Wells v. United States of America, No. 2:2021cv00602 - Document 14 (W.D. Wash. 2021)
Court Description: ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Nathaniel Wells. Signed by Judge Ricardo S. Martinez. (SB) (cc: Petitioner via USPS)
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Wells v. United States of America Doc. 14 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 1 of 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 NATHANIEL WELLS, 10 11 Petitioner, 12 v. Case No. C21-602RSM ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 13 UNITED STATES OF AMERICA, 14 Respondent. 15 I. 16 17 18 INTRODUCTION Before the Court is Petitioner’s 58-page § 2255 Motion to Vacate, Set Aside, or Correct Sentence. Dkt. #1. Nathaniel Wells challenges the 134-month sentence imposed on him by 19 this Court following his guilty plea for conspiracy to commit bank fraud. Id. at 2; Case No. 20 21 2:16-cr-0007-RSM, Dkts. #230, #232. Petitioner challenges his sentences on ten grounds, 22 detailed below. Dkt. #1. After full consideration of the record, and for the reasons set forth 23 below, the Court DENIES Mr. Wells’s § 2255 Motion.1 24 25 26 27 28 1 Toward the end of his Motion, Mr. Wells suggests re-assignment to a new judge in this case “is advisable.” See Dkt. #1 at 52-54. Mr. Wells has not filed a separate recusal motion as required by Local Civil Rule 3(f). His reasons for recusal (e.g. “Judge Martinez will feel, in these current proceedings, that he has already spent enough time on the case… and therefore he does not need to consider the case anew…”) do not include extrajudicial bias and could be said to apply to any judge considering a § 2255 motion on their own prior criminal case—a common occurrence. The Court would decline to recuse even if these reasons were properly presented. ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 1 Dockets.Justia.com Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 2 of 15 II. 1 BACKGROUND 2 The Court generally agrees with the relevant background facts as set forth by the 3 Government and demonstrated by court records. See Dkt. #11 at 5–14. Mr. Wells does not 4 dispute the vast majority of this procedural background. He mainly disputes details of the 5 6 financial fraud victims’ injuries and whether these injuries satisfied the elements of conspiracy 7 to commit bank fraud. The Court will attempt to focus only on those facts relied on by the 8 Court in reaching its ruling. 9 On January 14, 2016, the Government filed an indictment charging Mr. Wells and two 10 codefendants with Conspiracy to Commit Bank Fraud. Case No. 2:16-cr-0007-RSM, Dkt. #35. 11 12 A superseding indictment was later filed adding a fourth codefendant. Case No. 2:16-cr-0007- 13 RSM, Dkt. #53. On January 6, 2017, Mr. Wells pleaded guilty without the benefit of a plea 14 agreement. Case No. 2:16-cr-0007-RSM, Dkt. #114. 15 In July, August, and September of 2017, a four-day evidentiary hearing was held to 16 determine sentencing guideline enhancements and the amount of restitution owed. Mr. Wells 17 18 submitted a memorandum with several evidentiary and legal arguments. Case No. 2:16-cr- 19 0007-RSM, Dkt. #163. 20 21 Prior to sentencing, Wells moved to withdraw his guilty plea and to dismiss the indictment. Case No. 2:16-cr-0007-RSM, Dkt. #205. 22 23 Sentencing occurred on March 30, 2018. Case No. 2:16-cr-0007-RSM, Dkt. #230. The 24 Court denied Mr. Wells’s motion to withdraw his plea and to dismiss the indictment and denied 25 his motion for reconsideration of its prior Guidelines determinations. Case No. 2:16-cr-0007- 26 RSM, Dkt. #299 at 3–4. The Court restated its written Guidelines calculation—total offense 27 level 32, Criminal History Category VI—yielding a Guidelines range of 210 to 262 months. 28 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 2 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 3 of 15 1 Case No. 2:16-cr-0007-RSM, Dkt. #299 at 3. The Court imposed a 134-month prison sentence, 2 followed by 5 years of supervised release, and ordered $5,816,938.82 in restitution. Case No. 3 2:16-cr-0007-RSM, Dkt. #232 and Dkt. #299 at 22-24. This sentence was based in part on a 4 finding of ten or more victims. The court also imposed a sentence for Wells’s supervision 5 6 revocation: 36 months’ imprisonment with no following supervision. Case No. 2:16-cr-0007- 7 RSM, Dkt. #299 at 26. This sentence was ordered to run concurrently with the sentence in his 8 current criminal case. Id. 9 Mr. Wells appealed his conviction and both sentences. Case No. 2:16-cr-0007-RSM, 10 Dkt. #235. 