Weinberger v. U.S.A.

• Decision Date: 23 January 2001
• Docket Number: No. 99-4553,99-4553
• Citation: 268 F.3d 346
• Parties: (6th Cir. 2001) Barrett N. Weinberger, Petitioner-Appellant, v. United States of America, Respondent-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 346

268 F.3d 346 (6th Cir. 2001)

Barrett N. Weinberger, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

No. 99-4553

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: January 23, 2001

Decided and Filed: October 5, 2001

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 99-00116. Sandra S. Beckwith, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Barrett N. Weinberger (argued and briefed), Cincinnati, Ohio, pro se.

Christopher K. Barnes (argued and briefed), ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.

Before: BOGGS and MOORE, Circuit Judges; and COHN, Senior District Judge.^*

BOGGS, J., delivered the opinion of the court. COHN, D. J. (pp. 25-28), delivered a separate concurring opinion. MOORE, J. (pp. 364-67), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOGGS, Circuit Judge.

Petitioner-appellant, Barrett N. Weinberger, a disbarred lawyer acting pro se, appeals a decision of the district court denying his motion to vacate his sentence under 28 U.S.C. 2255. For the following reasons, we affirm in part and reverse in part.

I

In 1989, Weinberger began doing legal work for Dorette K. Fleischmann; her daughter, Joan Fleischmann Tobin; and, after Dorette's death, the Dorette K. Fleischmann estate. From April 1990 through December 1994, Weinberger, without his clients' knowledge and consent, fraudulently diverted over $1 million from his clients' funds to his own personal use. Weinberger also evaded federal income taxes on the money he embezzled from his clients.

On October 1, 1997, Weinberger was indicted by a federal grand jury in the Southern District of Ohio on a thirteen-count indictment. Counts 1 and 3 charged Weinberger with mail fraud, in violation of 18 U.S.C. 1341. Counts 2 and 4 charged Weinberger with wire fraud, in violation of 18 U.S.C. 1343. Counts 5 through 8 charged Weinberger with interstate transportation of money taken by fraud or interstate transportation of money in execution of fraud, in violation of 18 U.S.C. 2314. Counts 9 through 13 charged Weinberger with tax evasion, in violation of 26 U.S.C. 7201. The indictment alleged that between April 1990 and December 1994, Weinberger embezzled approximately $1,140,000 from his clients. In addition, Weinberger failed to pay income taxes totaling $370,624 on the embezzled funds.

On February 6, 1998, Weinberger entered into a plea agreement. Weinberger pleaded guilty to Counts 1, 6, and 12 of the indictment, the first two counts charging mail fraud and interstate transportation of money in execution of fraud and the third charging tax evasion relating to Weinberger's 1993 federal income tax return. The remaining counts were dismissed. The plea agreement provided that Weinberger would cooperate with the government and the court, pursuant to 18 U.S.C. 3663A and 3664, in the recovery, return, and restitution of any monies acquired through Weinberger's scheme to defraud. Paragraphs 8 and 9 of the plea agreement set forth the joint understanding of Weinberger and the government regarding the calculation of Weinberger's total offense level under the United States Sentencing Guidelines.

At Weinberger's sentencing on June 29, 1998, Weinberger's counsel objected to the application of the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. 3663A, which went into effect on April 24, 1996, after Weinberger's offense was completed. The district court overruled the objection as moot on the basis that the court was applying the Victim and Witness Protection Act (VWPA), 18 U.S.C. 3663, which was in effect in 1994, in ordering Weinberger to pay full restitution to the victims and to the IRS. Weinberger's counsel did not object to the offense level calculation, specifically, the issue of grouping the fraud and tax counts pursuant to the plea agreement. Weinberger's total offense level was 20 and his criminal history category was I, resulting in a sentencing range of 33-41 months. The district court sentenced Weinberger to 41 months of imprisonment, followed by three years of supervised release. In addition, the court ordered Weinberger to pay $370,624 in restitution to the IRS as a special condition of supervised release, and to pay $1,285,243.25 to the fraud victims immediately. Assuming that payment would not be made immediately, the district court ordered that Weinberger make restitution payments through the Inmate Financial Responsibility Program of the Bureau of Prisons, and thereafter, according to an installment plan developed by Weinberger and his probation officer. Weinberger's counsel did not object to the amount of the restitution payment to the IRS, nor did he object to the district court's order regarding installment restitution payments.

