           Case: 16-10645   Date Filed: 06/13/2017   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10645
                         Non-Argument Calendar
                       ________________________

   D.C. Docket Nos. 6:12-cv-01870-ACC-GJK; 6:10-cr-00190-ACC-GJK-1



BLAYNE DAVIS,

                                                          Petitioner-Appellant.

                                   versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                       ________________________

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

                              (June 13, 2017)

Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      Blayne Davis, a pro se federal prisoner, appeals the district court’s denial of

his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. After a

jury convicted Davis of three counts of wire fraud in connection with a Ponzi

scheme, the trial court sentenced him to 36-month concurrent sentences, followed

by a three-year term of supervised release. This Court granted a certificate of

appealability (“COA”) on the issue of whether, at sentencing, Davis’ counsel was

ineffective for failing to object to the application of a two-level guidelines

enhancement for the number of victims under U.S.S.G. § 2B1.1(b)(2)(A). After

review, we affirm the district court’s denial of Davis’s ineffective assistance claim.

                        I. INEFFECTIVE ASSISTANCE

      To prevail on an ineffective assistance of counsel claim, a defendant must

show that: (1) his counsel’s performance was deficient, and (2) he suffered

prejudice as a result of the deficient performance. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). In determining whether counsel’s

performance was deficient, “counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id. at 690, 104 S. Ct. at 2066. Counsel’s performance is

deficient only if it falls below the wide range of competence demanded of

attorneys in criminal cases. Id. at 687-88, 104 S. Ct. at 2064-65. As to the second

prong, prejudice is a “reasonable probability that, but for counsel’s unprofessional


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errors, the result of the proceeding would have been different.” Id. at 694, 104 S.

Ct. at 2068.

      For the reasons below, the district court correctly denied Davis’s ineffective

assistance claim because Davis did not establish either deficient performance or

prejudice as to the application of the victim enhancement under U.S.S.G.

§ 2B1.1(b)(2)(A).

                                II. DAVIS’S CLAIM

      Davis’s ineffective assistance claim hinges on his counsel’s failure to object

to a 2-level enhancement based on the number of victims of Davis’s Ponzi scheme.

At the time of Davis’s sentencing, U.S.S.G. § 2B1.1(b)(2)(A) provided that a

defendant’s offense level was increased by 2-levels if the offense involved 10 or

more, but fewer than 50, victims. U.S.S.G. § 2B1.1(b)(2)(A) (2011). The

commentary to § 2B1.1(b)(2)(A) defined “victim” as “any person who sustained

any part of the actual loss.” U.S.S.G. § 2B1.1 cmt. n.1. The commentary provided

that “actual loss” was “the reasonably foreseeable pecuniary harm that resulted

from the offense.” U.S.S.G. § 2B1.1 cmt. n.3(A)(i).

      When a defendant challenges the factual basis for a sentencing enhancement,

such as the 2-level enhancement under § 2B1.1(b)(2)(A), the government has the

burden to prove the disputed fact by a preponderance of the evidence. United

States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013). “While estimates are


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permissible, ‘courts must not speculate concerning the existence of a fact which

would permit a more severe sentence under the guidelines.’” Id. (quoting United

States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997)). More importantly, a

sentencing court’s fact findings may be based on, among other things, the evidence

presented at trial. United States v. Saunders, 318 F.3d 1257, 1271 n.22 (11th Cir.

2003).

      Here, Davis has not shown that his counsel’s failure to object to the 2-level

victim enhancement constituted deficient performance. At trial, nine witnesses—

Dana Welk, James Glenn, Richie Anderson, Jaret Glenn, Chris Anderson, Brian

Beck, Ricardo Brignole, Mark Jack, and Robin Minall—testified that Davis

defrauded them personally through his Ponzi scheme. In addition, some of these

witnesses identified other victims, mostly family, friends, and coworkers, who also

lost money in Davis’s scheme.