11 12 The Government later raised an issue with the factual support for the number of victims 13 and moved for a limited remand to resolve this issue, which the Ninth Circuit granted. Case 14 No. 2:16-cr-0007-RSM, Dkt. #314. On remand, new evidence was collected by the 15 Government to support the ten-or-more-victims finding. Case No. 2:16-cr-0007-RSM, Dkt. 16 #334. Mr. Wells objected to this evidence and asked for an evidentiary hearing. Case No. 17 18 2:16-cr-0007-RSM, Dkt. #343. The Court denied Mr. Wells’ request and reaffirmed its ruling 19 about the number of victims enhancement. Case No. 2:16-cr-0007-RSM, Dkt. #347. 20 21 The case went back up on appeal. Mr. Wells’s direct appeal did not raise any issue about the sentence imposed for his supervised release revocation. Regarding his conviction for 22 23 conspiracy to commit bank fraud, he raised the following issues: 24 1. The Court erred by applying the predominance-of-the-evidence and not the clear-and- 25 convincing-evidence standard in determining the Guidelines enhancements for loss 26 amount, relevant conduct, and leadership role; 27 28 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 3 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 4 of 15 1 2 3 4 2. The Court erred in holding that all the losses caused by the conspiracy were attributable to Wells as relevant conduct; 3. The Court erred in holding that Wells qualified for a leadership enhancement; 4. In calculating the loss amount, the Court erred in holding that Wells was liable for all 5 6 7 8 9 losses caused by the conspiracy; 5. In calculating the loss amount under the Guidelines, the Court erred in holding Wells liable for actual and intended losses, not just actual losses; 6. The Court erred in holding that Wells’s crime involved ten or more victims; 10 7. The Court erred in denying his motion to dismiss for lack of subject matter jurisdiction 11 12 13 without holding a hearing to determine whether the payment processors were “financial institutions” withing the meaning of the bank-fraud statute; 14 8. The Court erred in denying Wells’s motion to withdraw his guilty plea; 15 9. The Court erred in holding Wells jointly liable for the entire amount of restitution 16 ordered; and 17 18 19 20 21 10. During the limited remand, the Court erred in reaffirming its ten-or-more victims finding without holding an evidentiary hearing. United States v. Wells, 9th Cir. Case No. 18-30074, Dkts. #10 and #61. The Ninth Circuit rejected these arguments and affirmed Wells’s conviction and sentences. United States v. 22 23 24 Wells, 804 F. App’x 515 (9th Cir. 2020). Mr. Wells filed this instant petition on May 3, 2021. Dkt. #1. He requests an 25 evidentiary hearing to address the merits of his claims, dismissal of the superseding indictment, 26 resentencing, suppression of evidence, and that the Court vacate his guilty plea. Id. at 58. 27 28 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 4 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 5 of 15 III. 1 A. Legal Standard 2 3 4 DISCUSSION A motion under 28 U.S.C. § 2255 permits a federal prisoner in custody to collaterally challenge his sentence on the grounds that it was imposed in violation of the Constitution or 5 6 7 laws of the United States, or that the Court lacked jurisdiction to impose the sentence or that the sentence exceeded the maximum authorized by law. A petitioner seeking relief under Section 2255 must file his motion with the one-year 8 9 statute of limitations set forth in § 2255(f). 10 A claim may not be raised in a Section 2255 motion if the defendant had a full 11 12 opportunity to be heard on the claim during the trial phase and on direct appeal. See Massaro 13 v. United States, 123 S. Ct. 1690, 1693 (2003). Where a defendant fails to raise an issue before 14 the trial court, or presents the claim but then abandons it, and fails to include it on direct appeal, 15 the issue is deemed “defaulted” and may not be raised under Section 2255 except under 16 unusual circumstances. Bousley v. United States, 523 U.S. 614, 622 (1998); see also United 17 18 States v. Braswell, 501 F.3d 1147, 1149 & n.1 (9th Cir. 2007). Unless the petitioner can 19 overcome this procedural default, the Court