Michael Winans, Jr. v. United States

The United States Sentencing Guidelines applicable to cases of fraud provide for a base offense level of seven, which is increased incrementally depending on the amount of “loss.” U.S.S.G. §2B1.1(b)(1) (2012). The Guidelines also provide that the “[l]oss shall be reduced by . . . the money returned . . . by the defendant . . . to the victim before the offense was detected.” U.S.S.G. §2B1.1, Comment (n. 3(A)(i)) (2012). Does a Court of Appeals err in failing to issue a certificate of appealability and/or order an evidentiary hearing on a defendant’s claims of ineffective assistance of counsel where defendant accepted a guilty plea to wire fraud based on counsel’s advice and where counsel (a) failed to investigate facts concerning the determination of the gross “loss” under §2B1.1; (b) failed to research the law and advise the defendant that certain amounts defendant repaid to investors were required to be subtracted from the gross “loss” amount and (c) failed to advise the defendant and the sentencing court that the sentencing range had been incorrectly calculated based on the gross rather than net “loss” amount.