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United States v. Berkowitz

United States District Court, N.D. Illinois, Eastern Division

May 29, 2015



VIRGINIA M. KENDALL, District Judge.

Petitioner Marvin Berkowitz moves this Court for collateral relief from his 2011 conviction for tax fraud seeking both a hearing and the ability to be present at any status hearings that this Court might hold regarding his petition. Because his petition is untimely, this Court denies his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [1]. Accordingly, his request for an evidentiary hearing [18] is also denied.


On February 17, 2009, a federal grand jury indicted Marvin Berkowitz for leading a conspiracy in which dozens of individuals submitted thousands of fraudulent federal and state income tax returns using identities of federal inmates, resulting in over $20 million in claimed IRS refunds and over $15 million in claimed state refunds. On January 14, 2011, Berkowitz pled guilty to two counts of a superseding indictment. This Court sentenced Berkowitz to 220 months in prison and restitution in excess of $10 million. On August 24, 2011, judgment was entered. Berkowitz did not appeal. He now asks this Court to vacate, set aside, or correct his sentence.


I. Timeliness

Berkowitz had one year to collaterally challenge his conviction. See 28 U.S.C. § 2255(f). The limitation period runs from the latest of: "(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f)(1-4). In this case, Berkowitz was sentenced on August 24, 2011. He had fourteen days from the entry of judgment, or until September 7, 2011, to file a notice of appeal but did not do so. Fed. R. App. P. 4(b)(1)(A)(i) (requiring defendant to file notice of appeal within fourteen days of entry of judgment). Under (f)(1), Berkowitz's judgment of conviction became final-and the limitation period for his 2255 petition began to run-upon the expiration of the deadline to appeal on September 7, 2011. See Clarke v. United States, 703 F.3d 1098, 1100 (7th Cir. 2013) (sentence final upon expiration of deadline to file notice of appeal). Berkowitz then had one year, or until September 7, 2012, to file his 2255 petition, but did not do so. Instead, he waited until September 20, 2013 to file this petition: more than a year after it was due.

A petitioner who fails to file his collateral attack within the one-year period defined by subsection (f)(1) may not bring such petition unless there was some governmental impediment to his timely making the motion; the facts supporting the collateral attack were not timely discoverable despite the exercise of due diligence; there now exists a newly-recognized constitutional right that is retroactively applicable to cases on collateral review; or there exists some other "extraordinary circumstances far beyond the litigant's control" to warrant equitable tolling. See 28 U.S.C. § 2255(f)(2-4); Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010); United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). Berkowitz sets forth no grounds for relief from the untimely filing of his claims challenging restitution and ineffective assistance of counsel and those two claims are dismissed as untimely. He does, however, argue that his first claim, challenging his 220-month sentence as an "unlawful enhancement, " (Dkt. No. 3, p. 6), is saved under subsection (f)(3) because such claim is based on a right that was not recognized by the Supreme Court until it decided Alleyne on June 17, 2013.[1] See Alleyne v. United States, 133 S.Ct. 2151 (2013).

Preliminarily, the Court notes that this claim fails because Apprendi and Alleyne do not apply in this case. Berkowitz was not sentenced for any charges carrying mandatory minimums and, contrary to Berkowitz's argument, his sentence was within the advisory guideline range set by law, stated in his plea agreement, and explained by this Court at both his change of plea and sentencing hearings. See United States v. Hernandez, 2013 WL 4804323, at *5 (7th Cir. 2013) (finding "no Alleyne error" where sentencing court's drug quantity calculation "did not affect the statutory mandatory minimum that [defendant] faced, " and instructing that, "[a]s Guidelines ranges are only advisory, the Fifth and Sixth Amendment requirements do not apply").

Moreover, even if Apprendi and Alleyne did apply, subsection (f)(3) would not apply because Alleyne should not be retroactively applied to cases on collateral review. See Simpson v. United States, 721 U.S. 875, 876 (7th Cir. 2013) (observing Supreme Court unlikely to declare Alleyne retroactively applicable); see also, e.g., Hernandez v. United States, 51 F.Supp. 3d 745, 756 (N.D. Ill. 2014); United States v. Partee, 2014 WL 584874, at *5 (N.D. Ill. 2014). Because Berkowitz provides no other grounds for excusing his claim regarding sentencing, this claim is also dismissed as untimely. However, as only the Supreme Court can make the final declaration of retroactivity, this Court will proceed to the merits of Berkowitz's sentencing claim. See id. (citing Dodd v. United States, 545 U.S. 353 (2005); Tyler v. Cain, 533 U.S. 656 (2001)).

II. Merits

A. Sentencing

Even if Berkowitz's first claim were not time barred, it fails on the merits because this Court did not err in the standard of review it applied during sentencing. While true that generally a jury must find the facts "triggering a statutory minimum" beyond a reasonable doubt, where- as here-the defendant enters a plea of guilty and admits to the facts relevant to the sentencing guidelines calculation, the district court does not need to make a finding of those facts beyond a reasonable doubt. United States v. Ramirez, 528 F.Appx. 678, 679 (7th Cir. 2013) (district court not required to make findings of drug quantity beyond reasonable doubt where defendant pled guilty and admitted to quantity) (citing Alleyne, 133 S.Ct. 2151; United States v. Rutley, 2012 WL 1950408, at *2 (7th Cir. 2012) ("As we have said many times, ... Apprendi does not require that guidelines issues be submitted to the jury because the guidelines are advisory."); United States v. Collins, 272 F.3d 984, 987-88 (7th Cir. 2001) (defendant waived right to jury determination of drug quantity by stipulating to amount of crack cocaine involved in case); United States v. Warneke, 310 F.3d 542, 550 (7th Cir. 2002); United States v. Yancy, 2013 WL 3985011, at *4 (6th Cir. 2013) (explaining that Alleyne did not change rule that, when government seeks statutory sentencing enhancement, defendant's guilty plea and admissions ...

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