cannot reach the merits of his claims. See Bousley, 20 523 U.S. at 622. To do so, the petitioner must “show both (1) ‘cause’ excusing his double 21 procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” 22 23 United States v. Frady, 456 U.S. 152, 168 (1982).2 To demonstrate “cause” for procedural 24 default, a defendant generally must show that “some objective factor external to the defense” 25 impeded his adherence to a procedural rule. Murray, 477 U.S. at 488. See also United States v. 26 Skurdal, 341 F.3d 921, 925 (9th Cir. 2003). The Supreme Court has held that “cause” for 27 28 2 Another means by which procedural default may be excused is by establishing actual innocence. See Bousley, 523 U.S. at 622. ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 5 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 6 of 15 1 failure to raise an issue exists “where a constitutional claim is so novel that its legal basis is not 2 reasonably available to counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984). The “prejudice” prong 3 of the test requires demonstrating “not merely that the errors at . . . trial created a possibility of 4 prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire 5 6 7 trial with error of constitutional dimensions.” Frady, 456 at 170. B. Evidentiary Hearing 8 The Court finds that an evidentiary hearing is not required in this case because Mr. 9 Wells’s allegations can be refuted from the record on procedural grounds. See Dkt. #11 at 5 10 (citing 28 U.S.C. §2255(b); Shah v. United States, 878 F.2d 1156, 1161-62 (9th Cir. 1989)). 11 12 13 14 15 C. Analysis There is no dispute that Mr. Wells meets the “custody” requirement of the statute and that this is Motion is timely under § 2255(f). The Court has identified ten grounds/claims for relief raised in this Motion. The 16 Government presents many overlapping arguments for why these claims must be dismissed, not 17 18 all of which need to be discussed. The Government’s central argument for denying relief is 19 because Mr. Wells has not raised many of these issues on appeal—so called procedural 20 default—and because he has failed to demonstrate actual prejudice from the alleged errors due 21 to a central misunderstanding of the elements the Government needed to prove for the charge 22 23 24 25 26 27 28 of conspiracy to commit bank fraud. More specifically, the Government asserts: Except for his ineffective-assistance-of-counsel claim (Claim 4), all of Wells’s current claims are based on evidence that was adduced at the presentencing evidentiary hearing, as well as prior discovery (Claims 1-3, 5-9), or else challenge the legality of the sentence imposed for his supervision revocation (Claim 10). With the exception of Wells’s challenge to the Guidelines burden of proof (Claim 9) and the Guidelines enhancements for loss amount, number of victims, and leadership role (Claim 8 in part), the ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 6 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 7 of 15 remainder of Wells’s current claims—Claims 1-3, 5-7, 8 in part, 10—were not raised on appeal and, except for the enhancement for possessing device-making equipment (Claim 8, in part), were also not raised in this Court prior to entry of judgment. Accordingly, these previously-unraised claims have been procedurally defaulted. See Bousley v. United States, 523 U.S. 614, 622 (1998); United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998). Unless Wells can overcome these procedural defaults, the Court cannot grant relief on these claims. See Bousley, 523 U.S. at 622; United States v. Seng Chen Yong, 926 F.3d 582, 590 (9th Cir. 2019). To do so, Wells must show both “cause” excusing the default and “‘actual prejudice’ resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 168 (1982). He cannot. 1 2 3 4 5 6 7 8 9 10 Dkt. #11 at 17. The Court agrees that Mr. Wells’s claims 1-3, 5-7, 8 in part, and 10 are 11 procedurally defaulted. Whether or not he can show “cause” is tied in with his ineffective 12 assistance claim. The Court will now address whether he can show actual prejudice for any of 13 his claims. 