USA v. McGuire

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
BRIAN KEITH MCGUIRE,
Defendant.
Case No. 3:14-cr-00116-TMB-1
ORDER ON MOTION TO VACATE,
SET ASIDE, OR CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255
(DKT. 78)
I. 	INTRODUCTION
The matter comes before the Court on Defendant Brian Keith McGuire’s Motion to Vacate,
Set Aside, or Correct pursuant to 28 U.S.C. § 2255 (the “Motion”).1 The Motion seeks to withdraw
McGuire’s guilty plea on the grounds that it was involuntary due to ineffective assistance of
counsel.2 Alternatively, the Motion requests that McGuire be resentenced.3 McGuire initially filed
his Motion to Vacate pro se; then, after the Court granted his Motion to Appoint Counsel,4
McGuire filed a First Amended Motion to Vacate.5 The United States opposes the Motion.6 The
parties did not request an oral argument and the Court finds it would not be helpful. For the reasons
stated below, McGuire’s Motion to Vacate are DENIED.
1 Dkts. 78 (Motion to Vacate).
2 Id. at 1.
3 Id.
4 Dkt. 82 (Order Regarding Section 2255 Proceedings and Appointment of Counsel).
5 Dkt. 94 (First Amended Motion to Vacate).
6 Dkt. 115 (Response in Opposition).
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II. 	BACKGROUND
This case arises out a guilty plea entered by McGuire, in which he admitted to sexually
abusing his 15-year-old step-daughter, Juvenile A, and to creating at least 300 images and 48
videos of that abuse.7 On September 9, 2014, Juvenile A disclosed that she had been abused by
McGuire to her volleyball coach.8 Juvenile A was later forensically interviewed by the Anchorage
Police Department (“APD”) and stated that she believed McGuire recorded the abuse on his
iPhone.9 The APD applied for, received, and executed a search warrant on McGuire’s residence
on September 9, 2014.10 During the search, APD seized several of McGuire’s electronic devices
including two Asus laptops and accompanying hard drives.11 APD’s forensic analysis of the laptop
and hard drives revealed that they contained child pornography, including images and videos of
McGuire abusing Juvenile A.12 The State of Alaska issued a no-bail warrant for McGuire’s arrest
on November 26, 2014.13
On December 16, 2014, the United States indicted McGuire for crimes related to his sexual
exploitation of Juvenile A.14 The Indictment alleged six counts: three counts of Permitting a Minor
to Engage in Sexually Explicit Conduct for the Production of Child Pornography in violation of
7 Dkt. 106 at 26–29 (Change of Plea Transcript).
8 Dkt. 42 at 12 (Final Presentence Report).
9 Dkt. 115 at 3.
10 Dkt. 42 at 12–13.
11 Id. at 12 n.5.
12 Id. at 12–13.
13 Dkt. 115 at 3.
14 Dkt. 2 (Indictment).
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18 U.S.C. §§ 2251(b) and (e), and three counts of Production of Child Pornography in violation of
18 U.S.C. §§ 2251(a) and (e).15 At the time, McGuire was in the State of Alaska’s custody awaiting
trial for 48 counts of Sexual Abuse in the First Degree in violation of AS 11.41.434(a)(2), Sexual
Abuse of a Minor in the Second Degree in violation of AS 11.41.436(a)(3), Unlawful Exploitation
of a Minor in violation of AS 11.41.455(a)(1) and (2), and the Possession of Child Pornography in
violation of AS 11.61.127(a).16
McGuire was arraigned on the federal charges on December 22, 2014 and pleaded not
guilty.17 At some point after arraignment, McGuire retained the services of Attorney John M.
Murtagh (“Counsel”) who was also representing McGuire in the state prosecution.18 At all relevant
times during his state and federal prosecutions, McGuire was represented by Counsel.19
After negotiating a Plea Agreement20 with the United States, McGuire notified the Court
he intended to change his plea to guilty.21 Under the terms of the Plea Agreement, McGuire agreed
to plead guilty to Counts 1 and 4—i.e., one count of Permitting a Minor to Engage in Sexually
Explicit Conduct for the Production of Child Pornography, 18 U.S.C. §§ 2251(b) and (e); and one
