United States of America v. Michael Bragg

U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 25-1281
UNITED STATES OF AMERICA
v.
MICHAEL BRAGG,
Appellant
Appeal from U.S. District Court, M.D. Pa.
Judge Christopher C. Conner (Ret.), No. 1:21-cr-00094-001
Before: BIBAS, CHUNG, and MASCOTT, Circuit Judges
Argued: June 25, 2026; Filed: August 11, 2026
NONPRECEDENTIAL OPINION
CHUNG, Circuit Judge. Michael Bragg appeals the District Court’s order denying his
motion under 28 U.S.C. § 2255 for vacatur of his sentence on the basis that his trial counsel
rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984). He
also appeals the District Court’s denial of an evidentiary hearing on the same claim. We
will affirm.
I. BACKGROUND1
In January 2019, investigators with the Pennsylvania Attorney General’s Office
downloaded two videos of child sexual abuse material (“CSAM”) from an IP address
 This is not an opinion of the full Court and, under 3d Cir. IOP 5.7, is not binding
precedent.
1 Because we write for the parties, we recite only the facts pertinent to our decision.

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associated with Bragg’s residence. State police executed a search warrant for Bragg’s
devices and discovered videos on Bragg’s devices depicting: Bragg sexually abusing his
minor daughter; Bragg sexually abusing his neighbor’s seven-year-old daughter; and
neighborhood children using the bathroom. They also found videos depicting Bragg, who
worked as a healthcare provider at UPMC Pinnacle Health Carlisle, sexually assaulting
female patients while they were unconscious and videos of female patients secretly
recorded in various stages of undress. Some of those patients were minors.
Pennsylvania charged Bragg with sex offenses and other crimes in two counties. For
his conduct, and the videos, relating to his daughter and his neighbor’s child, Franklin
County prosecutors charged Bragg in April 2019, with, inter alia, aggravated indecent
assault of a child, disseminating a depiction of child sex acts, and indecent assault of a
person under thirteen years of age. For his conduct, and the videos, relating to UPMC
patients, Cumberland County prosecutors charged Bragg in December 2019 with close to
four hundred offenses, including aggravated indecent assault, invasion of privacy, and
voyeuristic recording.
In June 2021, a federal grand jury returned a five-count superseding indictment (the
“Indictment”) against Bragg for his conduct and the videos related to his daughter and
neighbor’s child.2 Per a plea agreement, Bragg entered a guilty plea in April 2022 to Count
2 Bragg was charged with three counts of production of images containing the sexual
abuse of a child, in violation of 18 U.S.C. § 2251(a) (Counts One, Two, and Five);
distribution of images containing the sexual exploitation of a child, in violation of 18
U.S.C. § 2252A(a)(2) and (b)(1) (Count Three); and possession of images containing the
sexual exploitation of a child, in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count Four).

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One of the Indictment, for production of CSAM involving his daughter. Bragg agreed that
the conduct charged in Counts Two through Five was relevant conduct to Count One for
Guidelines purposes, and the Government in turn dismissed those counts.
The draft pre-sentence report (the “PSR”) stated that the Franklin County charges “shall
be imposed to run concurrently” pursuant to U.S.S.G. § 5G1.3(c) because they were
relevant conduct to Count One under U.S.S.G. § 1B1.3(a). PSR ¶ 96. Section 5G1.3(c)
provides that “[i]f … a state term of imprisonment is anticipated to result from another
offense that is relevant conduct to the instant offense of conviction under [U.S.S.G.
§ 1B1.3(a)], the sentence for the instant offense shall be imposed to run concurrently to the
anticipated term of imprisonment.” U.S.S.G. § 5G1.3(c) (emphasis added). In turn,
§ 1B1.3(a) defines “relevant conduct.”3
In contrast to the Franklin County charges, the draft PSR noted that the Cumberland
County charges “appear[] to be covered by the Background Commentary at U.S.S.G.
§ 5G1.3.” Id. ¶ 97. That commentary reflects that sentencing courts have discretion, but
are not mandated, to impose a concurrent sentence “with respect to other state
proceedings[.]” U.S. SENT’G GUIDELINES MANUAL § 5G1.3 (U.S. Sent’g Comm’n
3 U.S.S.G. § 1B1.3(a) provides, in part, that “relevant conduct” constitutes: (1)(A) all
acts … committed … by the defendant; and …that occurred during the commission of the
offense of conviction [; or] (2) solely with respect to offenses of a character for
which §3D1.2(d) would require grouping of multiple counts, all acts and omissions
described in subdivisions (1)(A) [] that were part of the same course of conduct or common
scheme or plan as the offense of conviction[.]

