U.S. v. Poitra
| Decision Date | 21 December 2004 |
| Docket Number | No. C4-02-58.,No. A1-04-128.,C4-02-58.,A1-04-128. |
| Citation | 359 F.Supp.2d 837 |
| Parties | UNITED STATES of America, Plaintiff, v. Raymond A. POITRA, Defendant. Raymond A. Poitra, Petitioner, v. United States of America, Respondent. |
| Court | U.S. District Court — District of North Dakota |
David L. Peterson, U.S. Attorney's Office, Bismarck, ND, for Plaintiff.
Jeff L. Nehring, Nehring Law Office, Williston, ND, for Defendant.
ORDER GRANTING DEFENDANT'S PETITION FOR HABEAS CORPUS RELIEF
Before the Court is Raymond A. Poitra's pro se Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. The motion was filed on October 21, 2004. On October 24, 2004, the Court reviewed the motion and ordered the Government to file a response. On November 16, 2004, the United States filed a response requesting that the Court deny Poitra's motion for post-conviction relief. Poitra submitted a reply brief on November 29, 2004. For the reasons set forth below, the Court grants Poitra's motion in part.
The defendant, Raymond Poitra, was charged in a seven-count Indictment with various offenses. Counts One and Two of the Indictment charged Poitra with embezzlement and theft in excess of $226,000 and $89,440 respectively from an Indian tribal organization in violation of 18 U.S.C. § 1163 and 18 U.S.C. § 2. Count Three charged Poitra with embezzlement and theft in excess of $296,000 in violation of 18 U.S.C § 666(a)(1)(A). Counts Four, Five, and Six charged Poitra with money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i). Count Seven charged Poitra with conspiracy to launder money in violation of 18 U.S.C. § 1956(h). The Indictment also contained a forfeiture allegation which sought forfeiture of money, bank accounts, real and personal property, and life insurance policies.
On February 10, 2003, Poitra pled guilty to all seven counts. The parties agreed that Poitra's sentence would be calculated according to the November 2001 United States Sentencing Commission Guidelines Manual. See Plea Agreement ¶ 10. The Government contemplated an adjusted offense level of 26 based upon a base offense level of 6 under U.S.S.G § 2B1.1(a); a 14-level enhancement under U.S.S.G. § 2B1.1(b)(1)(H) for the loss involved in the offense being more than $400,000; a two-level enhancement under U.S.S.G. 3B1.1(c) for leadership role; a two-level enhancement under U.S.S.G. § 3B1.3 for abusing a position of public trust; and a two-level enhancement under U.S.S.G. § 2B1.1(b)(8)(c) for use of sophisticated means such as fictitious entities. Poitra stipulated to the base offense level of 6 and all upward adjustments except for the enhancement under U.S.S.G. § 2B1.1(b)(8)(c) for use of sophisticated means. See Plea Agreement ¶ 13. The Government agreed to recommend a three-level downward departure for "acceptance of responsibility" under U.S.S.G. § 3E.1.1(a) and (b)(2). This would yield a total adjusted offense level of 23 if Poitra had a Criminal History Category I, or 21 if the Court found that U.S.S.G. § 2B1.1(b)(8)(c) (sophisticated means) did not apply. The contemplated result was a sentence range of 46-57 months for an offense level 23 if Poitra fell within Criminal History Category I, and 37-46 months if the offense level was 21. See Plea Agreement ¶ 14.
In the Plea Agreement, Poitra specifically waived his right to appeal the sentence and waived his right to contest his conviction or sentence in any post-conviction proceeding. See Plea Agreement ¶ 23. However, Poitra retained the right to appeal his sentence in the event the Court departed from the Sentencing Guideline range.