15 Id.
16 State of Alaska v. McGuire, 3AN-14-10779CR.
17 Dkt. 7 (Minute Entry Arraignment).
18 Dkt. 6 (Notice of Appearance).
19 Dkt. 115-21 at 1.
20 Dkt. 38 (Plea Agreement).
21 Dkt. 36 (Notice of Intent to Change Plea).
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count of Production of Child Pornography, 18 U.S.C. §§ 2251(a) and (e).22 The rest of the charges
would be dismissed.23 McGuire entered a guilty plea on March 7, 2016.24
Previously, on February 22, 2016, McGuire pleaded guilty in state court to a consolidated
count of Sexual Abuse of a Minor in the Second Degree.25 On May 6, 2016, the state court
sentenced him to a 25-year term of imprisonment with 5 years suspended followed by 15 years of
probation.26
The Presentence Report (“PSR”) calculated that McGuire’s total offense level was 42, with
a criminal history category of I.27 Given McGuire’s offense level and criminal history, the United
States Sentencing Guidelines (the “Guidelines”) would dictate a sentencing range of 360 months
to life in prison.28 However, each count to which McGuire pleaded guilty carried a statutory
minimum of 15-years of imprisonment and a statutory maximum of 30-years of imprisonment.
Under these circumstances, the Guidelines range was calculated as 360 to 720 months.29 On
July 6, 2016, after consideration of the PSR and the factors identified in 18 U.S.C. §3553(a), the
Court sentenced McGuire to a 240-month term of imprisonment on each count, to run
22 Dkt. 38 at 2.
23 Id.
24 Dkt. 40 (Minute Entry Change of Plea).
25 State of Alaska v. McGuire, 3AN-14-10779CR.
26 Id. (State Judgment).
27 Dkt. 42 at 1.
28 United States Sentencing Commission, Guidelines Manual, Sentencing Table (Nov. 2016)
29 Dkt. 42 at 29.
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concurrently, followed by a lifetime of supervised release.30 The Court also ordered that
McGuire’s federal sentence run concurrently with his state sentence.31
On May 18, 2017, McGuire filed an initial Motion to Vacate under 28 U.S.C. § 2255 and
moved to appoint counsel.32 McGuire’s original Motion to Vacate asserted fifteen grounds for
relief.33 One year later, on May 18, 2018, McGuire, through counsel, filed an Amended Motion to
Vacate which narrowed and clarified his asserted grounds for relief.34 The Amended Motion
argues that McGuire’s trial counsel, Counsel, was ineffective for four reasons: (1) Counsel failed
to seek the suppression of the contents of McGuire’s cell phone and a computer password allegedly
obtained in violation of defendant’s Miranda rights; (2) Counsel did not meaningfully advise
McGuire regarding his potential sentencing exposure; (3) Counsel failed to effectively advocate
for a federal sentence that ran concurrently with a state sentence; and (4) Counsel failed to object
to the PSR’s offense level calculations.35 On March 25, 2019, the United States filed a Response,
which opposed McGuire’s Motion on each ground.36 On August 9, 2019, McGuire filed a Reply.37
The Motion has been fully briefed and is now ripe for resolution.38
30 Dkt. 52 (Judgment).
31 Id. at 2.
32 Dkts. 78 and 79 (Motion to Appoint Counsel).
33 Id.
34 Dkt. 94.
35 Id.at 3–11.
36 Dkt. 115.
37 Dkt. 121 (Reply)
38 Dkt. 94; Dkt. 115; Dkt. 121.
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III. 	LEGAL STANDARD
Under 28 U.S.C. § 2255, a district court may “vacate, set aside, or correct” a sentence of a
federal prisoner that was imposed in violation of the Constitution or a law of the United States. On
a motion for relief under 28 U.S.C. § 2255, “[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt
hearing thereon, determine the issues and make findings of fact and conclusions of law with respect
thereto.”39 If the Court determines that relief is warranted, “the court shall vacate and set the
judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate.”40
However, “the district court may deny a § 2255 motion without holding an evidentiary
hearing if ‘(1) the petitioner’s allegations, accepted as true, would not entitle him to relief; or (2)
the allegations cannot be accepted as true because they are contradicted by the record, inherently
incredible, or allege conclusions rather than statements of fact.’”41 Thus, “if the record refutes the
applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required
to hold an evidentiary hearing.”42 “Section 2255 requires only that the district court give a claim
39 28 U.S.C. § 2255(b).
