United States of America v. CHERRYL WORLEY, AKA Cherryl Ferguson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHERRYL WORLEY, AKA Cherryl
Ferguson,
Defendant - Appellant.
No. 14-16716
D.C. Nos. 4:13-cv-03951-DLJ
4:10-cr-00524-DLJ-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, Senior District Judge, Presiding
Submitted April 13, 2016**
San Francisco, California
Before: O’SCANNLAIN, CLIFTON, and N.R. SMITH, Circuit Judges.
Cherryl Worley appeals the district court’s denial of her 28 U.S.C. § 2255
habeas petition. Worley alleges she received ineffective assistance of counsel when
her attorney failed to challenge a 4-level enhancement for fifty or more victims
FILED
APR 20 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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under U.S.S.G. § 2B1.1(b)(2)(B). We have jurisdiction under 28 U.S.C. § 2253.
We affirm.
We determine whether Worley received ineffective assistance of counsel
using a two-step analysis. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, Worley must show that her attorney’s performance was deficient, falling
below an objective standard of reasonableness. Id. at 687-88. Second, if her
counsel’s performance were deficient, Worley must show that she was prejudiced
as a result of that performance. Id. at 687. The Supreme Court has held that
“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky,
559 U.S. 356, 371 (2010). When determining whether counsel’s performance was
deficient, we apply a “highly deferential” approach, “indulg[ing] a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Applying that presumption,
we must make an effort “to eliminate the distorting effects of hindsight” and to
“evaluate the conduct from counsel’s perspective at the time.” Id. “[T]he relevant
inquiry . . . [is] whether the choices made by defense counsel were reasonable.”
Murray v. Schriro, 745 F.3d 984, 1011 (9th Cir. 2014) (quoting Babbitt v.
Calderon, 151 F.3d 1170, 1173 (9th Cir 1998)).
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1. Worley’s counsel’s performance was not deficient during plea negotiations,
because it was not objectively unreasonable for her counsel to assume (when
negotiating the agreement) that a complete loss calculation would be included in
the Presentence Investigation Report and considered at sentencing. Worley
concedes that the fraudulent scheme from which the charges arose involved fifty-
seven individuals and four corporations. Even though the individual victims were
made whole by the victim corporations, it was probable that the individual victims
could nonetheless be included in the final loss calculation: the individual victims
had likely spent time and money procuring new identifications, and thus had likely
suffered pecuniary harm. See United States v. Armstead, 552 F.3d 769, 782 (9th
Cir. 2009) (“time and money spent procuring new identification and credit cards,
opening new bank accounts, and mending . . . credit” may constitute pecuniary
harm).
Worley’s counsel’s performance also was not deficient at sentencing.
Because the parties had stipulated that the victim enhancement would apply, it was
not necessary for the district court to include a complete loss calculation in its
decision. See United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002)
(“Plea agreements are contractual by nature and are measured by contract law
standards.”). As the district court noted, “[Worley] specifically agreed in
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paragraph 9 of the plea agreement that [the victim enhancement] was appropriate
and that ‘all of the losses . . . and the amount of the loss (and the number of victims
associated with that loss)’ were attributable to her and that the loss calculation
could include losses from more than just the counts to which she was pleading
guilty.” If Worley’s counsel had objected to the victim enhancement, Worley
would have breached the plea agreement and the previously dropped charges
would have been reinstated.
2. Even if Worley’s counsel’s performance were deficient either during plea
negotiations or at sentencing, Worley was not prejudiced as a result. At the time
the plea agreement was being negotiated, Worley was facing 114 separate fraud
and identity theft charges. The government offered to drop all but six of these
charges and agreed to recommend a low-end sentence, even though Worley had a
criminal history category of VI. When considering her habeas petition, the district
court noted that, “given the gravity of [Worley’s] conduct combined with [her]
long history of flouting the authority of the courts as demonstrated by her criminal
history, [Worley] should be fully cognizant of the positive effect her counsel had
on the analysis by the Court of its sentencing options and its ultimate sentencing
determination.” Thus, Worley has failed to establish that “there is a reasonable
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probability that . . . the result of the proceeding would have been different” but for
her counsel’s performance. See Strickland, 466 U.S. at 694.
AFFIRMED.
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