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                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-14323
                           Non-Argument Calendar
                         ________________________

   D.C. Docket Nos. 2:12-cv-00580-MHT-WC; 2:11-cr-00006-MHT-WC-1



JANIKA FERNAE BATES,

                                                              Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                         ________________________

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

                                 (May 19, 2016)

Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:

     Janika Bates, a federal prisoner, appeals the denial of her motion to vacate
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her sentence. See 28 U.S.C. § 2255. In her motion, Bates argued that her trial

counsel was ineffective for failing to object when her sentence was miscalculated

in violation of the Ex Post Facto Clause. Use by the district court of the guideline

governing theft offenses that was in effect at the time of Bates’s sentencing, see

United States Sentencing Guideline § 2B1.1 cmt. n.4(E) (Nov. 2011), resulted in

more persons being counted as victims of Bates’s offenses, which resulted in a

higher sentencing range than she would have faced under the guideline in effect

when she committed her offenses, see id. § 2B1.1 cmt. n.1 (Nov. 2007). The

government concedes that trial counsel was deficient in failing to object when the

miscalculation of Bates’s sentence plainly violated the Ex Post Facto Clause, but

argues that counsel’s error did not prejudice Bates because “the record suggests

that it is unlikely the district court would have imposed a lower sentence.” Because

the district court imposed a sentence at the low end of Bates’s advisory guideline

range and there is a reasonable probability that her sentence would have been

different if calculated correctly, we vacate the order denying Bates’s motion to

vacate her sentence and remand for resentencing.

                                I. BACKGROUND

      We divide the background into two parts. First, we discuss Bates’s

conviction and sentence. Second, we discuss Bates’s motion to vacate.




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                        A. Bates’s Conviction and Sentence

      In 2011, a jury convicted Bates of one count of conspiring to defraud the

United States, 18 U.S.C. § 286, eight counts of identity theft, id. § 1028(a)(7),

(b)(1)(D), two counts of attempting or conspiring to commit wire fraud, id.

§§ 1343, 1349, and two counts of aggravated identity theft, id. § 1028A(a)(1).

Bates’s offenses occurred between June 2005 and April 2007, but her presentence

investigation report applied the 2011 version of the Sentencing Guidelines. The

presentence report identified as victims the 54 individuals whose personal

identification information Bates stole, the Internal Revenue Service, and HSBC

Bank. The report stated that Bates used 46 of the individuals’ personal information

to claim a tax refund. The report grouped Bates’s convictions for fraud, identity

theft, and wire fraud to assign her a base offense level of seven, U.S.S.G.

§ 2B1.1(a)(1), and added four levels because her offense involved more than 50

victims, id. § 2B1.1(b)(2)(B). With a total offense level of 27 and a criminal

history of I, the report provided a sentencing range of 70 to 87 months for Bates’s

grouped offenses, and two 24-month sentences for her aggravated identity theft

offenses.

      Bates objected to the four-level sentence enhancement. Bates argued that the

report overstated the number of victims because the jury had acquitted her of some

identity theft offenses charged in her indictment. Bates’s argument led the district


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court to question whether the government had proved that every individual whose

personal information Bates had stolen had suffered a pecuniary loss, as required to

constitute a victim under the 2007 commentary to section 2B1.1. See U.S.S.G.

§ 2B1.1 cmt. n.1 (Nov. 2007). The government responded that the proper inquiry

was whether, under the expanded definition of victims of offenses involving means

of identification that was included in the 2011 commentary to section 2B1.1, Bates

used the individuals’ “means of identification . . . unlawfully or without authority,”

id. § 2B1.1 cmt. n.4(E) (Nov. 2011). When asked by the district court how to

sidestep the newer definition of victim, Bates answered that the jury’s verdicts

established the number of victims. The district court overruled Bates’s objection to

the enhancement.

      Bates requested a downward departure or a downward variance, both of

which the district court denied. While considering Bates’s request for a variance,

the district court asked Bates’s probation officer to recommend an appropriate

sentence. The probation officer suggested that Bates receive a sentence of 70

months for her grouped offenses to run consecutively to a 24-month sentence for

her aggravated identity theft offenses and that Bates receive a sentence at the low

end of her guideline range, but not a downward variance. The district court was

troubled by Bates’s apparent lack of remorse and subordination of a witness’s

perjury and thought that Bates had persuaded the witness to lie for her and had


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mistreated other people. The district court judge said, “I can see giving [Bates] a

sentence at the bottom of the guidelines, but I was thinking of giving her a

variance.” The district court judge also pondered why Bates resorted to criminal

activities after having excelled at school.