40 Id.
41 United States v. Geozos, No. 3:06-CR-082-RRB-JDR, 2010 WL 4942571, at *2 (D. Alaska
Nov. 24, 2010) (quoting Dhillon Khosla, 28 U.S.C. § 2255 Checklist/Updated Supplement to
Habeas Corpus Outline 5 (2005)); see also Lopez-Lopez v. United States, No. CR 05-1242 TUC-
DCB, 2006 WL 2850055, at *1 (D. Ariz. Sept. 28, 2006) (“A district court shall summarily dismiss
a § 2255 petition ‘[i]f it plainly appears from the face of the motion and any annexed exhibits and
the prior proceedings in the case that the movant is not entitled to relief.’” (quoting Rule 4(b),
Rules Governing § 2255 Actions)).
42 Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
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careful consideration and plenary processing, including full opportunity for presentation of the
relevant facts.”43
A. 	Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is rooted in the Sixth Amendment right to
counsel, which is applicable at the plea-bargaining stage of a criminal proceeding.44 A defendant
asserting a claim of ineffective assistance of counsel must satisfy the two-pronged test defined in
Strickland v. Washington.45 Under that test, a defendant must show that (1) counsel’s performance
was deficient, i.e., “fell below ‘an objective standard of reasonableness;’” 46 and (2) that the
deficiency was prejudicial to the defense, i.e., “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”47
In addressing the first element, the performance prong, judicial scrutiny of an attorney’s
performance, especially in hindsight, is highly deferential.48 Attorney conduct should be evaluated
from the attorney’s perspective at the time of the representation.49 Generally, an attorney’s
performance is strongly presumed to fall within the wide range of reasonably professional,
competent 	assistance.50 “The reasonableness 	of 	counsel’s 	actions 	may be determined 	or
43 Shah v. United States, 878 F.2d 1156, 1159 (9th Cir. 1989) (internal quotations omitted).
44 Lafler v. Cooper, 566 U.S. 156, 162 (2012). See also Hill v. Lockhart, 474 U.S. 52, 58 (1985).
45 466 U.S. 668 (1984).
46 Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 688).
47 Strickland, 466 U.S. at 694. See also United States v. Signori, 844 F.2d 635, 638 (9th Cir.1988).
48 Strickland, 466 U.S. at 689.
49 Id.
50 Id.
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substantially influenced by the defendant’s own statements or actions. Counsel’s actions are
usually based, quite properly, on informed strategic choices made by the defendant and on
information supplied by the defendant.”51
The second prong, prejudice, “focuses on the question whether counsel’s deficient
performance renders the result of . . . the proceeding fundamentally unfair.”52 A reasonable
probability that the results of the proceeding would have been different is “a probability sufficient
to undermine confidence in the outcome.”53 A defendant must make a greater showing than simply
asserting an error that could theoretically have some effect on the outcome of the proceeding, but,
a showing by a preponderance of the evidence is not required by Strickland.54
Thus, a defendant must prove both deficient performance and consequent prejudice to
succeed in establishing ineffective assistance.55 The court may evaluate one or both prongs in
determining whether to grant a defendant’s habeas petition on these grounds. However, the court
need not inquire whether an attorney’s performance was deficient if such alleged deficiency could
not have resulted in prejudice under Strickland. 56
51 Id. at 691.
52 Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
53 Strickland, 466 U.S. at 694.
54 Duncan v. Ornoski, 528 F.3d 1222, 1246 (9th Cir. 2008).
55 United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995) (“[P]etitioner bears the
burden of establishing both.”).
56 Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir.2002) (citing Strickland, 466 U.S. at 697).
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B. 	Ineffective Assistance of Counsel in Plea Agreements
“Because ‘an intelligent assessment of the relative advantages of pleading guilty is
frequently impossible without the assistance of an attorney’ . . . counsel have a duty to supply
criminal defendants with necessary and accurate information.”57 Where a petitioner alleges
ineffective assistance of counsel when entering into a plea agreement, “[t]he longstanding test for
determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent
choice among the alternative causes of action open to the defendant.’”58 For a guilty plea, a
petitioner can only “attack the voluntary and intelligent character of the guilty plea by showing
that the advice he received from counsel was not within [the range of competence demanded of
attorneys in criminal cases].”59 In addition, to satisfy the prejudice prong of the Strickland standard
in the context of a guilty plea, a petitioner must “show the outcome of the plea process would have
been different with competent advice;” in other words, the petitioner must show “that there is a
reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty
and would have insisted on going to trial.”60
IV. 	ANALYSIS
McGuire’s Motion raises four grounds for ineffective assistance of counsel: (1) Counsel
failed to seek the suppression of the contents of McGuire’s cell phone, and a password obtained in
violation of defendant’s Miranda rights; (2) Counsel did not meaningfully advise McGuire of the
57 Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986), overruled on other grounds by United States v.