      In all, trial testimony identified at least 18 individuals who invested money

in Davis’s fraudulent scheme, including Betty Anderson, Chris Anderson, Richie

Anderson, Brian Beck, Matthew Brice, Rick Brignole, James Glenn, Jaret Glenn,

Stuart Glenn, Mike Hindle, Todd Iverson, Jay Jack, Mark Jack, Jeremy Light,

Robin Minall, JonMichael Perkins/Mantelli, Steve Vandyke, and Dana Welk.

Most of these individuals were also listed as victims in Davis’s presentence

investigation report. While trial testimony established that some of these


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individuals recouped their money, some testified that they lost money, and some

said that Davis repaid them all or part of their investments, but only after they

hired a lawyer who threatened to sue Davis and negotiated a settlement. 1 See

United States v. Lee, 427 F.3d 881, 895 (11th Cir. 2005) (concluding that victims

who suffered a monetary loss but eventually were reimbursed are “victims” for

purposes of § 2B1.1(b)(2)’s victim enhancement). One victim, Stuart Glenn, spoke

at Davis’s sentencing and advised the sentencing court that he never recouped

$30,000 of his investment in Davis’s scheme.

       Davis complains that the jury acquitted him of the conduct charged in

Counts 1 and 2, which involved two of the individuals listed in the PSI, Rick

Brignole and James Glenn. As Davis acknowledges, however, a sentencing court

may consider acquitted conduct in applying the Sentencing Guidelines and need

find facts supporting the sentence only by a preponderance of the evidence so long

as the sentence does not exceed the statutory maximum, which in Davis’s case it

did not. See United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005). In

any event, even without these two individuals, the number of victims identified at

trial exceeds ten.



       1
         To the extent Davis attempts to challenge the sentencing court’s determination of the
“actual loss” amount or its restitution order, those issues are outside the scope of the COA. See
Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (explaining that our review is
limited to those issues specified in the COA).
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       Given the trial testimony establishing over 10 victims of Davis’s fraudulent

investment scheme, it was reasonable for Davis’s counsel to decide not to object to

the victim enhancement. Moreover, any objection to the 2-level victim

enhancement would have been meritless given that the government could have met

its burden of proof merely by pointing to the trial testimony. Failing to make a

meritless objection does not constitute deficient performance. Chandler v. Moore,

240 F.3d 907, 917 (11th Cir. 2001).

       For the same reason, Davis also has not shown that his counsel’s alleged

error prejudiced him. Had Davis’s counsel objected to the 2-level enhancement,

the sentencing court would have been able to rely upon the trial testimony of the

victim witnesses, discussed above, to find that the 2-level enhancement applied.

Further, the government would have had the opportunity to present more evidence

of all of Davis’s victims, which clearly exceeded ten in number. Thus, Davis has

not shown a reasonable probability of a different outcome at his sentencing.2



       2
         The government’s motion to dismiss Davis’s appeal as moot is denied. Although Davis
completed his 36-month prison term while his § 2255 motion was pending in the district court,
he remains incarcerated under a different federal sentence in a separate criminal case and has not
yet served his three-year term of supervised release in this case. Thus, Davis’s total sentence has
not expired, and his appeal of the district court’s denial of his § 2255 motion to set aside that
total sentence is not moot. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 983 (1998)
(stating that, once a defendant’s sentence expired, “some concrete and continuing injury other
than the now-ended incarceration or parole—some ‘collateral consequence’ of the conviction—
must exist if the suit is to be maintained”); Dawson v. Scott, 50 F.3d 884, 886 n.2 (11th Cir.
1995) (rejecting mootness challenge to a § 2241 petition attacking the length of the petitioner’s
prison term because the petitioner was “still serving his term of supervised release, which [was]
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       AFFIRMED.




part of his sentence and involves some restrictions on his liberty,” and success on the petition
could alter the length of his supervised release term).
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