      The district court considered Bates’s advisory guideline range and the

statutory sentencing factors. 18 U.S.C. § 3553. The district court sentenced Bates

to 70 months for her conspiracy, identity theft, and wire fraud offenses, and to a

consecutive sentence of 24 months for her aggravated identity theft offenses. Bates

did not appeal.

                             B. Bates’s Motion to Vacate

      Bates moved to vacate her sentence on the ground that her trial counsel was

ineffective for failing to object to the four-level enhancement of her sentence.

Bates argued that none of the 54 individuals whose personal information she had

stolen had suffered a pecuniary loss to qualify as a victim under the definition in

effect at the time of her offense. See U.S.S.G. § 2B1.1 cmt. n.1 (Nov. 2007). Trial

counsel submitted an affidavit recounting that he had argued Bates had only two

victims, the Service and HSBC Bank.

      Later, Bates filed an amended motion to vacate and argued that trial counsel

was ineffective for failing to object to the four-level enhancement on the ground its

application violated the Ex Post Facto Clause. Bates argued that the district court


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plainly erred by applying the four-level enhancement in reliance on the definition

of victim in effect at the time of Bates’s sentencing in 2011 instead of the

definition in effect when she committed her offense in 2007. Bates argued that trial

counsel’s ineffectiveness increased her sentence by 20 to 25 months.

      The government responded that Bates’s counsel was not ineffective. Had

Bates objected, the government argued, it would have submitted evidence that her

victims suffered actual losses, either attributable to delays in receiving tax refunds,

to correcting credit reports, or to difficulties obtaining loans, which “would likely

[have made her] subject to the 4-level enhancement.” Bates was not entitled to

postconviction relief, the government argued, because applying the definition of

victim in effect in 2011 did not plainly violate the Ex Post Facto Clause and

because her trial counsel was not expected to anticipate a change in the law.

      Bates replied that she did not have more than 50 victims, as that term was

defined in the 2007 guideline. Bates argued that United States v. Wetherald, 636

F.3d 1315 (11th Cir. 2011), had made plain that the application of the definition of

victim in effect in 2011 resulted in an unlawful sentence.

      The district court denied Bates’s motion to vacate. The district court ruled

that Bates was not prejudiced by her trial counsel’s failure to object because she

could not establish that the 54 individuals would not have counted as victims when

the government could have proved that each individual suffered a pecuniary loss.


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The district court granted Bates a certificate of appealability.

                            II. STANDARD OF REVIEW

      A claim of ineffective assistance of counsel presents a mixed question of law

and fact that we review de novo. Gordon v. United States, 518 F.3d 1291, 1296

(11th Cir. 2008).

                                 III. DISCUSSION

      The Sixth Amendment provides that, “[i]n all criminal prosecutions, the

accused shall . . . have the Assistance of Counsel for his defence.” U.S. Const.

amend. VI. And “[t]he right to counsel is the right to the effective assistance of

counsel” at trial and at sentencing. Strickland v. Washington, 466 U.S. 668, 686

(1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)). To

establish a claim of ineffective assistance of trial counsel, a defendant must prove

“that counsel’s performance was deficient” and that the “performance prejudiced

the defense.” Id. at 687.

      For Bates to obtain relief under section 2255, she must satisfy the Strickland

test for ineffectiveness. Bates must establish that a reasonably competent attorney

would have objected to the sentence enhancement as a violation of the Ex Post

Facto Clause and that there is a reasonable probability that the error affected the

outcome of her case. Id. at 687, 693. The unobjected-to error “must at least satisfy

the standard for prejudice that we employ in our review for plain error.” Gordon,


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518 F.3d at 1298. In other words, the error must have affected Bates’s substantial

rights. See United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). “A

substantial right is affected if . . . there is a reasonable probability that there would

have been a different result had there been no error.” United States v. Bennett, 472

F.3d 825, 831–32 (11th Cir. 2006).

      The government concedes that Bates’s trial counsel was ineffective for

failing to object to the plain error of the district court in misapplying the 2011

guideline, and we accept that concession. We have long recognized that the

application of a Sentencing Guideline or its commentary retroactively must operate

to the defendant’s benefit. United States v. Masferrer, 514 F.3d 1158, 1163 (11th

Cir. 2008) (approving use of the guideline in effect at the time of sentencing as

advantageous to the defendant); United States v. Marin, 916 F.2d 1536, 1538 & n.4

(11th Cir. 1990) (vacating sentence and remanding for the district court to apply

the more favorable guideline in effect when the defendant was sentenced).