14 15 Mr. Wells pleaded guilty to conspiracy to violate 18 U.S.C. §1344(2), which 16 criminalizes “a scheme or artifice . . . to obtain money, funds, credits, assets, securities, or other 17 property owned by or under the custody of or control of a financial institution, by means of 18 material, false or fraudulent pretenses, representations, or promises.” Case No. 2:16-cr-0007- 19 RSM, Dkt. #272 at 5. A “financial institution” includes an FDIC-insured bank, see 18 U.S.C. 20 21 §20(1), and the indictment listed four such banks affected by the scheme: KeyBank, Green Dot 22 Bank, Sunrise Bank, and JP Morgan Chase. Case No. 2:16-cr-0007-RSM, Dkt. #53. During the 23 change-of-plea hearing, Wells admitted to conspiring to obtain money “from another source” 24 by fraud, and defense counsel speculated that “other source” was “probably the payment 25 26 27 processor, which we understand to be subsidiaries of various banks.” Case No. 2:16-cr-0007RSM, Dkt. #272 at 13-14. 28 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 7 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 8 of 15 1 During the pretrial evidentiary hearing, the evidence showed that the fraudulently 2 obtained funds were not received from payment processors directly; those funds were obtained 3 from FDIC-insured banks that held the payment processors’ settlement accounts. However, 4 with the exception of Key Bank, none of the financial institutions named in the indictment had 5 6 direct losses due to the underlying criminal scheme. The losses were actually born by payment 7 processors or victim-merchants, none of which meet the legal definition of a “financial 8 institution.” Mr. Wells has latched onto this fact to demonstrate actual prejudice and to support 9 his ineffective assistance of counsel claim. 10 The Government explains its reasons for charging Mr. Wells as they did: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wells also misunderstands how the bank-fraud statute works. Wells first insists that the statute requires proof that a bank “owned ‘and’ had custody and control” of the property at issue. [Dkt. #1] at 31-32. This is wrong; the property must be “owned by, or under the custody or control of, a financial institution.” 18 U.S.C. §1344(2) (emphasis added). By its terms, §1344(2) is not limited to bank-owned property; it includes property held as a custodian for a third-party. See also Shaw v. United States, 137 S. Ct. 462, 466 (2016). Wells also seems to believe that the government was required to prove that a false representation was made directly to a FDIC-insured institution. [Dkt. #1] at 30. This too is wrong; it is sufficient if the “false statement is the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control,” even if that false statement is made to a third party. Loughrin v. United States, 573 U.S. 351, 363-64 (2014). And Wells is also wrong to insist that the government was required to prove he “knew the banks” held the money at issue. [Dkt. #1] at 30. Nothing in §1344(2) “demands that a defendant have a specific intent to deceive a bank.” Loughrin, 573 U.S. at 357. The statute only requires that the defendant engage in a scheme to obtain money in a bank’s custody and control by false pretenses; the government is not required to prove the defendant knew the identity of the bank holding the funds. See id. at 355-58. Under a proper reading of the bank fraud statue, there is no problem with the government’s theory of the case. Wells insists that the government was required to prove that fraudulent refunds were funded directly by banks named in the indictment, and ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 8 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 9 of 15 1 2 3 4 5 6 7 8 9 10 11 12 reasons this requires proof that the victim-merchants who were defrauded held accounts at those banks. [Dkt. #1] at 5-7, 26, 30-33. Of course, since Wells was convicted of conspiracy, not substantive bank fraud, the government was not required to prove that anyone was actually defrauded; the agreement to engage in the scheme is the crime. This point aside, and again ignoring that developing proof of the crime was not the point of the evidentiary hearing, Wells is just wrong on this point. If put to its proof, all the government would need to show was that Wells agreed to participate in a scheme involving merchants who used a payment processor whose settlement account was at a named bank, e.g., that Chase Paymentech processed transactions for retailers and held its settlement account at JP Morgan Chase. This is because, given the settlement process attendant with credit/debit/gift cards, the conspirators’ misrepresentations (fraudulently loading cards) naturally induced named financial institutions to pay money from payment-processor settlement accounts in the course of processing fraudulent refunds. [Transcript of evidentiary hearing] 36-40. This is what the hearing evidence showed, and agreeing to engage in this scheme is conspiracy to commit bank fraud. 