Altenberg v. United States

1

DAVID ALTENBERG, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Nos. 2:21-cr-00058-NT, 2:23-cv-00398-NT

United States District Court, D. Maine

May 13, 2024

RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

JOHN C. NIVISON, U.S. MAGISTRATE JUDGE

Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. (Motion, ECF No. 88.) Following a guilty plea, Petitioner was convicted of wire fraud, money laundering, transfer of property to prevent seizure, and aggravated identity theft; the Court sentenced Petitioner to 120 months in prison. (Judgment, ECF No. 75.)

Petitioner claims that his aggravated identity theft conviction and sentence must be vacated based on the United States Supreme Court decision in Dubin v. United States, 599 U.S 110 (2023). The Government requests dismissal. (Response, ECF No. 100.)

Following a review of the record and after consideration of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request and dismiss Petitioner's motion.

Factual Background and Procedural History

Petitioner worked as a trading analyst at a specialty investment advisory firm. (Third Revised Presentence Investigation Report (PSR) ¶¶ 5-6, ECF No. 68.) In September 2020, a director at the firm noticed an unexpected $350,000 transaction. (Id. ¶ 6.) An investigation revealed over one hundred unauthorized transfers totaling nearly $2.8 million from three clients to bank accounts owned by Petitioner and his wife. (Id. ¶ 7-11, 15.) Petitioner executed the transfers by forging authorizations from the manager or trustee and made the authorizations look like genuine instructions from the clients. (Id. ¶ 10.) On at least one occasion Petitioner sent an email to another employee requesting the transfer of $24,500, and to demonstrate the necessary authority to transfer the funds, Petitioner included a forged email from the director purporting to authorize the transfer the director had not written the email or authorized the use of his name or email address. (Id.)

In October 2020, the Government alleged that Petitioner had committed four counts of wire fraud. (Complaint, ECF No. 3.) In May 2021, the Government charged Petitioner with one count of wire fraud in violation of 18 U.S.C. § 1343, seven counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i) and 1957(a), one count of transfer of property to prevent a seizure in violation of 18 U.S.C. § 2232(a), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). (Information, ECF No. 25.)^[1] In June 2021, Petitioner pled guilty to all counts. (Guilty Plea, ECF No. 36.)

At sentencing, the Court initially calculated a guideline range of 151 to 188 months for counts 1 through 8, 60 months on count 9, and 24 months on count 10 (aggravated identify theft) to be served consecutively to the other sentences because the governing statute provides for a mandatory consecutive sentence. (PSR ¶¶ 34, 44, 61-62; Sentencing Transcript at 25-26, ECF No. 99.) Based on a three-level downward variance for pleading guilty during the COVID-19 pandemic, the Court effectively reduced the guideline range for counts 1 through 8 to 108 to 135 months. (Sentencing Transcript at 27.) The Court imposed a sentence of 96 months on counts 1 through 8, 60 months on count 9 to be served concurrently, and 24 months on count 10 to be served consecutively, for a total of 120 months in prison. (Sentencing Transcript at 28-29; Judgment at 2.) Petitioner did not file an appeal.

In June 2023, the Supreme Court issued its decision in Dubin v. United States, 599 U.S. 110 (2023), construing the aggravated identity theft statute that supported the consecutive twenty-four-month portion of Petitioner's sentence. Petitioner then filed the section 2255 motion.

Discussion

A. Legal Standards

A person may move to vacate his or her sentence on one of four different grounds: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) that the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

“[P]ro se habeas petitions normally should be construed liberally in petitioner's favor.” United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The burden is on the section 2255 petitioner to establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). When “a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing.” United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).

A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). “[A] defendant's failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence.” Berthoff, 308 F.3d at 127-28. Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010). The First Circuit has recognized that “federal courts have the authority to consider procedural default sua sponte.” Rosenthal v. O'Brien, 713 F.3d 676, 683 (1st Cir. 2013) (citing Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997)); see also Daniels v. United States, 532 U.S. 374, 382-83 (2001) (recognizing that “procedural default rules developed in the habeas corpus context apply in § 2255 cases”) (citing Frady, 456 U.S. at 167-68).

An allegation of ineffective assistance of counsel can excuse a procedural default if the petitioner demonstrates that counsel's representation “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). The petitioner must also demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. A district court reviewing a claim of ineffective assistance of counsel need not address both prongs of the Strickland test because a failure to meet either prong will undermine the claim. Id. at 697. If a petitioner's “claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail.” Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per curiam).

Under the law of the case doctrine, “issues disposed of in a prior appeal will not be reviewed again by way of a 28 U.S.C. § 2255 motion.” Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1994) (internal modifications and quotation marks omitted); see also Elwell v. United States, 95 F.3d 1146, 1996 WL 516138 at *5 (1st Cir. 1996) (holding that a petitioner “is not entitled on collateral review to relitigate issues raised on direct appeal, absent an intervening change in the law”); White v. United States, 371 F.3d 900, 902 (7th Cir. 2004) (collecting cases and explaining limited exceptions).

“Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted. An evidentiary hearing ‘is not necessary when a [§] 2255 petition (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.'” Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (citation omitted) (quoting DiCarlo, 575 F.2d at 954 (quotation marks omitted)).

Summary dismissal of a motion is permitted when the allegations are “‘vague, conclusory, or palpably incredible,'” even “‘if the record does not conclusively and expressly belie [the] claim.'” David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). A court can reasonably require a petitioner to supply the court with salient details of the claim prior to permitting discovery or a hearing. Id. (holding that “the district court did not abuse its discretion in refusing to license a fishing expedition”).

B. Dubin Claim

The federal identity fraud statute makes it a crime to knowingly produce, transfer, possess, or traffic in false or unauthorized identification documents or authentication features. 18 U.S.C. § 1028(a). The punishment is a maximum penalty of five or fifteen years in prison depending on the nature of the crime, and there are enhancements for terrorism-related conduct, drug-related conduct, and prior convictions. Id. § 1028(b). The aggravated identity theft statute makes it a crime to knowingly transfer, possess, or “use,” without lawful authority, a means of identification of another person “during or in relation to” an enumerated offense including wire fraud. 18 U.S.C. § 1028A(a)(1), (c)(5). A “means of identification” is defined as “any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual....” Id. § 1028(d)(7). In general, the penalty is a mandatory two-year sentence...