The Presentence Investigation Report ("PSR") prepared by the probation officer calculated Poitra's sentence using the November 2002 United States Sentencing Commission Guidelines Manual rather than the November 2001 Sentencing Guidelines. The PSR established an offense level of 26 for the theft/embezzlement charges (Counts One-Three). The PSR set forth the calculated offense level for the money laundering charges which were not calculated in the Plea Agreement. The probation officer arrived at an adjusted offense level of 28 on the money laundering charges based upon a base offense level of 22 under U.S.S.G. § 2S1.1(a); a two-level enhancement under U.S.S.G. § 2S1.1(b)(2)(B) because Poitra was convicted under 18 U.S.C. § 1956; a two-level enhancement under U.S.S.G. § 3B1.1 for leadership role; and a two-level enhancement under U.S.S.G. § 3B1.3 for abusing a position of public trust. Using U.S.S.G. § 3D1.2 and U.S.S.G § 3D1.3, the combined adjusted offense level for the seven counts was 28. A three-level downward departure was calculated for "acceptance of responsibility" under U.S.S.G. § 3E1.1(a) and (b)(2), yielding a total offense level of 25. With a Criminal History Category I, this resulted in a guideline range of 57-71 months.
On May 5, 2003, Poitra was sentenced to a term of 57 months which was at the low end of the Sentencing Guideline range. Poitra was also ordered to pay restitution in the amount of $577,397.
On May 14, 2003, Poitra filed a Notice of Appeal with the Eighth Circuit Court of Appeals. The Government filed a motion to dismiss the appeal based on Poitra' waiver of appeal rights. Poitra's counsel filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and requested leave to withdraw. Subsequently, Poitra filed a pro se brief with the Eighth Circuit. On May 24, 2004, the Eighth Circuit granted the Government's motion to dismiss and enforced Poitra's waiver of his appeal rights. See United States v. Poitra, 97 Fed.Appx. 73, 2004 WL 1146137 (8th Cir.2004) (per curiam).
On September 20, 2004, Poitra filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence. Poitra contends his sentence violates the Sixth Amendment citing the recent Supreme Court opinion of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the ex post facto clause of the Constitution, and ineffective assistance of counsel.
Poitra first contends that Blakely v. Washington requires that his sentence be vacated because it was based on federal Sentencing Guideline enhancements which are not supported by facts found by a jury beyond a reasonable doubt, in violation of his Sixth Amendment right to a jury trial. In Blakely, the Supreme Court invalidated an upward departure under the State of Washington's sentencing guidelines using the rule expressed in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed maximum must be submitted to a jury, and proved beyond a reasonable doubt." The Supreme Court struck down Washington's sentencing guidelines and held that the sentence imposed was improper because the facts supporting the departure "were neither admitted by the petitioner nor found by a jury." Blakely, ___ U.S. at ___, 124 S.Ct. at 2537.1 The Court will address the issue of whether the Blakely opinion operates in favor of Poitra.
This Court is bound to apply the precedent of the United States Supreme Court and the Eighth Circuit. The doctrine of stare decisis demands that the Court not lightly cast aside past decisions. See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).
The United States Supreme Court laid out the rationale behind the doctrine of stare decisis:
[T]he desirability that the law furnish a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise; the importance of furthering fair and expeditious adjudication by eliminating the need to relitigate every relevant proposition in every case; and the necessity of maintaining public faith in the judiciary as a source of impersonal and reasoned judgments.
Moragne, 398 U.S. 375, 403, 90 S.Ct. 1772, 26 L.Ed.2d 339.
The Supreme Court made it clear in Blakely that it was not invalidating the federal Sentencing Guidelines. 124 S.Ct. 2531, 2538 n. 9. In what has become a famous and oft-quoted footnote, Justice Scalia wrote "[t]he Federal Guidelines are not before us, and we express no opinion on them." Id. Likewise, in Apprendi, the Supreme Court did not alter the Sentencing Guidelines beyond its ruling in the case. 530 U.S. 466, 497, n. 21, 120 S.Ct. 2348, 147 L.Ed.2d 435 ) (citing Edwards v. United States, 523 U.S. 511, 515, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998)).
Despite Justice Scalia's footnote and deflection of what many maintain is the real issue, federal and state courts are daily weighing in on the "havoc" the Blakely decision has created. See ___ U.S. ___, ___, 124 S.Ct. 2531, 2549, 159 L.Ed.2d 403 (2004) () It is clear the "havoc" envisioned and feared by Justice O'Connor has occurred. There is currently considerable uncertainty among the federal circuit courts and district courts as to whether Blakely applies to the federal Sentencing Guidelines.
Prior case law reveals that the Supreme Court has consistently upheld the Sentencing Guidelines against close scrutiny and constitutional attack. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989); Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995); United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997); Edwards v. United States, 523...
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