13 Dkt. #11 at 21–22. 14 15 The Court finds that the Government correctly states the elements of the crime charged 16 and how they were met in this case. A correct reading of the charges and the facts presented to 17 the Court in the evidentiary hearing makes it impossible for Mr. Wells to demonstrate actual 18 prejudice from the alleged constitutional errors in this Motion. Without actual prejudice, Mr. 19 Wells’s claims are properly dismissed, as discussed individually below. 20 21 1. Brady Violation re: Victim-Merchants 22 Mr. Wells first argues that the Government failed to disclose that the victim-merchants 23 who suffered losses in this case did not hold accounts at any banks named in the indictment. 24 Dkt. #1 at 5-15. 25 26 To establish a Brady violation, the defendant must show that the evidence at issue is 27 “favorable to the accused, either because it is exculpatory, or because it is impeaching;” this 28 evidence “must have been suppressed by the State, either willfully or inadvertently;” and the ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 9 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 10 of 15 1 defendant must demonstrate “prejudice” from the non-disclosure. Strickler v. Greene, 527 U.S. 2 263, 281-82 (1999). 3 4 The Government argues that it did not fail to disclose anything because this information was evident from what was produced in discovery. Dkt. #11 at 23. However, as discussed 5 6 above, the Government also argues that the location of the victim-merchants’ accounts was 7 irrelevant to establishing Mr. Wells’s guilt of the crime charged. The Court agrees. Mr. Wells 8 therefore cannot show prejudice. Mr. Wells does not demonstrate any other basis for relief 9 under this claim. 10 2. Government Misconduct at the Grand Jury 11 12 Mr. Wells claims that outrageous governmental misconduct occurred at the grand jury, 13 while also stating that this claim is not a freestanding claim for relief, but rather “turns on what 14 is the appropriate remedy” for his Brady claim. Dkt. #1 at 16, 21. Because there is no valid 15 Brady claim, relief will not be granted under this claim. Mr. Wells also alleges under this claim 16 that the Government committed misconduct by allowing an FBI agent to testify falsely before 17 18 the grand jury that three banks were defrauded. Dkt. #1 at 17–20. The Government argues that 19 the record shows these banks were “induced to turn over money in their custody by false 20 pretenses” and that it is immaterial that they themselves did not suffer losses. Dkt. #11 at 25– 21 26. Again, Mr. Wells’s claim is built on an incorrect reading of the law and is properly 22 23 24 dismissed. 3. Guilty Plea not Supported by Sufficient Facts 25 Wells contends his guilty plea is not supported by legally sufficient evidence. Dkt. #1. 26 at 22-25. This type of claim was waived by Mr. Wells’s guilty plea. See United States v. Cruz- 27 Rivera, 357 F.3d 10, 14 (1st Cir. 2004); Nobles v. Beto, 439 F.2d 1001, 1002 n.1 (5th Cir. 28 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 10 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 11 of 15 1 1971); cf. Brady v. United States, 397 U.S. 742, 757 (1970) (“[a] defendant is not entitled to 2 withdraw his plea merely because he discovers long after the plea has been accepted that his 3 calculus misapprehended the quality of the State’s case”). 4 4. Ineffective Assistance of Counsel 5 6 Mr. Wells argues his guilty plea was unknowing and involuntary due to ineffective 7 assistance of counsel. See Dkt. #1 at 22. Specifically, he claims he “was unaware of the 8 standard required to prove I committed the offense for which I was charged...” Dkt. #1 at 25. 9 He also argues that his counsel was ineffective because he failed to investigate where the 10 victim-merchants actually held their deposit accounts, demonstrating that his counsel “did not 11 12 understand the case.” Id. at 28-29. According to Mr. Wells, had his counsel conducted 13 adequate investigation and research, he would have concluded that none of the victim- 14 merchants held accounts at the banks named in the indictment, and thus that Mr. Wells was 15 innocent of the crime as charged. See id. at 31-37. 