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2025).
Bragg’s trial attorney, Jonathan White (“Attorney White”), filed written objections to
the draft PSR and a sentencing memorandum. He did not assert in either that § 5G1.3(c)
also applied to the Cumberland County offenses. The final PSR maintained the position
that § 5G1.3(c) only applied to the Franklin County case. At sentencing, Attorney White
urged the District Court to impose the statutory minimum sentence of 15 years on Count
One, and for the sentence to run concurrently to Bragg’s anticipated state sentences in both
Cumberland and Franklin counties, Attorney White did not cite § 5G1.3(c) nor base his
argument for a concurrent sentence on that provision, nor any Guidelines provision for that
matter. Bragg then addressed the District Court and twice asked it to order the federal
sentence to run concurrently to the anticipated Cumberland County sentence. Pursuant to
U.S.S.G. § 1B1.2(c) and Bragg’s stipulation, Bragg’s total offense level was calculated as
if he were convicted of all counts in the Indictment. It was not calculated as if any count
in the Cumberland County matter constituted relevant conduct.4 The District Court
sentenced Bragg to a Guidelines-range term of 360 months’ imprisonment, to run
concurrently to Bragg’s anticipated sentence in Franklin County, but consecutively to his
anticipated sentence in Cumberland County.
In November 2023, Bragg filed an amended pro se motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence asserting, among other things, that Attorney White
4 As calculated, Bragg’s guideline range was at the maximum total offense level, and
inclusion of the Cumberland County in that calculation would have had no practical effect.

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rendered ineffective assistance by failing to argue that § 5G1.3(c) applied to any
anticipated sentence in Cumberland County. As factual support that the Cumberland
County offenses were relevant conduct, Bragg pointed to the Government’s references to
Bragg’s Cumberland County conduct at his change-of-plea and sentencing hearings. Those
descriptions lacked detail and only generally described his conduct. On appeal, Bragg also
invoked two sentences from the PSR describing his conduct. The District Court denied the
motion and also denied Bragg an evidentiary hearing under § 2255(b). Bragg timely filed
a Notice of Appeal in February 2025. In July 2025, we granted a certificate of appealability
on the ineffective assistance claim. We then appointed counsel.5
II. DISCUSSION6
A. Bragg Has Not Met His Burden on His Strickland Claim
To successfully obtain relief per § 2255 based on an assertion that trial counsel was
ineffective, the burden is on the movant to show by a preponderance of the evidence (1) that
counsel’s performance was deficient; and (2) counsel’s deficient performance prejudiced
the petitioner. United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014) (citing
5 We thank Andrew Odell and Aleksander Mehta, the University of Virginia School, and
supervisors Catherine Stetson and J. Scott Ballenger, for their roles in providing pro bono
counsel to Bragg. We commend Mr. Odell and Mehta for their able and professional
briefing and argument.
6 The District Court had jurisdiction under 28 U.S.C. § 2255. We have jurisdiction under
28 U.S.C. §§ 2253(a), 2255(d), and 1291. We review a denial of a § 2255 motion de novo
with respect to a district court’s legal conclusions and for clear error as to its factual
findings. United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014). We review a denial
of an evidentiary hearing under § 2255(b) for abuse of discretion. United States v. Tolliver,
800 F.3d 138, 140 (2015)