Rodriguez–Razo, 962 F.2d 1418 (9th Cir. 1992) (quoting Brady v. United States, 397 U.S. 742,
748 n. 6 (1970)).
58 Signori, 844 F.2d at 638 (quoting Hill, 474 U.S. at 56).
59 Hill, 474 U.S. at 58 (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973)).
60 Lafler, 566 U.S. at 163.
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penalty range he was likely to face after pleading guilty; (3) Counsel failed to effectively advocate
for a concurrent sentence; and (4) Counsel failed to object to the PSR’s offense level calculations.61
The United States argues that each of McGuire’s assertions are without merit.62 The Court
discusses each ground in turn.
A. 	Whether Trial Counsel Was Ineffective For Not Seeking the Suppression of the Contents
of McGuire’s Cell Phone, and a Password Obtained in Violation of McGuire’s Miranda
Rights
McGuire first argues Counsel was ineffective for failing to investigate whether APD
acquired McGuire’s passwords to his laptop and iPhone in violation of his Miranda rights.63
McGuire asserts that “[w]ithout the acquisition of [his] password, it is extremely unlikely that
agents would have been able to access the contents of his computer” and without the digital
evidence that his conduct crossed-state lines, McGuire would never have faced federal charges.64
McGuire further asserts that had Counsel investigated the Miranda issue and moved to suppress
the cell phone and computer contents, “a Miranda motion would have been meritorious and there
is a reasonable probability that granting the motion would have affected the outcome of the case.”65
In opposition, the United States argues that McGuire is barred from raising constitutional
deprivations that arose before his guilty plea.66 Additionally, the United States argues that
61 Dkt. 94 at 3–12.
62 Dkt. 115.
63 Dkt. 94 at 3.
64 Id. at 7.
65 Id. at 5.
66 Dkt. 115 at 24. Specifically, the United States argues that McGuire waived such claims under
the Plea Agreement. Id.
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McGuire’s claim fails as a matter of fact because the laptop containing the child pornography was
not password protected when it was seized.67 Finally, the United States argues that Counsel’s
choice not to pursue a motion to suppress during plea negotiations was an informed strategic choice
rather than ineffective assistance.68
For purposes of the Order, the Court assumes that McGuire is permitted to argue his
Miranda claim as it relates to the effectiveness of his counsel at trial.69 Even if, arguendo, APD
acquired McGuire’s passwords through a violation of McGuire’s Miranda rights. McGuire’s claim
fails on the merits.70 To prevail on his claim under Strickland, McGuire must show that by not
filing a motion to suppress, his trial counsel’s performance fell below “an objective standard of
reasonableness”71 and that had trial counsel filed a motion to suppress, there is a reasonable
probability that “the result of the proceeding would have been different.”72
McGuire cannot show deficient performance. “[T]he failure to file a suppression motion
does not constitute per se ineffective assistance of counsel.”73 As the Ninth Circuit advises, courts
67 Id. at 22–23.
68 Id. at 26–27.
69 See Kimmelman v. Morrison, 477 U.S. 365, 379. (“We also reject the suggestion that criminal
defendants should not be allowed to vindicate through federal habeas review their right to effective
assistance of counsel where counsel’s primary error is failure to make a timely request for the
exclusion of illegally seized evidence . . . .”).
70 The United States does not argue that APD did not acquire McGuire’s passwords in violation of
Miranda. Instead, the United States argues that whether or not a Miranda violation occurred,
McGuire suffered no prejudice. Dkt. 115 at 26.
71 Strickland, 466 U.S. at 688.
72 Id.
73 Kimmelman, 477 U.S. at 384.
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should evaluate trial counsel’s conduct considering “counsel's perspective at the time of the alleged
error and in light of all the circumstances,”74 and apply a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”75 “In determining
whether [Petitioner] received effective assistance of counsel, [courts] will neither second-guess
counsel’s decisions, nor apply the fabled twenty-twenty vision of hindsight, but rather, will defer
to counsel’s sound trial strategy.”76 Additionally, courts should view trial counsel’s conduct in
light of the defendant’s statements or actions.77
Here, Counsel’s decision not to pursue a motion to suppress was reasonable. Counsel’s
Affidavit attests to his considerations in not pursuing a motion to suppress during plea
negotiations.78 Counsel states that his first consideration was that he and McGuire “began the case
looking towards [sic] negotiations and did not have to reach the stage of motion practice.”79 Given
the stage of McGuire’s case—not yet proceeding to trial—it is not objectively unreasonable that
an attorney would decide not to pursue a motion to suppress at that time.