16 The standards to be applied to ineffective assistance claims are those defined in 17 18 Strickland v. Washington, 466 U.S. 668 (1984). Such a claim has two components: inadequate 19 performance by counsel, and prejudice resulting from that inadequate performance. To prevail, 20 a defendant first must show that “in light of all the circumstances, the identified acts or 21 omissions were outside the wide range of professionally competent assistance.” Strickland, 22 23 466 U.S. at 690. “This requires showing that counsel made errors so serious that counsel was 24 not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 25 687. However, “[a] fair assessment of attorney performance requires that every effort be made 26 to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s 27 challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 28 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 11 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 12 of 15 1 688 (citation omitted). The presumption is that counsel was competent. Id. Even if the first 2 part of the Strickland test is satisfied, a defendant is not entitled to relief unless he can show 3 prejudice. Id. at 687. Here, Wells “must show that there is a reasonable probability that, but 4 for counsel's errors, he would not have pleaded guilty and would have insisted on going to 5 6 trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985)). 7 For the reasons stated above, Mr. Wells’s analysis of the elements necessary to prove 8 conspiracy to commit bank fraud is incorrect. His claim that counsel allowed him to plead 9 guilty when he was actually innocent of the crime is, for the reasons above, factually and 10 legally wrong. He repeatedly argues that his counsel did not understand the case, see, e.g., Dkt. 11 12 #13 at 2, but has failed to show that his counsel committed any error, and thus he has failed to 13 show that he would not have pleaded guilty or that his counsel otherwise “made errors so 14 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 15 Amendment.” Strickland at 687. 16 5. Actual Innocence 17 18 19 Mr. Wells claims actual innocence, but has misinterpreted the facts and law of this case and thus for the reasons stated above has failed to demonstrate actual innocence. 20 21 6. Constructive Amendment of Indictment from the Presentencing Hearing A constructive amendment occurs when the evidence presented at trial proves “a 22 23 complex set of facts distinctly different from those set forth in the charging instrument’ such 24 that the defendant lacked notice,” or “when the crime charged was substantially altered at trial, 25 so that it was impossible to know whether the grand jury would have indicted for the crime 26 actually proved.” 27 United States v. Lopez, 4 F.4th 706, 727-28 (9th Cir. 2021) (citation omitted). 28 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 12 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 13 of 15 1 2 3 4 Mr. Wells’s claim again rests on the same incorrect understanding of the facts and law. He has failed to demonstrate that his indictment was constructively amended. 7-9. Guideline Enhancements violate Double Jeopardy, Preponderance of the Evidence standard and Enhancements, and Relevant Conduct and 5 6 Guideline Enhancements 7 Mr. Wells claims that the Court based Guidelines sentence enhancements on events that 8 were not part of his crime in violation of the Double Jeopardy Clause. Dkt. #1 at 39, 45-46. 9 Mr. Wells further claims the Court erred in applying the preponderance-of-the-evidence 10 standard, rather than the clear-and-convincing-evidence standard, in determining whether 11 12 various Guidelines enhancements applied. 