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MARTIN v. U.S.
United States District Court, Central District of Illinois, Springfield Division
December 12, 2001
MICHAEL R. MARTIN, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Richard Mills, U.S. District Judge:
MSI and Michael R. Martin.
The final chapter.
On August 16, 1997, a jury found Petitioner guilty of sixteen counts of
mail fraud (18 U.S.C. § 1341) and guilty of one count of bribery
18 U.S.C. § 666(a)(1)(B)). On June 22, 1998, the Court sentenced
Petitioner to 70 months of imprisonment and ordered him to pay
restitution, along with his co-Defendant, in the amount of $12,300,00.00
to the Illinois Department of Public Aid. On appeal, the United States
Court of Appeals for the Seventh Circuit affirmed Petitioner's
convictions but reversed Petitioner's sentence regarding the amount of
restitution imposed. United States v. Martin, 195 F.3d 961 (7th Cir.
1999), cert. denied 530 U.S. 1263 (2000). Accordingly, the Seventh
Circuit remanded the matter back to this Court to re-calculate the amount
of restitution owed by Petitioner. Id. at 970.
After considering the Seventh Circuit's opinion and the arguments of
the parties, the Court ordered Petitioner to pay restitution in the
amount of $171,768.01. United States v. Martin, 109 F. Supp.2d 970
(C.D.Ill. 2000). Thereafter, the Government, Petitioner, and
co-Defendant filed timely notices of appeal. However, on
January 12, 2001, the Seventh Circuit dismissed the parties' appeals
pursuant to their requests and pursuant to Federal Rule of Appellate
II. PETITIONER'S CLAIMS
Petitioner has now filed the instant petition pursuant to
28 U.S.C. § 2255 asking the Court to vacate, set aside, or correct
his sentence. Therein, Petitioner asserts that his due process rights
were violated during his sentencing hearing. Specifically, Petitioner
argues that his incarceration is constitutionally infirm because his
imprisonment was, and continues to be, based upon an incorrect
determination of the amount of loss at issue in this case, i.e., an
amount of loss which was tied to the amount of restitution originally
imposed but later substantially reduced by the Court upon remand.
Petitioner contends that there is a correlation between the amount of
loss for purposes of calculating a defendant's adjusted offense level
under U.S.S.G. § 2F1.1 and the amount of restitution imposed pursuant
to the Mandatory Victims Restitution Act. 18 U.S.C. § 3663A. Because
the Court substantially reduced the amount of restitution owed by him,
Petitioner claims that the Court should equally reduce the amount of loss
attributable to him which, in turn, would reduce his adjusted offense
level by eight levels, making his applicable sentencing guideline range
30-37 months rather than the 70-87 months as previously found by the
Court. To do otherwise, Petitioner argues, would deny him his due
process right to be sentenced upon reliable information, would be
fundamentally unfair, and would constitute a miscarriage of justice.
III. GOVERNMENT'S ANSWER
The Government argues that Petitioner's petition should be denied for
three reasons. First, the Government asserts that this issue has been
previously decided by the Seventh Circuit and by this Court against
Petitioner. Thus, the Government contends that the Court should reject
Petitioner's claim because there are no changed circumstances which would
require the Court to revisit this issue and because the law of the case
doctrine dictates that result.
Second, the Government argues that the Court should deny Petitioner's
§ 2255 petition because he has failed to establish cause for his
failure to raise the issue at the appropriate time on direct appeal.
Third, the Government claims that Petitioner has failed to establish
prejudice. Accordingly, the Government asks the Court to deny
Petitioner's § 2255 petition.
Upon review of the pleadings and all of the exhibits, the Court
concludes that an evidentiary hearing is not required. Accordingly,
pursuant to Rule 8 of the Rules Governing § 2255 cases, the Court will
dispose of this petition based solely on the parties' submissions.
The Seventh Circuit has explained that "once this court [the Seventh
Circuit] has decided the merits of a ground of appeal, that decision
establishes the law of the case and is binding on a district judge asked
to decide the same issue in a later phase of the same case, unless there
is some good reason for re-examining it." United States v. Mazak,
789 F.2d 580, 581 (7th Cir. 1986); see Arizona v. California, 460 U.S. 605,
618 (1983) (holding that "the [law of the case] doctrine posits that when
a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case."). "The
doctrine, however, allows some flexibility, permitting a court to revisit
an issue if an intervening change in the law, or some other special
circumstance, warrants reexamining the claim."
United States v. Thomas,
11 F.3d 732, 736 (7th Cir. 1993). "It [the law of the case doctrine] will
not be enforced where doing so would produce an injustice." Mazak, 789
F.2d at 581.
In the instant case, the Court finds no good reason to re-examine the
amount of loss calculation. On direct appeal, the Seventh Circuit
affirmed this Court's determination that the amount of loss to the
Illinois Department of Public Aid as a result of Petitioner's illegal
conduct was $12,300,00.00:
Audits conducted after the government began
investigating the defendants revealed thousands of
invalid identifications; the amended contract had cost
the Department an additional $12.9 million over the
original contract price, causing a net loss to the
Department of $12.3 million after offsetting $600,000
that it owed Martin's company for legitimate
The $12.3 million loss that the amended contract was
found to have caused the Department of Public Aid was
a loss intended by Martin and Lowder within the
meaning of the sentencing guidelines and was therefore
the appropriate amount for the judge to consider in
deciding what prison sentence and fine to impose on
each of them.