Additionally, contrary to McGuire’s assertions, Counsel’s decision was made with
consideration and investigation of the merits of a Miranda claim. Counsel reviewed the audio of
74 Id. at 381.
75 Strickland, 466 U.S. at 687. See also Harrington v. Richter, 562 U.S. 86 (2011).
76 Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001) (internal quotation and citation
omitted).
77 Kimmelman, 477 U.S. at 384.
78 Dkt. 115-21 (Counsel Affidavit).
79 Id. at 3.
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McGuire’s initial police contact.80 He observed that McGuire declined to be interviewed, asserted
his right to counsel, and was subsequently asked for the passwords to his devices.81 Counsel states
that, based on what he heard, he did not conclude that the McGuire was in “full custody” at the
time of the questioning—a potential bar to a Miranda claim.82 Additionally, Counsel believed that
police would have been able to access the devices without the passwords.83 Therefore, he
determined that a motion to suppress would likely be futile in light of the doctrine of inevitable
discovery.84 McGuire does not specifically dispute Counsel’s assertions. Instead, McGuire rests
on his bare allegations that Counsel failed to investigate.85
Based on the record, Counsel’s decision not to pursue a motion to suppress during plea
negotiations was not objectively unreasonable. Counsel took reasonable steps to investigate
McGuire’s potential claim and made a reasoned judgment based on his professional determination
that a Miranda claim was likely futile.86 Counsel’s decision is reinforced by McGuire’s indications
that he wished to negotiate a beneficial plea agreement rather than go to trial.87 Therefore,
80 Id.
81 Id.
82 Id. at 3–4.
83 Id. at 4.
84 Id.
85 Dkt. 94 at 3–7. “Conclusory allegations which are not supported by a statement of specific facts
do not warrant habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir.1994).
86 The Court does not decide whether Counsel’s conclusions were in fact correct. Rather, the Court
only inquires into whether his investigations and subsequent decisions were reasonable in light of
the circumstances.
87 The United States has provided numerous letters McGuire sent to Counsel, in which McGuire
stated that he did not want to go to trial. See, e.g., Dkt. 115-9 at 3 (“I don’t want to go to trial [and]
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Counsel’s decision not to file a motion to suppress does not amount to ineffective assistance of
counsel under Strickland. Accordingly, McGuire is not entitled to relief on this ground.
B. 	Whether Trial Counsel Meaningfully Advised McGuire of the Penalty Range He was
Likely to Face
McGuire claims that Counsel miscalculated his sentencing exposure, which amounted to
ineffective assistance of counsel.88 McGuire asserts that on February 19, 2016, Counsel calculated
that McGuire’s total offense level was 35 with an anticipated a Guideline range of 135 to168
months.89 At the time he entered into the Plea Agreement McGuire claims that he believed that his
sentence would be capped at 15 years.90 However, as calculated by the PSR, McGuire’s total
offense level was 42, which carried a Guideline range of 360 to 720 months.91 McGuire now argues
that Counsel’s error amounts to ineffective assistance, and further contends that he would not have
pleaded guilty had he known his Guidelines range was considerably higher than what Counsel had
calculated.92
A guilty plea is invalid if a defendant does not understand the charges against him or the
possible punishment he faces.93 In the guilty plea context, “the gross mischaracterization of the
likely outcome” of a guilty plea “combined with the erroneous advice on the possible effects of
drag [Juvenile A] into court.”); Id. at 13 (“I really don’t want to go to trial but I hope that alot [sic]
of what I put down here can be used for ‘deal making’”).
88 Dkt. 94 at 7–9.
89 Id. at 7.
90 Id. at 7–8.
91 Dkt. 42.
92 Dkt. 94 at 8–9.
93 Iaea, 800 F.2d at 866 (citations omitted).
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going to trial, falls below the level of competence required of defense [counsel].”94 However, a
“mere inaccurate prediction, standing alone, [does] not constitute ineffective assistance” of
counsel.95 Rather, to show prejudice in the context of 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.”96 In the context of a sentencing miscalculation, a
defendant suffers no prejudice if a court (1) accurately informs the defendant of the potential
sentencing range they would face after pleading guilty, and (2) informs the defendant that the
discretion to impose a sentence remained entirely with the court.97
For example, in Doganiere, a § 2255 petitioner argued he received ineffective assistance
of counsel because his trial counsel indicated he would receive a maximum sentence of twelve
years imprisonment if he pleaded guilty.98 However, at sentencing the court sentenced petitioner
to fifteen years imprisonment followed by twenty years of probation.99 Nevertheless, the Ninth