Although “[w]e apply the version of the sentencing guidelines and commentary in

effect on the date of sentencing,” United States v. Wilson, 993 F.2d 214, 216 (11th

Cir. 1993) (citing 18 U.S.C. § 3553(a)(4)–(5)), “[p]ursuant to the Ex Post Facto

Clause, if applying [that version of] the Guidelines . . . would result in a harsher

penalty, a defendant must be sentenced under the Guidelines in effect at the time

when [she] committed the offense,” United States v. Kapordelis, 569 F.3d 1291,


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1314 (11th Cir. 2009) (error in applying newer guidelines was harmless); see

United States v. Simmons, 368 F.3d 1335, 1338 (11th Cir. 2004) (affirming use of

the guidelines in effect at the time of the offense).

      Several months before Bates’s sentencing hearing, we recognized that the

application of a guideline retroactively could still violate the Ex Post Facto Clause

even though the Sentencing Guidelines had been rendered advisory, see United

States v. Booker, 543 U.S. 220 (2005). United States v. Wetherald, 636 F.3d 1315,

1320–22 (11th Cir. 2011). As we explained in Wetherald, “the application of the

correct Guidelines range [remains] of critical importance” under an advisory

sentencing scheme, id. at 1322, because of the “simple reality” that the Guidelines

“provide a starting point or ‘anchor’ for judges,” id. at 1321 (quoting United States

v. Turner, 548 F.3d 1094, 1099 (D.C. Cir. 2008), and “serve[] to cabin the

potential sentence that may be imposed,” id. Accordingly, we held that “we will

. . . find an Ex Post Facto Clause violation when a district judge’s selection of a

Guidelines range in effect at the time of sentencing rather than that at the time of

the offense results in a substantial risk of harsher punishment.” Id. at 1322. Even

so, we concluded that the failure of the district court to apply “the more lenient

Guidelines sentence in effect at the time of [Wetherald’s] offense” did not entitle

him to relief on direct appeal because he could not “show a substantial risk that the

application of the [newer] Guidelines resulted in the imposition of a harsher


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sentence” when the district court stated that it would have imposed the same

sentence under either version of the guidelines. Id. at 1323–24.

      Bates’s trial counsel performed deficiently by failing to object to the use of

the 2011 guideline as violative of the Ex Post Facto Clause, particularly when the

district court asked counsel how to sidestep applying the newer guideline. The

application of the newer guideline plainly constituted “an Ex Post Facto Clause

violation . . . [that] result[ed] in a substantial risk of harsher punishment” than what

Bates faced when her offense ended in 2007. See id. at 1322. The district court

increased Bates’s offense level by four levels based on its determination that her

offense involved more than 50 victims. See U.S.S.G. § 2B1.1(b)(2)(B). Using the

2011 guidelines, which expanded the definition of victim to include any person

whose means of identification was used unlawfully or without authority, id.

§ 2B1.1 cmt. n.4(E) (Nov. 2011), the district court counted all 54 persons whose

identification Bates stole, which resulted in a total offense level of 27. But under

the commentary to the 2007 guidelines, which required that a person suffer a

pecuniary loss, U.S.S.G. § 2B1.1 cmt. n.1 (Nov. 2007), Bates’s victims included

only the 46 individuals whose personal information she used to claim tax refunds

and the two entities that incurred losses because of her offense. Had the district

court applied the 2007 guideline, the government concedes, Bates would have

received a two-level enhancement for an offense that involved more than 10, but


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less than 50 victims, id. § 2B1.1(b)(2)(A), (B), which would have produced a total

offense level of 25. Counsel’s failure to object to the miscalculation of Bates’s

offense level was an error sufficiently serious to label him as “not functioning as

the ‘counsel’ guaranteed [Bates] by the Sixth Amendment.” See Strickland, 466

U.S. at 687.

      Our decision turns on whether Bates can establish that her counsel’s error

affected her substantial rights. “Errors do affect a substantial right of a party if they

have a ‘substantial influence’ on the outcome of a case or leave ‘grave doubt’ as to

whether they affected the outcome of a case.” Turner, 474 F.3d at 1276 (quoting

United States v. Frazier, 387 F.3d 1244, 1268 n.20 (11th Cir. 2004) (en banc)). We

have held that the miscalculation of a defendant’s offense level, which resulted in a

greater sentencing range than he otherwise would have faced, affected his

substantial rights and entitled him to resentencing. Bennett, 472 F.3d at 834.

Although Bennett’s sentence fell within the corrected guideline range, we

concluded that the miscalculation affected his substantial rights because the district

court had expressed a desire to impose a sentence “toward the low end” of

Bennett’s guideline range. Id.