Martin, 195 F.3d at 965, 967-68. Thus, both this Court and the Seventh
Circuit have found that the amount of loss to the Illinois Department of
Public Aid was $12,300,000.00 within the meaning of U.S.S.G. §
Other than this Court's re-calculation of the amount of restitution
owed by him, Petitioner has not cited any intervening change in the law
since the Court determined the amount of loss at sentencing. Likewise,
Petitioner has not tendered any new evidence with which to convince the
Court that it committed error in calculating the amount of loss at
sentencing. Nor has Petitioner pointed the Court to any special
circumstances which warrant re-examining the amount of loss.
Furthermore, contrary to Petitioner's "primary hypothesis" "an
amount-of-loss calculation for purposes of sentencing does not always
equal such a calculation for restitution. For example, Application Note
7 to § 2F1.1 of the Sentencing Guidelines allows for a loss
calculation based on `intended loss,' whereas 18 U.S.C. § 3663(a)(1)(A)
requires a showing of actual loss for purposes of restitution." United
States v. Germosen, 139 F.3d 120, 130 (2d Cir. 1998); see also United
States v. Carboni, 204 F.3d 39, 47 (2d Cir. 2000) (noting that courts
"must separately analyze loss with respect to the restitution order
because a court's power to order restitution is limited to actual
loss."); but see United States v. Izydore, 167 F.3d 213, 222 n. 5 (5th
Cir. 1999) (noting that "[w]e would ordinarily expect that the
restitution obligation and the amount of loss would be nearly the
same."). The Seventh Circuit recognized this point on direct appeal when
that court explained that the amount of loss determination takes into
account both intended and actual loss while restitution requires "the
existence of a causal connection between the defendant's conduct and the
loss. . . ." Martin, 195 F.3d at 968.
Thus, the Court finds no incongruity between the amount of loss as
found by the Court and the amount of restitution imposed by it in this
case. It is also important to note that the Seventh Circuit reversed and
remanded this case for a re-calculation of the proper amount of
restitution while affirming the Court's determination of the amount of
loss. This action by the Seventh Circuit weighs against Petitioner's
primary hypothesis because that court recognized — at least
that the amount of loss and the amount of
restitution imposed may not be identical in this case.
In short, nothing has changed since sentencing. The Government proved
by a preponderance of the evidence that Petitioner's criminal conduct
(along with his co-Defendants') caused a loss, both actual and intended,
to the Illinois Department of Public Aid in the amount of
$12,300,000.00. The Government also proved by a preponderance of the
evidence a causal relationship between Petitioner's conduct and the loss
to the Illinois Department of Public Aid which the Mandatory Victims
Restitution Act requires him to restore in the amount of $171,768.01.
Martin, 109 F. Supp. 2d at 975. Such is still the case today.
Therefore, because the Court has correctly determined the amount of loss
(and the Seventh Circuit has affirmed this finding) in this case, the
Court cannot say that it would work a manifest injustice nor would it be
a fundamental miscarriage of justice to allow Petitioner's convictions
and sentence to stand. Murray v. Carrier, 477 U.S. 478, 495 (1986).
Finally, Petitioner has raised two additional claims in his reply
brief. Initially, the Court notes that new claims and arguments are not
allowed to be raised in reply briefs. See CDIL-LR 7.1(D)(3)(providing
that replies to responses to summary judgment motions are limited to
matters raised in the response); see also United States v.
Elizalde-Adame, 262 F.3d 637, 640 (7th Cir. 2001) (noting that arguments
raised by criminal defendant for first time in reply brief will
ordinarily not be considered on appeal). Nevertheless, because neither
of Petitioner's claims have merit, the Court will address them briefly.
First, Petitioner asserts that he "can (and if necessary — will)
contend that his sentencing attorney . . . was ineffective for not
pursuing the district court's denial of the issue herein presented." The
Court is not sure when, if not now, Petitioner intends to raise his
ineffective assistance claim. In any event, Petitioner's former counsel
objected to the amount of loss determination (as stated in the
Presentence Investigation Report and found to be correct by the Court)
both at the sentencing hearing and on direct appeal. Therefore,
Petitioner's former counsel cannot be said to have been ineffective for
failing to raise an issue which he did, in fact, raise.
Second, Petitioner contends that he should receive a three level
downward departure in his adjusted offense level pursuant to application
note 3 to U.S.S.G. § 2X1.1 which is made reference to in note 7 to
U.S.S.G. § 2F1.1. However, that guideline provision is inapposite in
the instant case. U.S.S.G. § 2X1.1(a) provides: "If an attempt,
decrease by 3 levels, unless the defendant completed all the acts the
defendant believed necessary for successful completion of the substantive
offense. . . ." (emphasis added). Here, Petitioner completed all of the
acts necessary for the successful completion of the offense of mail
fraud. Therefore, Petitioner is not entitled to a three level downward
departure in his adjusted offense level.
Ergo, Petitioner's motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 (d/e 1) is DENIED.
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