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Barnickel v. United States

May 9, 1997

DIANE BARNICKEL,

PETITIONER-APPELLANT,

v.

UNITED STATES OF AMERICA,

RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Central District of Illinois.

Nos. 95-1083 & 94-10040 Joe Billy McDade, Judge.

Before MANION, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Argued October 21, 1996

Decided May 9, 1997

After pleading guilty to one count of bank fraud, Diane Barnickel was sentenced to 24 months' imprisonment, four years' supervised release, a fine of $3,000, and restitution in the amount of $52,571.01. She did not take a direct appeal from her conviction or sentence, but approximately three months after the court imposed its sentence she brought the present motion under 28 U.S.C. sec. 2255 to vacate, set aside, or correct her sentence. The district court denied her motion, and we affirm for two independent reasons. First, her challenges to the sentence are neither based on the Constitution nor do they otherwise rise to the level of fundamental error necessary for sec. 2255 relief; and second, her arguments on appeal relate only to the restitution component of her sentence, which is also not cognizable under sec. 2255.

Barnickel undertook her fraudulent scheme while she was working as a bookkeeper for McCormick Contracting, Inc., of Minonk, Illinois. Between May of 1992 and July of 1993, she falsified numerous checks drawn on McCormick's account at the Minonk State Bank and pocketed the money. In order to prevent detection, she altered McCormick's books so that it appeared that her checks were for legitimate company expenses. After her plea of guilty to bank fraud in violation of 18 U.S.C. sec. 1344, the court ordered a presentence report (PSR). Among other things, the PSR set forth the following list of the losses McCormick suffered as a result of Barnickel's fraud:

Checks drawn on Minonk State Bank $41,658.14

Mastercard account 3,216.26

American Express account 7,104.22

Woodford FS, Eureka, IL 118.17

Yordy's True Value Hardware, Minonk 322.12

Furrow's Building Supplies, Bloomington, IL 1,551.26

AT&T ...


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