United States District Court, D. Montana, Missoula Division
ORDER DENYING MOTIONS
W. Molloy, United States District Judge
Lynn Clough moves to vacate, set aside, or correct her
sentence, pursuant to 28 U.S.C. § 2255. Clough is a
federal prisoner proceeding pro se. She has also filed a
motion seeking reconsideration of her sentence. All pending
matters are addressed. Each of her claims is denied for the
reasons set forth below.
Motion for New Counsel
asks the Court to appoint new counsel to represent her. See
Mot. § 2255 (Doc. 75) at 6 ¶ 6. Counsel may be
appointed at any stage of the proceedings if "the
interests of justice so require." 18 U.S.C. §
3OO6A(a)(2)(B). Under § 3006A, the court must consider
the likelihood of success on the merits, the complexity of
the legal issues involved, and the movant's ability to
articulate her claims pro se. See Weygandt v. Look,
718 F.2d 952, 954 ¶ 2 (9th Cir. 1983) (per curiam).
Counsel must be appointed "when the case is so complex
that due process violations will occur absent the presence of
counsel," Bonin v. Vasquez, 999 F.2d 425,
428-29 (9th Cir. 1993) (discussing Chaney v. Lewis,
801 F.2d 1191, 1196 (9th Cir. 1986) (per curiam)), or when an
evidentiary hearing is required, Rule 8(c), Rules Governing
§ 2254 Cases.
presents coherent motions articulating claims for relief. As
explained, her claims lack merit, but that is not due to any
lack of ability on her part or to the complexity of the task.
There is no reason to suppose her right to due process is in
jeopardy. The circumstances of her case do not warrant the
appointment of counsel. That request is denied.
Motion Under 28 U.S.C. § 2255
the United States is required to respond to Clough's
§ 2255 motion, the Court must determine whether
"the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief." 28 U.S.C. § 2255(b); see also Rule 4(b),
Rules Governing Section 2255 Proceedings for the United
States District Courts. A petitioner "who is able to
state facts showing a real possibility of constitutional
error should survive Rule 4 review." Calderon v.
United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir.
1996) (''Nicolas") (Schroeder, C.J., concurring)
(referring to Rules Governing § 2254 Cases). But the
Court should "eliminate the burden that would be placed
on the respondent by ordering an unnecessary answer."
Advisory Committee Note (1976), Rule 4, Rules Governing
§ 2254 Cases, cited in Advisory Committee Note (1976),
Rule 4, Rules Governing § 2255 Proceedings.
October 26, 2016, a grand jury indicted Clough on one count
of conspiracy to commit wire fraud, a violation of 18 U.S.C.
§ 1349 (Count 1); 109 counts of wire fraud, violations
of 18 U.S.C. § 1343 (Counts 2-110); one count of
conspiracy to commit money laundering, a violation of 18
U.S.C. § 1956(h) (Count 111); one hundred one counts of
money laundering in violation of 18 U.S.C. §
l956(a)(1)(B)(i) (Counts 112-132); two counts of money
laundering in violation of 18 U.S.C. § 1957 (Counts 133
and 134); and three counts of tax evasion, violations of 26
U.S.C. § 7201 (Counts 135-137). Clough retained attorney
Robert Bernhoft for her defense, with Matthew Stevenson as
local counsel. See Order (Doc. 34); Acknowledgment (Doc. 35).
Indictment alleged Clough defrauded her employer by entering
legitimate payees in the company accounting system while
actually writing company checks to herself (Counts 16-21),
third parties (Counts 79-110), her husband
Randy (Counts 22-36), his mowing business
(Counts 37-58), and a contracting firm renovating their home
(Counts 59-78). She also used the company credit card for her
personal expenditures and frequently paid off the card
balance with company checks to avoid detection (Counts 2-15).
Randy assisted her in concealing the scheme by transferring
funds from his mowing business account to his personal
account (Counts 112-132). The pair also withdrew funds from
Randy's personal account to purchase a BMW and to pay the
contracting firm (Count 133-134). As a result of these
machinations, Clough underreported her income in calendar
years 2011, 2012, and 2013 (Counts 135-137).
April 7, 2017, the parties filed a fully executed plea
agreement. Clough agreed to plead guilty to one count of wire
fraud (Count 2), one count of money laundering (Count 133),
and one count of tax evasion (Count 137). She also agreed to
pay restitution to the Internal Revenue Service in the amount
of $189, 737.00 and waived her right to appeal the sentence.
See Plea Agreement (Doc. 49) at 2 ¶ 2, 3 ¶ 4(a),
11-12 ¶ 10. The United States agreed to dismiss the
remaining counts and to move for a two-level or, if
appropriate, a three-level reduction in the offense level for
acceptance of responsibility. See Id. at 2 ¶ 2,
11 ¶ 8. On April 20, 2017, Clough pled guilty in open
court. See Minutes (Doc. 55).
was held on September 14, 2017. The probation office
calculated the guideline application and restitution amount.
On Counts 2 and 133, Clough's base offense level was
seven. She received a 14-level enhancement for a loss amount
between $400, 000 and $1, 000, 000, a two-level
sophisticated-means enhancement, a one-level enhancement for
conviction under 18 U.S.C. § 1957, and a two-level
enhancement abuse of a position of trust. The adjusted
offense level for Counts 2 and 133 was 26. See Presentence
Report ¶¶ 49-57 & Ex. A. On Count 137, the tax
loss fell between $80, 000 and $200, 000, resulting in a base
offense level of 16. Clough received a two-level enhancement
for failure to identify the source of income exceeding $10,
000 from criminal activity. The adjusted offense level was
18. See Id. ¶¶ 58-63. Under the rules for
multiple counts, the combined adjusted offense level was 27.
The United States moved for and obtained a three-level
downward adjustment for acceptance of responsibility. The
total offense level was 24. See Id. ¶¶
64-71. With a criminal history category of I, the advisory
guideline range was 51 to 63 months. See Id. ¶
121. The restitution amount was $590, 244.26 for the fraud
offense and $189, 737.00 for the tax offense. See
Id. ¶ 133 & Ex. B.
sentencing, Clough objected to the two-level enhancements for
sophisticated means and abuse of a position of trust. She
also objected to several aspects of the restitution amount,
including its redundancy with a civil judgment obtained by
her employer in state court. See Presentence Report Addendum
at 1-5; Sentencing Tr. (Doc. 73) at 5:5-10:25. Her objections
were overruled. See Sentencing Tr. at 13:23-18:2. Counsel
argued thoughtfully, articulately, and at length about the
guideline levels for fraud and tax offenses and about
Clough's good characteristics as evidenced by the many