UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 16-7356

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL BRIAN DUNKEL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, District

Judge. (1:13-cr-00220-GBL-1; 1:15-cv-00397-GBL)

Submitted: March 27, 2017 Decided: April 19, 2017

Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Richard Klugh, LAW OFFICE OF RICHARD C. KLUGH, Miami, Florida, 

for Appellant. Ryan Scott Faulconer, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Michael Brian Dunkel appeals the district court’s order 

denying relief on his 28 U.S.C. § 2255 (2012) motion. The order

is not appealable unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) 

(2012). A certificate of appealability will not issue absent “a 

substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2) (2012). When the district

court denies relief on the merits, a prisoner satisfies

this standard by demonstrating that reasonable jurists would

find that the district court’s assessment of the

constitutional claims is debatable or wrong. Slack v.

McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003). When the district court

denies relief on procedural grounds, the prisoner must

demonstrate both that the dispositive procedural ruling is

debatable, and that the motion states a debatable claim of

the denial of a constitutional right. Slack, 529 U.S. at 484-

85.

Dunkel seeks a certificate of appealability to challenge 

his conviction following a guilty plea under 18 U.S.C. § 1031 

(2012), and to argue that his trial counsel provided 

constitutionally deficient assistance by failing to properly 

advise him about § 1031, failing to inform him that his guilty 
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plea would require him to register as a sex offender, 

stipulating to a loss figure unsupported by the evidence, and 

failing to object to the Government’s introduction of two 

victim-impact witnesses. Section 1031 prohibits schemes to 

defraud the United States in any procurement of services or any 

contract, subcontract, or other form of federal assistance. To 

invoke § 1031, the value of federal assistance must be $1 

million or more.

Dunkel argues that his conduct does not satisfy the $1 

million jurisdictional requirement of § 1031 because it requires 

a single $1 million prime contract or subcontract and his scheme 

did not involve such a contract. Dunkel has conceded that he 

procedurally defaulted on his § 1031 claim by failing to raise 

it on direct review. He may therefore raise the claim in this 

postconviction proceeding only if he can establish actual 

innocence or cause and prejudice. See Bousley v. United States, 

523 U.S. 614, 622 (1998). Actual innocence requires a showing 

that “it is more likely than not that no reasonable juror would 

have found petitioner guilty beyond a reasonable doubt.” Schlup 

v. Delo, 513 U.S. 298, 327 (1995). “The existence of cause for 

a procedural default must turn on something external to the 

defense, such as . . . a denial of effective assistance of 

counsel.” United States v. Mikalajunas, 186 F.3d 490, 493 (4th 

Cir. 1999) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)).
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We conclude that Dunkel cannot establish actual innocence. 

Dunkel stipulated in his plea agreement that he had posed as an 

employee of Company B, which received contracting preferences 

from the Small Business Administration, to take advantage of 

those preferences when bidding on NASA contracts. He further 

agreed that the scheme was “all in relation to a procurement for 

services valued at more than $1,000,000, including but not 

limited to [Contract A86B].” By that admission, Dunkel’s 

conduct fell within the scope of § 1031.

Even absent Dunkel’s stipulations, his argument that § 1031 

requires a single $1 million prime contract or subcontract 

fails. Section 1031 is not limited to prime contracts; by its 

terms, it applies to the procurement of services and “other 

form[s] of Federal assistance” worth $1 million or more. 18 

U.S.C. § 1031. Moreover, Dunkel has not shown that the 

Government did not rely on a single contract worth $1 million.

Even if the Government aggregated several contracts, however, we 

have recognized that § 1031 should not be read to insulate

“pervasive fraud on a multi-million dollar defense project . . . 

if it were perpetrated in multiple separate subcontracts, each 

involving less than the jurisdictional amount.” United States 

v. Brooks, 111 F.3d 365, 369 (4th Cir. 1997). We therefore 

conclude that Dunkel has not established actual innocence. We 

reject his request for a hearing on actual innocence because, 
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contrary to Dunkel’s contention, the circumstances of United 

States v. Bousley do not apply here. See 523 U.S. at 623.

We also conclude that Dunkel has failed to make a showing 

of cause and prejudice to overcome his procedural default. 

