           Case: 15-15203   Date Filed: 05/31/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-15203
                        Non-Argument Calendar
                      ________________________

   D.C. Docket Nos. 2:13-cv-00377-WHA-CSC; 2:11-cr-00048-MEF-CSC-1



LORETTA FERGERSON,

                                                          Petitioner-Appellant,

                                    versus


UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Alabama
                     ________________________

                             (May 31, 2017)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Loretta Fergerson, proceeding pro se, appeals the district court’s denial of

her 28 U.S.C. § 2255 motion to vacate her sentence. On appeal, Fergerson argues

that her counsel was ineffective for failing to object to the use of the 2011

Sentencing Guidelines Manual on ex post facto grounds and to the imposition of a

four-level number-of-victims enhancement under U.S.S.G. § 2B1.1(b)(2)(B). 1

Specifically, she argues that the 2011 manual expanded the definition of victims to

include not only those who suffered a loss but also those whose means of

identification were used unlawfully. She argues that without the expanded

definition, the government could not have proven there were 50 or more victims

from her offenses, which involved the submission of fraudulent tax returns. After

careful consideration of the record and the parties’ briefs, we affirm.

       At Fergerson’s sentencing hearing, the government presented evidence that

Fast Tax Cash prepared 1,566 tax returns, and Fergerson admitted in her plea

agreement that a majority of those returns were fraudulent. The government also

presented evidence of 135 client folders containing false ID documents for which

118 refunds were paid.

       In a “§ 2255 proceeding, we review legal conclusions de novo and factual

findings for clear error. Ineffective assistance of counsel claims are mixed


1
 When we refer to the enhancement under U.S.S.G. § 2B1.1(b)(2)(B), we are referring to the
2011 Guidelines Manual, under which Fergerson was sentenced. We note that the guidelines
have since decreased the number of victims for a four-level enhancement to five victims.
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questions of law and fact that we review de novo.” Osley v. United States, 751

F.3d 1214, 1222 (11th Cir. 2014) (internal citation omitted).

      The Sixth Amendment guarantees a criminal defendant the right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2052, 2063 (1984). The benchmark for judging a claim of ineffective assistance of

counsel is whether counsel’s performance “so undermined the proper functioning

of the adversarial process that the trial cannot be relied on as having produced a

just result.” Id., 104 S. Ct. at 2064. To make such a showing, a prisoner must

prove two things: (1) “counsel’s performance was deficient;” and (2) “the deficient

performance prejudiced the defense.” See id. at 687, 104 S. Ct. at 2064.

Performance is deficient when “it f[alls] below an objective standard of

reasonableness and [i]s outside the wide range of professionally competent

assistance.” See Johnson v. Sec’y, DOC, 643 F.3d 907, 928 (11th Cir. 2011)

(internal quotation marks omitted). Under the prejudice prong, the defendant must

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

errors, the result of the proceeding would have been different.” Strickland, 466

U.S. at 694, 104 S. Ct. at 2068.

      The Ex Post Facto Clause prohibits the government from enacting any laws

that retroactively increase the punishment for an offense beyond what was

prescribed when the offense was committed. See Collins v. Youngblood, 497 U.S.


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37, 43, 110 S. Ct. 2715, 2719 (1990). Generally, sentencing courts “use the

Guidelines Manual [that is] in effect on the date that the defendant is sentenced.”

U.S.S.G. § 1B1.11(a). To avoid ex post facto concerns, however, the district court

must use the manual that was in effect at the time of the offense if using the

manual that is in effect at the time of sentencing would result in a higher guidelines

range. See Peugh v. United States, 569 U.S. ___, ___, 133 S. Ct. 2072, 2084–85

(2013).

      Under the Guidelines, a defendant who was convicted of an offense

involving fraud receives a four-level enhancement if the offense involved 50 or

more victims. See U.S.S.G. § 2B1.1(b)(2)(B). In both the 2008 and 2011

Guidelines Manuals, a “victim” is defined as “(A) any person who sustained any

part of the actual loss determined under subsection (b)(1); or (B) any individual

who sustained bodily injury as a result of the offense.” Id. § 2B1.1, comment.

(n.1) (2008 & 2011).

      Amendment 726, which became effective on November 1, 2009, expanded

the definition of “victim” by adding the following application note:

             (E) Cases Involving Means of Identification.—For
             purposes of [§ 2B1.1(b)(2)], in a case involving means of
             identification “victim” means (i) any victim as defined in
             Application Note 1; or (ii) any individual whose means
             of identification was used unlawfully or without
             authority.



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U.S.S.G. App. C, Amend. 726; see also U.S.S.G. § 2B1.1, comment. (n.4(E))

(2011).

      When a defendant disputes a fact underlying his sentence, the government

must prove that “disputed fact by a preponderance of the evidence.” See United

States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (per curiam). In determining

the number of victims, the district court can make reasonable inferences “based on

common sense and ordinary human experience.” See id. at 885–86.


      The district court did not err in denying Fergerson’s § 2255 motion. Even

assuming that Fergerson’s counsel performed deficiently, Fergerson has not

demonstrated that she was prejudiced by her counsel’s failure to object to the

§ 2B1.1(b)(2)(B) enhancement or the use of the 2011 Guidelines Manual because

she has not shown that the result of the proceeding would have been different had

those objections been raised. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

If Fergerson’s counsel had objected, the government would have been required to

prove by a preponderance of the evidence that at least 50 victims suffered financial

loss from Fergerson’s offense conduct. See Philidor, 717 F.3d at 885. It is

reasonable to infer that the government could prove more than fifty victims

because of the 135 client folders containing false ID documents for which 118

refunds were paid. Therefore, Fergerson has not met her burden to show that had



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her counsel objected, the result of the proceeding would have been different. See

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

      Fergerson has not established that she was prejudiced by her counsel’s

allegedly deficient performance and her claim of ineffective assistance of counsel

fails. See id.

      AFFIRMED.




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