 F.3d 1229 (11th Cir. 2014).published
Show 6 more citing cases
- United States v. Michael J. Muzio, 757 F.3d 1243 (11th Cir. 2014).published
- United States v. Kynard, 427 F. App'x 755 (11th Cir. 2011).unpublished
- United States v. Vincent Bazemore, 839 F.3d 379 (5th Cir. 2016).published
- United States v. Gladys Fuertes, No. 15-12928 (11th Cir. Jan. 23, 2018).unpublished
- United States v. Maynard Sanders, No. 18-10884 (11th Cir. Nov. 27, 2018).unpublished
- United States v. Martinez, 606 F.3d 1303 (11th Cir. 2010).published
Other citing cases
- Oglesby v. United State of Am., No. 5:24-cv-00323 (M.D. Fla. July 14, 2025).
v.
Leon Spencer PATTERSON, A.K.A. “Lee,” A.K.A. “Major,” Defendant-Appellant
This appeal presents the question of whether it is error for a court to sentence a defendant under a Guidelines calculation of intended loss that is more than double the amount of restitution ordered in the same case. We conclude that the facts of this appeal do not present the plain error that appellant asserts. We also reject appellant’s claim of ineffective assistance of counsel because the record is not sufficiently developed and collateral attack is the preferable avenue for such challenges. Therefore, we affirm the judgment of the district court.
Leon Spencer Patterson was sentenced to 80 months after pleading guilty to possessing a counterfeit state security in violation of 18 U.S.C. § 513(a). According to the presentence investigation report (PSI), Patterson participated in a sophisticated conspiracy to provide counterfeit vehicle titles and false Vehicle Identification Numbers (VINs), also known as cloned VINs, for stolen vehicles that were subsequently sold, or restolen in staged thefts to collect insurance proceeds. The PSI determined that the intended loss, based on the fair market value of the stolen vehicles, was $1,199,106.92. The report calculated a restitution amount of $425,770.99, the sum of the loss each identified victim had suffered. At sentencing, Patterson’s attorney did not object to the PSI, which the district court adopted, or to the sentence, which included a final restitution order of $410,105.45. “It is the law of this circuit that a failure to object to allegations of fact in a PSI admits those facts for sentencing purposes.” United States v. Wade, 458 F.3d 1273,1277 (11th Cir.2006).
I.
Patterson first contends that the district court committed plain error in sentencing him, and moreover, that the district court committed procedural error in calculating his sentence. Where the defendant has failed to raise the issue below, we review for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). Plain error requires the defendant to show: (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002). For an error to affect substantial rights, it generally “must have been prejudicial: It must have affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). Patterson also cites Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), as proscribing the allegedly improper calculation of his sentence by the district court.
While the plain error standard limits our review, this case presents a useful opportunity to review our circuit’s law regarding intended loss, actual loss, and restitution. Discussion of the Sentencing Guidelines is the natural starting point. The amount of financial loss can increase the offense level the Guidelines imposes for a wide variety of fraudulent conduct. If the amount of loss in a case involving counterfeit instruments exceeded $1,000,000, but was less than or equal to $2,500,000, the offense level increases by 16. U.S.S.G. § 2Bl.l(b)(l)(I). But if the loss amount was greater than $400,000, and less than or equal to $1,000,000, the offense level increases by only 14. Id. § 2Bl.l(b)(l)(H). Patterson finds himself caught on this divide. In measuring loss, we generally apply the fair market value of the property taken. United States v. Machado, 333 F.3d 1225, 1227 (11th Cir.2003); U.S.S.G. § 2B1.1 cmt. n.3(C)(i).
[*1327] The Guidelines commentary goes on to distinguish intended loss from actual loss. Intended loss is the “pecuniary harm that was intended to result from the offense,” and actual loss is the “reasonably foreseeable pecuniary harm that resulted from the offense.” U.S.S.G. § 2B1.1 cmt. n.3(A)(i)(ii). The “General Rule” is that “loss is the greater of actual loss or intended loss.” Id. § 2B1.1 cmt. n.3(A) (emphasis added); United States v. Willis, 560 F.3d 1246, 1250 (11th Cir.2009) (per curiam) (basing fraud loss on the maximum disbursement limits of FEMA hurricane-relief grants, rather than on funds actually stolen). See also United States v. Nosrati-Shamloo, 255 F.3d 1290, 1291-92 (11th Cir.2001) (per curiam) (basing loss on credit limits of fraudulently obtained credit cards, rather than on smaller figure of actual fraudulent charges); United States v. Lane, 323 F.3d 568, 590 (7th Cir.2003) (“The determination of intended loss under the Sentencing Guidelines therefore focuses on the conduct of the defendant and the objective financial risk to victims caused by that conduct.”).