Dunkel argues that cause and prejudice exists because his 

attorney provided ineffective assistance by failing to raise his 

§ 1031 arguments.

A claim of ineffective assistance of counsel requires a 

defendant to show: (1) “that counsel’s performance was 

deficient,” and (2) “that the deficient performance prejudiced 

the defense.” Strickland v. Washington, 466 U.S. 668, 687 

(1984). A defendant proves deficient performance by showing 

that “counsel’s representation fell below an objective standard 

of reasonableness.” Id. at 688-89. To prove prejudice if the 

defendant entered 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.’” Hooper v Garraghty, 845 F.2d 471, 475 (4th 

Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

Because Dunkel’s arguments about § 1031 lack merit, he 

cannot show that his counsel acted unreasonably. Accordingly, 

Dunkel cannot overcome the procedural default of his § 1031

claim and both that claim and his ineffective assistance claim 

based on § 1031 fail.
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Dunkel also appeals the district court’s denial of three of 

his other ineffective assistance of counsel claims. First, 

Dunkel argues that his counsel should have advised him that his 

conviction would require him to register under the Sex Offender 

Registration and Notification Act (SORNA), 42 U.S.C. § 16913 

(2012). However, the “requirements of [SORNA] apply to all sex 

offenders, including sex offenders convicted of the offense for 

which registration is required prior to the enactment of that 

Act.” 28 C.F.R. § 72.3. Because SORNA retroactively applied to 

Dunkel before his plea and conviction, the plea did not trigger 

SORNA registration. Thus, Dunkel’s counsel did not act 

unreasonably when he advised Dunkel about the plea without 

discussing SORNA. Moreover, because the registration 

requirement would have applied to Dunkel regardless of a 

conviction, counsel’s failure to advise Dunkel about SORNA did 

not prejudice Dunkel.

Second, Dunkel argues that his counsel provided ineffective 

assistance by advising him to stipulate to a loss figure under 

U.S. Sentencing Guidelines Manual § 2B1.1 (2016) despite a lack 

of evidence to support it. In the plea agreement, Dunkel agreed 

that he and Company B gained at least $2.9 million and that his

gain could be used as the loss figure for sentencing. Gain can 

serve as a proxy for loss where calculating loss would be 

difficult. U.S. Sentencing Commission, Loss Primer 
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§ 2B1.1(b)(1) (citing United States v. Vrdolyak, 593 F.3d 676, 

681 (7th Cir. 2010) (reversing sentencing judge’s refusal to 

consider gain as proxy for loss where a “probable” but difficult 

to calculate loss existed)). Here, calculating the loss would 

have been difficult because the parties could not have 

sufficiently determined the loss experienced by the company that 

would have contracted with NASA absent Dunkel’s fraud. Thus, 

the parties appropriately agreed to determine how much Dunkel 

gained from his fraud rather than how much an unknown company 

lost from that fraud. The parties then determined the gain 

based on Dunkel’s admission that he gained at least $2.9 million 

from his scheme. Thus, we conclude that Dunkel’s counsel did 

not provide deficient performance by advising Dunkel to 

stipulate to the loss figure in the plea agreement. We further 

conclude that the stipulation did not prejudice Dunkel, who 

would have been subject to the same method of loss calculation 

if he had been convicted without the plea agreement.

Third, Dunkel argues that his counsel provided ineffective 

assistance by failing to object when the prosecution introduced 

additional evidence of loss at sentencing by calling two 

witnesses to testify about the impact of the fraud on the 

government. According to Dunkel, calling the witnesses to 

testify breached the plea agreement by circumscribing the agreed 

to loss figure. The prosecution, however, did not breach the 
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plea agreement because it did not use the additional evidence to

advocate for a greater enhancement under USSG § 2B1.1. The plea 

agreement also permitted the parties to make other arguments 

about sentencing at the hearing. Thus, counsel did not perform 

unreasonably, and Dunkel cannot establish ineffective assistance 

of counsel.

We have independently reviewed the record and conclude

that Dunkel has not made the requisite showing to appeal the 

denial of his § 2255 motion. Accordingly, we deny a

certificate of appealability and dismiss the appeal. We

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before this 

court and argument would not aid the decisional process.

DISMISSED