Weinberger's counsel did not file a direct appeal regarding Weinberger's conviction and sentence. On February 19, 1999, Weinberger filed a pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. 2255. Weinberger's motion was not directed at the question of his guilt, but at a variety of sentencing issues. The district court denied Weinberger's motion on October 21, 1999. Weinberger filed a timely notice of appeal on December 16, 1999 in forma pauperis. On January 31, 2000, the district court issued a certificate of appealability, certifying four issues for appellate review.

II

This court reviews denials of petitions under 28 U.S.C. 2255 de novo while examining the district court's factual findings for clear error. See Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994). When reviewing the district court's application of the United States Sentencing Guidelines, this court reviews its factual findings for clear error and its legal conclusions de novo. See United States v. Rutana, 18 F.3d 363, 365 (6th Cir. 1994). The district court's decision to refuse to group offenses pursuant to USSG 3D1.2 is a legal determination that is reviewed de novo. See United States v. Williams, 154 F.3d 655, 656 (6th Cir. 1998). With regard to orders of restitution, this court reviews the district court's order of restitution for abuse of discretion, but reviews the district court's application of a statute de novo. See United States v. Blanchard, 9 F.3d 22, 24 (6th Cir. 1993).

III

Under 28 U.S.C. 2255, "[A] prisoner in custody under sentence of a [federal] court . . . claiming the right to be released . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence." A motion brought under 2255 must allege one of three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid. See United States v. Addonizio, 442 U.S. 178, 185-86 (1979). Sentencing challenges generally cannot be made for the first time in a post-conviction 2255 motion. See Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996). Normally, sentencing challenges must be made on direct appeal or they are waived. See United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994).

Weinberger argues that the four sentencing rulings forming the basis for his motion were not challenged at the time of his sentencing and/or on direct appeal as a result of the ineffective assistance of his trial counsel. The Supreme Court and this court have held that challenges that cannot otherwise be reviewed for the first time on a 2255 motion can be reviewed as part of a successful claim that counsel provided ineffective assistance under the standard set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984). See United States v. Frady, 456 U.S. 152, 167-68 (1982); Grant, 72 F.3d at 506; Ratliff v. United States, 999 F.2d 1023, 1026 (6th Cir. 1993).

Weinberger presents four claims on appeal, challenging: (1) the calculation of his offense level for sentencing; (2) the restitution order to his fraud victims; (3) the restitution order to the IRS; and (4) and the method for scheduling his restitution payments.¹ Although Weinberger's 2255 motion to the district court was based on ineffective assistance of counsel, he only applied this theory explicitly to his first and fourth claims. Weinberger did not state the theory of ineffective assistance of counsel to support his second and third claims. Since Weinberger did not present a proper basis for bringing these claims in his 2255 motion, the district court rejected them.

On appeal, Weinberger applies the theory of ineffective assistance of counsel to all four of his claims. In general, "[i]ssues not presented to the district court but raised for the first time on appeal are not properly before the court." Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993). This case, however, is one of those "exceptional cases" when the rule preventing issues from being raised for the first time on appeal would result in a "plain miscarriage of justice." Ibid. In light of the circumstances of this case, including the fact that Weinberger is proceeding pro se, we conclude that Weinberger can extend the issue of ineffective assistance of counsel, already raised below on two of his claims, to his second and third claims relating to his restitution orders to his fraud victims and the IRS.

To establish ineffective assistance of counsel, Weinberger must demonstrate "that counsel's performance was deficient and that the deficient performance was prejudicial." Ratliff, 999 F.2d at 1026. In order to establish prejudice, Weinberger must show a reasonable probability that, but for counsel's errors, Weinberger's sentence would have been different. See Strickland, 466 U.S. at 694.

The government does not contest that Weinberger's trial counsel was deficient by not challenging the portions of Weinberger's sentence being appealed here, either at the time of...