      The United States Supreme Court held recently in Molina-Martinez v.

United States, 136 S. Ct. 1338 (2016), that “a defendant sentenced under an

incorrect Guidelines range . . . [can] rely on that fact to show a reasonable


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probability that the district court would have imposed a different sentence under

the correct range” so as “to establish an effect on substantial rights.” Id. at 1349.

Based on the same concerns we identified in Wetherald, 636 F.3d at 1321–22,

about the significant role the Guidelines play, Molina-Martinez, 136 S. Ct. at

1345–46, 1349, and the inability of some “defendant[s] [to find] evidence of the

Guidelines’ influence beyond the sentence itself,” id. at 1347, the Supreme Court

concluded that defendants “who [have] shown that the district court mistakenly

deemed applicable an incorrect, higher Guidelines range [have] demonstrated a

reasonable probability of a different outcome” under Federal Rule of Criminal

Procedure 52(b), id. at 1346. “There may be instances when,” the Court

acknowledged, “despite application of an erroneous Guideline range, a reasonable

probability of prejudice does not exist” to substantiate a claim for relief because

the record establishes that “the district court thought the sentence it chose was

appropriate irrespective of the Guidelines range.” Id. at 1346–47. Then again, if

“the record is silent as to what the district court might have done had it considered

the correct Guidelines range,” the Court explained, “the court’s reliance on an

incorrect range in most instances will suffice to show an effect on the defendant’s

substantial rights.” Id. at 1347.

      The Supreme Court concluded that the miscalculation of Molina-Martinez’s

sentencing range affected his substantial rights. Id. at 1347–48. The district court,


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without stating anything “specific about . . . it[s] chose[n] . . . sentence,” adopted

an erroneous calculation of Molina-Martinez’s criminal history level and imposed

a sentence that was at the low end of the sentencing range, but that would have

been in the middle of the sentencing range, had it been calculated correctly. Id.

Based on those facts, the Supreme Court decided that “there [was] at least a

reasonable probability that the District Court would have imposed a different

sentence had it known [a shorter sentence] was in fact the lowest sentence the

Commission deemed appropriate,” id. at 1348, and that Molina-Martinez was

entitled to a new sentencing hearing.

      In the light of Molina-Martinez and Bennett, we conclude that trial counsel’s

deficient performance affected Bates’s substantial rights because there was a

reasonable probability that, had her counsel objected, she would have received a

different sentence. The district court remarked that it could “see giving [Bates] a

sentence at the bottom of the guidelines” and it considered Bates’s request for a

downward variance. The district court obtained a recommendation from Bates’s

probation officer to impose a sentence at the low end of the guideline range and

weighed the reasons underlying the recommendation. With this information in

hand, the district court sentenced Bates to 70 months, which was “the lowest

sentence within what [it] believed to be the applicable range.” See id. at 1347.

Under the 2011 guideline, Bates received a four-level enhancement, which


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produced a sentencing range between 70 and 87 months. Had Bates received only

the two-level enhancement applicable under the 2007 guideline, her sentencing

range would have been 57 to 71 months. Based on the opinion expressed by the

district court and its decision to impose a sentence at the low end of the incorrect

guideline range, there is a reasonable probability that it would have imposed a

lower sentence had it used the correct sentencing range. See Bennett, 472 F.3d at

834. Trial counsel’s failure to object to the application of the 2011 guideline

affected Bates’s substantial rights.

      The district court should have granted Bates’s motion to vacate her sentence

based on the ineffectiveness of her trial counsel. As conceded by the government,

trial counsel performed deficiently by failing to object to the four-level

enhancement on the ground it violated the Ex Post Facto Clause. And Bates was

prejudiced by her counsel’s deficient performance because there is a reasonable

probability that, but for the failure to object, the district court would have

sentenced Bates differently. Bates is entitled to be resentenced using the correct

total offense level of 25, which results from applying a two-level enhancement for

having more than 10 and less than 50 victims who suffered a pecuniary loss, see

U.S.S.G. § 2B1.1(b)(2)(A), (b)(2)(B) & cmt. n.1 (Nov. 2007), and the

corresponding advisory sentencing range of 57 to 71 months of imprisonment.




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                              IV. CONCLUSION

      We VACATE the order denying Bates’s motion to vacate her sentence, and

we REMAND with instructions to resentence Bates using the correct total offense

level of 25 and the corresponding sentencing range of 57 to 71 months of

imprisonment.

      VACATED AND REMANDED.




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