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Strickland, 466 U.S. at 687); United States v. Grier, 475 F.3d 556, 561 (3d Cir. 2007)
Bragg argues that Attorney White’s performance was deficient because he failed to
raise the “strong argument” that the Cumberland County charges were relevant conduct
under U.S.S.G. § 5G1.3(c). Bragg contends that (1) a state sentence in connection with the
Cumberland County charges was “anticipated” under § 5G1.3(c) because those charges
were pending at the time of his federal sentencing; and (2) the Cumberland County charges
were “relevant conduct” within the meaning of § 1B1.3(a). Therefore, Bragg argues,
Attorney White rendered deficient performance in failing to argue for the application of
§ 5G1.3(c).
Assuming arguendo that Attorney White’s performance was deficient, Bragg cannot
establish prejudice under the second Strickland prong. Bragg contends he was prejudiced
because he received a fifteen-year sentence on his Cumberland County case and his federal
sentence was ordered to run consecutively to that sentence. Bragg does not, however, state
which of the hundreds of the Cumberland County offenses carried that sentence, nor does
he describe how any particular offense constituted relevant conduct. Even if Attorney
White had argued for the application of § 5G1.3(c), there is no “reasonable probability”
that the District Court would have agreed that it applied given this minimal detail.
Strickland, 466 U.S. at 694; Molina-Martinez v. United States, 578 U.S. 189, 200 (2016).
Supposing nonetheless that there is a reasonable probability that the District Court
would have found § 5G1.3(c) applied to the Cumberland County offenses, Bragg still fails
at this prong. Bragg argues that because the District Court applied the prescriptive text of
§ 5G1.3(c) to the Franklin County offenses, and imposed a concurrent sentence, it would

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also have done so with the Cumberland County offenses. We are not persuaded. When
§ 5G1.3(c) applies, a district court maintains the discretion to order that a federal sentence
run consecutively, despite § 5G1.3(c)’s use of the word “shall.” See United States v.
Booker, 543 U.S. 220, 245 (2004). The record reflects that both Attorney White and Bragg
asked the District Court at sentencing to impose a sentence that would run concurrently
with Bragg’s anticipated sentence in Cumberland County. Based on the severity of Bragg’s
conduct, the District Court rejected those requests. In doing so, it had the same information
regarding the Cumberland County charges as presented in the § 2255 motion. As the
District Court’s decision was always discretionary, there is nothing in the § 2255 motion
to support the conclusion that it would have exercised that discretion differently under §
5G1.3(c). And because a petitioner fails to demonstrate prejudice if “[t]he record …
[shows] … that the district court thought the sentence it chose was appropriate irrespective
of the Guidelines [application],” Molina-Martinez, 578 U.S. at 200, we cannot conclude
that Bragg has established a “substantial” likelihood that his sentence would have been
different had Attorney White argued for the application of § 5G1.3(c). Harrington v.
Richter, 562 U.S. 86, 112 (2011).
B. The District Court Did Not Abuse Its Discretion in Denying Bragg an
Evidentiary Hearing
Bragg argues that, in the alternative, the District Court abused its discretion in denying
Bragg an evidentiary hearing on his § 2255 motion. A “district court abuses its discretion
if it fails to hold an evidentiary hearing when the files and records of the case are
inconclusive as to whether the movant is entitled to relief.” United States v. Tolliver, 800

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F.3d 138, 140 (2015) (quoting United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005)).
Where a “petition allege[s] any facts warranting relief under § 2255 that are not clearly
resolved by the record, the District Court [is] obligated to follow the statutory mandate to
hold an evidentiary hearing.” Tolliver, 800 F.3d at 141 (quoting Booth, 432 F.3d at 546)).
This involves a two-prong inquiry. United States v. Arrington, 13 F.4th 331, 334 (3d Cir.
2021). “First, the district court must consider as true all appellant’s nonfrivolous factual
claims.” Id. (quoting United States v. Dawson, 857 F.2d 923, 927 (3d Cir. 1988) (cleaned
up)). “Second, it must ‘determine whether, on the existing record, those claims that are
nonfrivolous conclusively fail to show ineffective assistance of counsel.’” Id. “If a
nonfrivolous claim clearly fails to demonstrate either deficiency of counsel’s performance
or prejudice to the defendant, then the claim does not merit a hearing.” Dawson, 857 F.2d
at 928. In alleging facts to support his claim, Bragg relies on the broad descriptions made
by the Government during his change-of-plea and sentencing hearings, and the two
sentences in the PSR. These are so lacking in detail that they “clearly fail[] to demonstrate
… prejudice to the defendant.” Id. Accordingly, we discern no abuse of discretion in the
District Court’s denial of an evidentiary hearing.
* * * * *
For the reasons stated above, we will AFFIRM the order of the District Court.
Counsel for Appellant
Andrew Odell [Argued]
Aleksander Mehta [Argued]
Catherine E. Stetson
J. Scott Ballenger
UNIVERSITY OF VIRGINIA SCHOOL OF LAW

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Counsel for Appellee
Patrick J. Bannon [Argued]
Carlo D. Marchioli
OFFICE OF UNITED STATES ATTORNEY
MIDDLE DISTRICT OF PENNSYLVANIA

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