94 Womack v. McDaniel, 497 F.3d 998, 1003 (9th Cir. 2007) (internal quotations omitted).
95 United States v. Turner, 881 F.2d 684, 687 (9th Cir.1989), overruled on other grounds, United
States v. Rodriguez–Razo, 962 F.2d 1418 (9th Cir.1992) (quoting Iaea, 800 F.2d at 865). See also
Donganiere v. United States, 914 F.2d 165, 168 (9th Cir.1990); Riggs v. Fairman, 399 F.3d 1179,
1182–83 (9th Cir.2005) (finding gross mischaracterization when counsel represented that the
maximum sentencing exposure was nine years when actual exposure was 25 years to life).
96 Iaea, 800 F.2d at 865 (quoting Hill, 106 U.S. at 59).
97 United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir. 1987). See also Chua Han Mow v.
United 	States, 	730 	F.2d 	1308 	(9th 	Cir.1984) 	(holding 	petitioner’s 	claim 	of 	ineffective
representation meritless because the district court adequately informed him of the possible
sentence and because he stated at the plea hearing that he was satisfied with his attorney); United
States v. Boniface, 601 F.2d 390 (9th Cir.1979) (defendant not prejudiced by counsel’s statement
that he would only get a five-year sentence because court clearly told defendant it was not bound
to accept plea agreement).
98 Doganiere, 914 F.2d at 168.
99 Id.
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Circuit found that “[petitioner] suffered no prejudice from his attorney’s prediction because, prior
to accepting his guilty plea, the court explained that the discretion as to what the sentence would
be remained entirely with the court.”100
Similarly, 	in 	Gonzalez, 	a 	§ 2255 	petitioner 	argued 	that 	his 	attorney’s 	“gross
miscalculation” of his likely sentence under the Guidelines constituted ineffective assistance of
counsel.101 	Without 	discussing 	whether 	trial 	counsel’s 	calculation 	constituted 	a 	“gross
miscalculation,” the Ninth Circuit found that the petitioner failed to show he suffered prejudice
because the sentencing court informed Gonzalez of the maximum possible sentences for the
offenses to which he pleaded guilty.102
The Court does not inquire into whether Counsel incorrectly calculated McGuire’s
Guideline range because McGuire cannot show he suffered prejudice. McGuire claims that he
suffered prejudice from Counsel’s miscalculation because he would not have accepted the Plea
Agreement had he known his range would be higher than 15 years.103 However, this assertion is
plainly contradicted by the record. At McGuire’s change of plea hearing, he participated in an
extended colloquy with the Court:104
THE COURT: All right. And I’m sorry, I may have asked this question, but if I am
repeating myself, I have to apologize. Are you satisfied with the work that
Mr. Murtagh’s done for you in this case?
THE DEFENDANT: Yes, yes.
100 Id.
101 Gonzalez v. United States, 33 F.3d 1047, 1048 (9th Cir. 1994).
102 Id. at 1051–52. Furthermore, when asked by the sentencing court whether he was satisfied with
his attorney’s representation of him, he responded affirmatively. Id. at 1052.
103 Id.
104 Dkt. 106 (Change of Plea Hearing).
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. . . .
THE COURT: Yes, thank you -- Page 9. So for Count 1 -- actually, they’re the
same for both Counts 1 and 4. It’s a mandatory minimum of 15 years, up to 30 years
of imprisonment, a fine of up to $250,000, a 100-dollar mandatory special
assessment -- and again, the fine and special assessment are as to each count -- and
not less than -- actually, it should be not fewer than five years and not more than
life on supervised release. Do you understand the maximum penalties?
THE DEFENDANT: I do, sir.
THE COURT: Now, the sentence that’s imposed might be harsher than the one you
expect or even one that the Government recommends. If that happens, as I
mentioned before, you’re still going to be bound by your guilty plea and unable to
withdraw from your plea as long as the punishment that’s imposed is consistent
with your plea agreement. Do you understand that?
THE DEFENDANT: I do.105
The above excerpt shows that not only was McGuire informed by the Court that each of the counts
to which he would be pleading guilty carried a statutory sentencing range of 15 to 30 years, but
also McGuire was informed that the Court had discretion to impose a harsher sentence than one
discussed or expected by the Parties.
Thus, McGuire’s claim that he was surprised to learn that his Guideline range was 360 to
720 months when he received the PSR is not credible. Despite Counsel’s alleged miscalculations
during plea negotiations, the Court accurately informed McGuire of his potential sentencing range
and informed McGuire that the discretion to impose a sentence remained entirely with the Court.