“Although a district court must not speculate concerning the existence of a fact which would permit a more severe sentence under the guidelines, its reasonable estimate of the intended loss will be upheld on appeal.” United States v. Grant, 431 F.3d 760, 762 (11th Cir.2005) (quotation omitted); see also U.S.S.G. § 2B1.1 cmt. n.3(C). Grant involved a scheme to counterfeit checks by cribbing valid checking account information from stolen photocopies of legitimate checks. We found no error in the district court’s basing its calculation of loss on the face value of the photocopied checks, rather than the sum of the funds the defendant actually took. 431 F.3d at 761 & n. 2, 765. Put another way, when a sentencing court is determining the proper punishment for a defendant’s fraud, the court uses the reasonable mathematical limit of his scheme, rather than his concrete result. A criminal pays the price for the ambition of his acts, not their thoroughness.
To be sure, as we noted in Grant, speculation has no place in these calculations. We remind district courts of their obligation to make factual findings sufficient to support the government’s claim of loss based on a preponderance of the evidence, when the defendant challenges that claim. United States v. Gupta, 572 F.3d 878, 888-89 (11th Cir.2009); United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir.1997). [1]
Restitution, on the other hand, “must be based on the amount of loss actually caused by the defendant’s conduct.” United States v. Liss, 265 F.3d 1220, 1231 (11th Cir.2001). Restitution requires the defendant to return property to the owner or else pay him the value of the property. 18 U.S.C. § 3663A(b)(l). While the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A et seq., requires a judge to order restitution to compensate the full amount of each victim’s losses, United States v. Jones, 289 F.3d 1260, 1265 (11th Cir.2002) (per curiam), it does not require restitution to match the loss figure used for sentencing. Indeed, the amounts of loss and restitution can and do differ. See, e.g., United States v. Woodard, 459 F.3d 1078, 1087-88 (11th Cir.2006) (per curiam). In a cloned-VIN case that presented substantially the same issue as the instant appeal, the Sixth Circuit found no error in the sentencing court’s use of the intended[*1328] loss when calculating the base offense level, even though that figure was more than double the restitution amount. United States v. Newsom, 281 Fed.Appx. 464, 466-67 (6th Cir.2008) (unpublished opinion).
Patterson argues that it was plain error for the district court to find that the total loss exceeded $1,000,000. He asserts that the loss should equal the restitution. He asserts that the district court likely would have sentenced him to a shorter term but for this error, and, therefore, the error affected his substantial rights. He appeals to our discretion to recognize the error in the interest of fairness and maintaining the integrity of the proceedings.
We reject these arguments. The district court did not err, much less plainly err, in its application of the Guidelines when sentencing Patterson for the intended loss. Moreover, the district court appears to have calculated the restitution figure with care and in accordance with precedent. Patterson has cited no authority that requires a simple symmetry between loss and restitution, and our cases offer substantial explanations why these figures can diverge. [2]
Additionally, it is not clear that a change in the base offense level would have made a difference at Patterson’s sentencing. The district court had already departed downward 40 months from the 120-month statutory maximum, in part because of Patterson’s “very significant” cooperation, in the words of the prosecutor. It is not at all obvious from the transcript of the sentencing hearing that the court would have departed farther, had the suggested Guidelines range dropped from 135-168 months to 108-135 months as a result of a lower loss figure. For these same reasons, we find that Patterson has failed to identify a procedural error in the calculation of his sentence.
II.
Our conclusion that Patterson’s sentence was correctly calculated necessarily diminishes Patterson’s complaint that his attorney was ineffective for failing to object to it. Patterson argues that his trial counsel’s performance was deficient because counsel did not (1) adequately review the PSI with him; (2) discuss any potential objections to the PSI; or (3) file any objections to the PSI. Additionally, counsel failed to file a memorandum setting forth any grounds for a downward departure based on the 18 U.S.C. § 3553(a) factors and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), present any evidence on his behalf at sentencing, or call available character witnesses. He claims that his counsel’s actions resulted in a longer sentence.
“We will not generally consider claims of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (citation omitted). We will however consider those claims on direct appeal “if the record is sufficiently developed.” Id. The preferred means for deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion “even if the record contains some indication of deficiencies in counsel’s performance.” Mas saro v. United States, 538 U.S. 500, 504,[*1329] 128 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003). For these reasons, we decline to consider Patterson’s ineffective-assistance-of-counsel claim on direct appeal because the record for it is not now sufficiently developed.
In sum, we affirm the judgment of the district court.
AFFIRMED.
. Even if Patterson’s failure to object to the PSI had not admitted the government's facts for his sentencing, we would find no Booker error here, because the sentencing court referred to the Guidelines as advisory. United States v. Woodard, 459 F.3d 1078, 1088 n. 9 (11th Cir.2006) (per curiam).
. This conclusion begs the question of why the numbers for loss and restitution differ in this case. The record offers some clues. Some owners of the stolen cars could not be located. Some of the stolen cars were not recovered. Sometimes valuable vehicles were returned intact to their owners, who incurred no loss. Also, one of Patterson’s codefendants had already paid for one of the cars.