Calkins v. United States, No. 14-1578 (8th Cir. 2015)
Annotate this CaseCalkins pled guilty to bank fraud, 18 U.S.C. 1344, and was sentenced to 66 months imprisonment and 8.6 million dollars in restitution. The Eighth Circuit affirmed Calkins' sentence. Calkins then filed an 28 U.S.C. 2255 petition alleging ineffective assistance of counsel. The Eighth Circuit affirmed denial of Calkins' petition, rejecting a clam that her trial counsel should have challenged the loss amount calculated in the sentencing report and requested an evidentiary hearing to determine whether each of the individual investors whose losses were included in the total loss amount had relied on Calkins' fraudulent financial statements. The record established that Calkins' trial counsel reviewed the government's evidence on loss before recommending that she request leniency, based on Calkins's advanced age and ability to pay restitution, under section 3553(a) rather than "risk losing a . . . reduction for acceptance of responsibility by disputing" loss amount. The strategy was effective. By contesting loss amount, Calkins could at most have secured a two point decrease in her offense level; by making the strategic choice to accept responsibility and request lenience, Calkins obtained a three point offense level decrease and a 12 month downward variance.
Court Description: Murphy, Author, with Riley, Chief Judge, and Bright, Circuit Judge] Prisoner case - Habeas. Claim that trial counsel provided ineffective assistance of counsel by failing to obtain and present evidence related to loans by individual investors, and by not challenging the loss amount to the extent it was based on losses by investors who were not shown to have relied on the fraudulent financial statements in the case rejected; counsel adopted an effective strategy of seeking leniency which resulted in a greater reduction in offense level than would have been obtained by pursuing the strategy of challenging the loss amount. Judge Bright, dissenting.
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