Opinion
Case No. 2:07-cr-179(1).
October 29, 2010
ORDER
This matter is before the Court on Defendant Donald F. Green's Motion under 28 U.S.C. § 2255 for Sentencing Reduction (Doc. 273). Green requests a recalculation of his guideline range because of a mistake in the tax obligation used to determine his guideline range. Green asserts that his tax obligation for the year 2003 is $61,617, rather than the $100,332.97 figure used in the original calculation. Green was sentenced to a term of 36 months; using the new tax liability figure, he alleges that his sentence should be reduced to 30 months. The Government in opposition asserts that Green is not entitled to relief under 28 U.S.C § 2255 because the calculation of Green's sentence under the United States Sentencing Guidelines ("Guidelines") would remain the same even if the Court accepted Green's amended 2003 figure.
Green made the same request in a motion under Rule 35(a) of the Federal Rules of Criminal Procedure (Doc. 266). That motion was denied by the Court because it was untimely (Doc. 270).
To bring a successful collateral attack on a sentence through a § 2255 motion, a defendant must demonstrate that the Court committed a constitutional error, imposed a sentence outside of the statutory limits, or a proceeded under an error of fact or law so fundamental as to render the entire proceeding invalid. United States v. Addonizio, 442 U.S. 178, 186 (U.S. 1979); Ward v. United States, 995 F.2d 1317, 1321 (6th Cir. 1993). The Court must conduct a hearing on the motion "[u]nless the motion and the files and records of the case conclusively show that the [defendant] is entitled to no relief." 28 U.S.C. § 2255(a); see also Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).
Green asserts that after he had been sentenced by this court on February 4, 2009 on the basis of 2003 income tax evasion in the amount of $100,332.97 and 2004 income tax evasion in the amount of $130,043.19, his wife received a notice from the Internal Revenue Service ("IRS") that his unpaid balance for 2003 was actually $61,617.09. Green has attached the notice, dated January 25, 2010. The government claims that an investigation by Special Agent David Gosiewski revealed that the notice Green received from the IRS was generated after Green and his wife filed amended tax returns for 2003 and 2004 after his conviction and sentencing. Ultimately, however, the Court need not resolve which sum is the accurate representation of the amount of taxes that Green evaded in 2003 because, as the Government argues, Green's sentence under the Guidelines is unaffected by the discrepancy.
The Court sentenced Green in accordance with the Guidelines range as calculated in the Final Presentence Investigation Report. At the time, the Adjusted Offense Level for Group 1 (Conspiracy to Commit Wire and Bank Fraud) was determined to be 25; this calculation is not challenged by Green. The Adjusted Offense Level for Group 2 (Income Tax Evasion) was determined to be 20. One level was added to the highest offense level, 25, because the lesser Group was within 5 to 8 levels of Group 1. See Guidelines § 3D1.4(b). The resulting Combined Adjusted Offense Level therefore was 26, which was reduced for Acceptance of Responsibility and Substantial Assistance to the Government; these reductions are not challenged by either party. The only calculations that Green is now challenging are the Adjusted Offense Level for Group 2 and the one-level addition under § 3D1.4(b).
Assuming that Green's tax evasion in 2003 totaled $61,617, his base offense level under § 2T1.1(a)(1) of the Guidelines would be 16, not 14 as he asserts. Adjusted upwards for failing to report the source of the income, Guidelines § 2T1.1(b)(1), as Green concedes is appropriate, Green's Adjusted Offense Level for Group 2 would be 18. Because this is within 5 to 8 levels of his highest offense level, the one-level upward adjustment under § 3D1.4(b) of the Guidelines still applies and yields the same final offense level under which Green was originally sentenced.
Because correcting the error alleged by Green would produce no change in the Guidelines sentence, it cannot be said that this error, if proven, constitutes a miscarriage of justice sufficient to support a successful motion under § 2255. The Court's conclusion that Green is not entitled to relief could not be changed by an evidentiary hearing on the accuracy of the possible figures for the 2003 tax evasion, and Green's motion is therefore DENIED without a hearing.
IT IS SO ORDERED.
Dated: October 29, 2010