Therefore, under Doganiere and Gonzalez, McGuire did not suffer prejudice from Counsel’s
alleged miscalculations. He was apprised of the potential sentence before he changed his plea and
decided to proceed. Accordingly, McGuire is not entitled to relief on this ground.
105 Id. at 15 and 23.
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C. Whether Trial Counsel Failed to Effectively Advocate for a Concurrent Sentence
Next, McGuire claims that by failing to challenge certain statements made by the Court
during sentencing, Counsel rendered ineffective assistance.106 McGuire asserts that the Court
erroneously indicated that it could order McGuire’s federal sentence to run consecutive to his state
sentence.107 McGuire further asserts that when this occurred, Counsel failed to correct the court
and did not argue for a concurrent sentence.108 However, McGuire concedes “[he] ultimately
received a fully concurrent sentence. . . .”109 Therefore, any failure to effectively advocate for a
concurrent sentence resulted in no prejudice to McGuire. Accordingly, McGuire is not entitled to
habeas relief on this ground.
D. Whether Trial Counsel Was Ineffective for Failing to Object to the PSR’s Offense
Calculations
Finally, McGuire claims that he received ineffective assistance of counsel because Counsel
failed to raise a meritorious objection to a Guideline enhancement applied by the PSR.110
Specifically, McGuire contends that Counsel “failed to identify a case that was directly on point”
when he objected to the PSR’s calculations, which found that McGuire’s two counts could not be
grouped.111
106 Dkt. 94 at 9.
107 Id.
108 Id.
109 Id.
110 Id. at 10.
111 Id.
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“An attorney’s ignorance of a point of law that is fundamental to his case combined with
his failure to perform basic research on that point is a quintessential example of unreasonable
performance under Strickland.”112 In criminal cases, “counsel has a duty to make reasonable
investigations 	or 	to 	make 	a 	reasonable 	decision 	that 	makes 	particular 	investigations
unnecessary.”113 While there is a dearth of case law identifying the bounds of “reasonable” legal
research, the Ninth Circuit has recently clarified that in the context of fact investigations “‘[t]he
duty to investigate and prepare a defense’ is flexible, but it ‘is not limitless: it does not necessarily
require that every conceivable witness be interviewed or that counsel must pursue ‘every path until
it bears fruit or until all conceivable hope withers.’” 114 Further, “[i]n assessing the reasonableness
of an attorney’s investigation . . . , a court must consider not only the quantum of evidence already
known to counsel, but also whether the known evidence would lead a reasonable attorney to
investigate further.”115
112 Hinton v. Alabama, 571 U.S. 263, 274 (2014) (citing Williams v. Tayler, 529 U.S. 362, 395
(2000) (finding deficient performance where counsel “failed to conduct an investigation that would
have uncovered extensive records [that could be used for death penalty mitigation purposes], not
because of any strategic calculation but because they incorrectly thought that state law barred
access to such records”); Kimmelman, 477 U.S. at 385 (finding deficient performance where
counsel failed to conduct pretrial discovery and that failure “was not based on ‘strategy,’ but on
counsel’s mistaken belie[f] that the State was obliged to take the initiative and turn over all of its
inculpatory evidence to the defense”)).
113 Strickland, 466 U.S. at 691.
114 Clark v. Chappell, No. 14-99005, 2019 WL 4196988, at *21 (9th Cir. Sept. 5, 2019) (quoting
United States v. Tucker, 716 F.2d 576, 584 (9th Cir. 1983)).
115 White v. Ryan, 895 F.3d 641, 670 (9th Cir. 2018) (quoting Wiggins v. Smith, 539 U.S. 510, 524
(2003)).
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Here, McGuire concedes Counsel objected to the PSR’s Guideline calculation.116 Counsel
argued that McGuire’s counts should be grouped in order to avoid an upward adjustment of the
total 	offense 	level.117 	Furthermore, 	Counsel 	maintained 	this 	objection 	in 	his 	sentencing
memorandum.118 Nevertheless, McGuire asserts that there was a case on point, United States v.
Tank,119 which Counsel did not discover.120
McGuire does not—and cannot—credibly allege that Counsel failed to research the issue.
In support of his objection, Counsel cited to the commentary of 3D1.2 and accompanying case law
demonstrating he 	examined 	the Guidelines 	and 	related 	authorities.121 Therefore, 	Counsel
conducted enough research to support his objection with legal authority. It is not unreasonable that
Counsel would stop researching after he found sufficient support to raise a colorable argument. To
hold otherwise would require trial counsel to exhaustively research every potential legal source.