13 The Government asserts that these claims are foreclosed by Witte v. United States, 515 14 U.S. 389 (1995), which held that where the defendant’s Guidelines range was within the 15 statutory maximum for the crime, the Guidelines relevant conduct provision does not violate 16 the Double Jeopardy Clause, even where the relevant conduct is uncharged crimes. Dkt. #11 at 17 18 28 (citing 515 U.S. at 395-402). The Government points out that the Ninth Circuit rejected the 19 clear-and convincing standard claim on Wells’s direct appeal. Dkt. #11 at 30 (citing Wells, 804 20 F. App’x at 518). The Government cites to, inter alia, United States v. Treadwell, 593 F.3d 21 990, 1001 (9th Cir. 2010) for the proposition that “the rule in the Ninth Circuit is that when a 22 23 defendant is charged with a fraud-based conspiracy, the preponderance-of-the-evidence 24 standard applies even where a Guidelines enhancement—namely loss amount—results in a 25 dramatic increase in the Guidelines range due to the defendant’s being liable not just for the 26 losses he caused, but for all losses caused by the conspiracy.” Id. The Court has reviewed Mr. 27 28 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 13 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 14 of 15 1 Wells’s many arguments about losses charged versus losses presented at sentencing and finds 2 no error in the Court’s prior analysis. 3 4 10. Challenge to 3-year Supervision-Revocation Sentence Mr. Wells also attempts to challenge his 3-year sentence. When Mr. Wells committed 5 6 the offense at issue in Case No. 2:16-cr-0007-RSM, he was on supervised release following a 7 prior conviction for Access Device Fraud, in violation of 18 U.S.C. §1029(a)(1). See Case No. 8 12-cr-0339-RSM, Dkt. #22. The statutory maximum for this offense is 10 years’ imprisonment. 9 18 U.S.C. § 1029(c)(1)(A)(i). Because Mr. Wells’s access-device-fraud conviction is a Class C 10 felony, see 18 U.S.C. § 3559(a)(3), the statutory maximum for Wells’s supervision revocation 11 12 was two years. See 18 U.S.C. §3583(e)(3). The Court, in error, imposed a three-year sentence. 13 Given that the sentencing for the two crimes occurred at one hearing, Mr. Wells understandably 14 challenges these sentences at the same time when he is in fact required to file a separate § 2255 15 Motion. 16 The Government argues that Mr. Wells has in any event procedurally defaulted on this 17 18 claim and that he cannot show actual prejudice because the three-year sentence was ordered to 19 run concurrently with the 134-month sentence, i.e. his overall term of incarceration is 20 unaffected. Dkt. #11 at 34–35. The Ninth Circuit has held that where there is error in a 21 sentence that runs concurrently with a valid sentence of equal or longer length, the defendant’s 22 23 substantial rights are unaffected by the error. See, e.g., United States v. Mitchell, 502 F.3d 931, 24 996-97 (9th Cir. 2007); United States v. Ramos-Godinez, 273 F.3d 820, 825 (9th Cir. 2001). 25 The Court agrees on both points and finds that, because he cannot overcome his procedural 26 default, correction of this sentencing error is not available. Furthermore, Mr. Wells has not 27 demonstrated that this error has extended his release date or otherwise caused prejudice. 28 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 14 Case 2:21-cv-00602-RSM Document 14 Filed 11/04/21 Page 15 of 15 1 D. Certificate of Appealability 2 A petitioner seeking post-conviction relief under § 2255 may appeal this Court’s 3 dismissal of his petition only after obtaining a Certificate of Appealability (“COA”) from a 4 district or circuit judge. A COA may issue only where a petitioner has made “a substantial 5 6 showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(3). A petitioner 7 satisfies this standard “by demonstrating that jurists of reason could disagree with the district 8 court’s resolution of [her] constitutional claims or that jurists could conclude the issues 9 presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 10 537 U.S. 322, 327, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003). The Court finds that the law 11 12 above is clear and there is no basis to issue a COA. IV. 13 14 15 CONCLUSION Having considered Petitioner’s motion, Respondent’s answer thereto, and the remainder of the record, the Court hereby finds and ORDERS: 16 1. Petitioner’s Motion under § 2255 (Dkt. #1) is DENIED. No COA shall be issued. 17 18 19 20 21 2. Petitioner’s Motion for Reconsideration re: Order on Motion for Discovery and Appointment of Counsel, Dkt. #12, is DENIED AS MOOT. 3. This matter is now CLOSED. 4. The Clerk of the Court is directed to forward a copy of this Order to Petitioner and 22 23 24 25 26 27 all counsel of record. DATED this 4th day of November, 2021. A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 28 ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 - 15
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