                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 16-7356


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL BRIAN DUNKEL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:13-cr-00220-GBL-1; 1:15-cv-00397-GBL)


Submitted:   March 27, 2017                 Decided:    April 19, 2017


Before WYNN and    DIAZ,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Richard Klugh, LAW OFFICE OF RICHARD C. KLUGH, Miami, Florida,
for Appellant. Ryan Scott Faulconer, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        Michael    Brian      Dunkel          appeals the district court’s order

denying relief on his 28 U.S.C. § 2255 (2012) motion.                                      The order

is not appealable unless a circuit justice or judge issues a

certificate of             appealability.                  28    U.S.C.            § 2253(c)(1)(B)

(2012). A certificate of appealability will not issue absent “a

substantial        showing         of        the        denial        of     a     constitutional

right.”      28     U.S.C.        § 2253(c)(2)             (2012).          When     the    district

court     denies    relief         on        the     merits,       a        prisoner       satisfies

this     standard     by demonstrating that reasonable jurists would

find     that      the        district              court’s           assessment           of      the

constitutional         claims           is    debatable          or         wrong.         Slack    v.

McDaniel,       529        U.S.     473,            484    (2000);          see     Miller-El       v.

Cockrell, 537 U.S. 322, 336-38 (2003).                             When the district court

denies     relief        on    procedural               grounds,           the     prisoner        must

demonstrate       both      that      the      dispositive            procedural       ruling       is

debatable,      and    that       the        motion       states       a    debatable claim of

the denial of a constitutional right.                            Slack, 529 U.S. at 484-

85.

        Dunkel seeks a certificate of appealability to challenge

his conviction following a guilty plea under 18 U.S.C. § 1031

(2012),     and       to      argue          that       his     trial        counsel        provided

constitutionally           deficient          assistance         by    failing        to    properly

advise him about § 1031, failing to inform him that his guilty

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plea     would     require        him    to     register      as    a   sex    offender,

stipulating to a loss figure unsupported by the evidence, and

failing    to     object     to    the    Government’s         introduction      of     two

victim-impact       witnesses.           Section       1031   prohibits       schemes    to

defraud the United States in any procurement of services or any

contract, subcontract, or other form of federal assistance.                             To

invoke    § 1031,     the    value       of     federal      assistance   must    be    $1

million or more.

       Dunkel argues that his conduct does not satisfy the $1

million jurisdictional requirement of § 1031 because it requires

a single $1 million prime contract or subcontract and his scheme

did not involve such a contract.                       Dunkel has conceded that he

procedurally defaulted on his § 1031 claim by failing to raise

it on direct review.              He may therefore raise the claim in this

postconviction       proceeding          only     if    he    can   establish     actual

innocence or cause and prejudice.                  See Bousley v. United States,

523 U.S. 614, 622 (1998).                Actual innocence requires a showing

that “it is more likely than not that no reasonable juror would

have found petitioner guilty beyond a reasonable doubt.”                          Schlup

v. Delo, 513 U.S. 298, 327 (1995).                     “The existence of cause for

a procedural default must turn on something external to the

defense, such as . . . a denial of effective assistance of

counsel.”        United States v. Mikalajunas, 186 F.3d 490, 493 (4th

Cir. 1999) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)).

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       We conclude that Dunkel cannot establish actual innocence.

Dunkel stipulated in his plea agreement that he had posed as an

employee of Company B, which received contracting preferences

from the Small Business Administration, to take advantage of

those preferences when bidding on NASA contracts.                           He further

agreed that the scheme was “all in relation to a procurement for

services    valued   at     more   than       $1,000,000,         including      but   not

limited    to   [Contract      A86B].”         By     that    admission,         Dunkel’s

conduct fell within the scope of § 1031.

       Even absent Dunkel’s stipulations, his argument that § 1031

requires    a   single    $1    million       prime    contract      or     subcontract

fails.     Section 1031 is not limited to prime contracts; by its

terms, it applies to the procurement of services and “other

form[s] of Federal assistance” worth $1 million or more.                                18

U.S.C.     § 1031.       Moreover,      Dunkel        has    not    shown       that   the

Government did not rely on a single contract worth $1 million.

Even if the Government aggregated several contracts, however, we

have   recognized    that      § 1031    should       not    be    read    to    insulate

“pervasive fraud on a multi-million dollar defense project . . .

if it were perpetrated in multiple separate subcontracts, each

involving less than the jurisdictional amount.”                           United States

v. Brooks, 111 F.3d 365, 369 (4th Cir. 1997).                             We therefore

conclude that Dunkel has not established actual innocence.                             We

reject his request for a hearing on actual innocence because,

                                          4
contrary      to    Dunkel’s    contention,       the    circumstances         of   United

States v. Bousley do not apply here.                 See 523 U.S. at 623.