This standard would be untenable. 122 Although his objection was ultimately unsuccessful, it is
well-settled that ineffective assistance of counsel stems from failure to make reasonable efforts
116 Dkt. 94 at 10.
117 Dkt. 42 at 35; Dkt. 115-21 at 11–14.
118 Dkt. 46 at 10 (McGuire’s Sentencing Memorandum).
119 200 F.3d 627, 632 (9th Cir. 2000).
120 Dkt. 94 at 10.
121 Dkt. 115-21 at 11–14.
122 See, e.g., Clark v. Chappell, No. 14-99005, 2019 WL 4196988, at *21 (holding a trial counsel’s
performance was not deficient for failing to present trauma defendant may have suffered in utero
where trial counsel investigated and made a substantial presentation of evidence of the defendant’s
childhood, his abuse, and the resulting effects of both on his mental and psychological
development). Like the petitioner in Clark, McGuire argues that Counsel was deficient for failing
to run down and present every lead. However, the Clark Court declined to adopt a standard that
would require an exhaustive investigation and presentation.
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and not from failure to achieve desired results.123 McGuire has not alleged that Counsel failed to
perform reasonable research efforts and the record does not indicate objectively unreasonable
investigation. Therefore, McGuire has failed to demonstrate Counsel’s conduct was objectively
unreasonable under Strickland.124 Accordingly, McGuire is not entitled to relief on this ground.
McGuire has not shown that he was denied adequate representation as guaranteed under
the Sixth Amendment. Accordingly, he is not entitled to relief under § 2255 on the grounds
asserted in the Motion.
V. 	CERTIFICATE OF APPEALABILITY
A certificate of appealability (“COA”) is required to appeal a petition brought under 28
U.S.C. § 2255.125 Under the Federal Rules Governing Section 2255 Cases, “[t]he district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
123 Clark v. Chappell, No. 14-99005, 2019 WL 4196988, at *23 (9th Cir. Sept. 5, 2019) (holding
“deficient performance turns not on whether [trial counsel] could have done more but on whether
his conduct was deficient according to professional “standards in effect at the time of [petitioner’s]
trial.”); Earp v. Cullen, 623 F.3d 1065, 1074 (9th Cir. 2010) (quoting Strickland, 466 U.S. at 689)
(noting “it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was unreasonable.”); Allerdice v. Ryan,
395 F. App’x 449, 451 (9th Cir. 2010) (holding that an unsuccessful defense did not constitute
ineffective assistance).
124 Even if Counsel raised the case cited by McGuire, United States v. Tank, his objection would
have failed. Tank held that a district court may group offenses punishable under § 2G2.1. 200 F.3d
at 632. Tank, however, does not require district courts to group sexual exploitation offenses. Here,
McGuire’s PSR did not suggest that offenses like McGuire’s could never be grouped; rather the
PSR stated that, based on the facts of the case, McGuire’s “counts cannot be considered to
represent essentially one composite harm” and that grouping was inappropriate. Dkt. 42 at 36.
Therefore, Tank is inapposite here, and McGuire did not suffer any prejudice from Counsel’s
failure to raise it.
125 28 U.S.C. § 2253(c)(1)(B); United States v. Asrar, 116 F.3d 1268, 1269 (9th Cir. 1997).
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applicant.”126 Where a petitioner makes “a substantial showing of the denial of a constitutional
right,” a COA should be issued.127 This standard requires that the petitioner “demonstrate that the
issues are debatable among jurists of reason; that a court could resolve the issues in a different
manner; or that the questions are adequate to deserve encouragement to proceed further.”128
McGuire’s petition does not meet this standard. McGuire’s petition is without merit, and his factual
contentions are contradicted by the record before the Court. Accordingly, the Court declines to
issue a certificate of appealability in this action.
VI. 	CONCLUSION
For the forgoing reasons, McGuire’s Motion to Vacate at docket 78 is DENIED.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 15 day of October, 2019.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
126 Rules Governing § 2255 Proceedings, Rule 11(a).
127 28 U.S.C. § 2253(c)(2).
128 United States v. Greene, No. 3:09-CR-00053-1-TMB, 2015 WL 13670726, at *1 (D. Alaska
Apr. 14, 2015) (quoting Muth v. Fondren, 676 F.3d 815, 822–23 (9th Cir. 2012)).
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