       We also conclude that Dunkel has failed to make a showing

of    cause   and     prejudice    to    overcome        his    procedural      default.

Dunkel    argues      that     cause    and      prejudice      exists      because    his

attorney provided ineffective assistance by failing to raise his

§ 1031 arguments.

       A claim of ineffective assistance of counsel requires a

defendant      to     show:       (1)    “that      counsel’s         performance      was

deficient,” and (2) “that the deficient performance prejudiced

the   defense.”        Strickland       v.    Washington,       466    U.S.     668,   687

(1984).       A defendant proves deficient performance by showing

that “counsel’s representation fell below an objective standard

of reasonableness.”            Id. at 688-89.           To prove prejudice if the

defendant entered a guilty plea, the defendant “‘must show that

there    is    a    reasonable     probability          that,   but     for    counsel’s

errors, he would not have pleaded guilty and would have insisted

on going to trial.’”           Hooper v Garraghty, 845 F.2d 471, 475 (4th

Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

       Because      Dunkel’s     arguments       about    § 1031      lack    merit,    he

cannot show that his counsel acted unreasonably.                            Accordingly,

Dunkel    cannot      overcome    the   procedural        default      of     his   § 1031

claim and both that claim and his ineffective assistance claim

based on § 1031 fail.

                                             5
      Dunkel also appeals the district court’s denial of three of

his   other    ineffective       assistance        of    counsel    claims.         First,

Dunkel argues that his counsel should have advised him that his

conviction would require him to register under the Sex Offender

Registration      and     Notification      Act    (SORNA),       42     U.S.C.    § 16913

(2012).      However, the “requirements of [SORNA] apply to all sex

offenders, including sex offenders convicted of the offense for

which registration is required prior to the enactment of that

Act.”     28 C.F.R. § 72.3.        Because SORNA retroactively applied to

Dunkel before his plea and conviction, the plea did not trigger

SORNA     registration.           Thus,     Dunkel’s       counsel        did     not        act

unreasonably      when     he    advised    Dunkel       about     the    plea     without

discussing        SORNA.          Moreover,        because         the     registration

requirement       would    have    applied        to     Dunkel    regardless           of     a

conviction, counsel’s failure to advise Dunkel about SORNA did

not prejudice Dunkel.

      Second, Dunkel argues that his counsel provided ineffective

assistance by advising him to stipulate to a loss figure under

U.S. Sentencing Guidelines Manual § 2B1.1 (2016) despite a lack

of evidence to support it.           In the plea agreement, Dunkel agreed

that he and Company B gained at least $2.9 million and that his

gain could be used as the loss figure for sentencing.                             Gain can

serve   as    a   proxy    for    loss     where       calculating       loss    would        be

difficult.           U.S.        Sentencing         Commission,           Loss      Primer

                                            6
§ 2B1.1(b)(1) (citing United States v. Vrdolyak, 593 F.3d 676,

681 (7th Cir. 2010) (reversing sentencing judge’s refusal to

consider gain as proxy for loss where a “probable” but difficult

to calculate loss existed)).              Here, calculating the loss would

have    been     difficult      because       the     parties     could     not      have

sufficiently determined the loss experienced by the company that

would have contracted with NASA absent Dunkel’s fraud.                             Thus,

the parties appropriately agreed to determine how much Dunkel

gained from his fraud rather than how much an unknown company

lost from that fraud.              The parties then determined the gain

based on Dunkel’s admission that he gained at least $2.9 million

from his scheme.          Thus, we conclude that Dunkel’s counsel did

not    provide      deficient      performance         by    advising      Dunkel      to

stipulate to the loss figure in the plea agreement.                        We further

conclude    that    the    stipulation        did    not    prejudice    Dunkel,      who

would have been subject to the same method of loss calculation

if he had been convicted without the plea agreement.

       Third, Dunkel argues that his counsel provided ineffective

assistance by failing to object when the prosecution introduced

additional      evidence      of   loss    at       sentencing     by    calling      two

witnesses      to   testify    about    the     impact      of   the    fraud   on    the

government.         According      to   Dunkel,      calling     the    witnesses     to

testify breached the plea agreement by circumscribing the agreed

to loss figure.           The prosecution, however, did not breach the

                                          7
plea agreement because it did not use the additional evidence to

advocate for a greater enhancement under USSG § 2B1.1.                     The plea

agreement also permitted the parties to make other arguments

about sentencing at the hearing.                Thus, counsel did not perform

unreasonably, and Dunkel cannot establish ineffective assistance

of counsel.

     We    have        independently   reviewed     the   record    and    conclude

that Dunkel has not made the requisite showing to appeal the

denial     of     his     § 2255   motion.          Accordingly,      we    deny   a

certificate        of     appealability       and   dismiss   the     appeal.      We

dispense        with    oral   argument       because   the   facts    and    legal

contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                           DISMISSED




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