The opinion of the court was delivered by: David O. Carter United States District Judge
ORDER DENYING DEFENDANT MICHAEL MCDONNELL'S MOTION FOR CORRECTION OF SENTENCE 28 U.S.C. § 2255
Before the Court is Defendant Michael McDonnell ("Mr. McDonnell")'s Motion ("Motion") for Correction of Sentence Pursuant to 28 U.S.C. § 2255 (Docket 2). The Court has considered the moving, opposing, and replying papers, as well as the supplemental briefing submitted, and hereby DENIES the Motion.
Mr. McDonnell was convicted in a jury trial on October 20, 2005 of various counts related to his participation in a scheme to improperly convert housing units to condominiums and obtain title insurance for the condominiums. The condominiums were then sold to the public. Mr. McDonnell was convicted of counts including Wire Fraud, Bank Fraud, and, relevant for this Motion, Honest Services Fraud. This Court sentenced Mr. McDonnell to a term of 78 months, based on a finding of an Adjusted Offense Level of 28, which, in turn, was determined by using the Base Offense Level for Honest Services Fraud (10) and an 18 level increase based on the Specific Offense Characteristics. The resulting sentence was based on an Adjusting Offense Level of 28, which provided a guideline range of 78-97 months.
Mr. McDonnell appealed his conviction and sentence to the Ninth Circuit Court of Appeals, which, on May 13, 2008 affirmed his conviction. The Court of Appeals also vacated Mr. McDonnell's sentence and remanded it to this Court for re-sentencing. Following the Ninth Circuit's ruling, the government reached a plea agreement with Mr. McDonnell to reduce the Specific Offense Characteristics to a 16 level increase and to leave the Base Offense Level at 10 for an Adjusted Offense Level of 26. This Adjusted Offense Level provided for a guideline sentence of 63-78 months. The parties subsequently agreed upon a sentence of 68 months. That stipulation included a waiver through which Mr. McDonnell "also agree[d] to give up any right to bring a post-conviction collateral attack on the conviction or sentence, except a post-conviction collateral attack based on a claim of ineffective assistance of counsel." Parties' Sentencing Stipulation, at 3-4.
28 U.S.C. § 2255 permits federal prisoners to file motions to vacate, set aside, or correct a sentence on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Where the petitioner does not allege lack of jurisdiction or constitutional error, relief under Section 2255 is inappropriate unless the alleged error resulted in a "complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure." Hamilton v. United States, 67 F.3d 761, 763-64 (9th Cir. 1995).
Mr. McDonnell brings the present Motion in light of the recent Supreme Court decision of Skilling v. United States, in which the Court held that a conviction for Honest Services Fraud must be based on an underlying offense involving bribery or kickbacks. __ U.S. __, 130 S. Ct. 2896 (2010); United States v. Pelisamen, No. 10-10022, 2011 WL 1378640 (9th Cir. Apr. 13, 2011). The decision further clarified that applying 18 U.S.C. § 1346 to allow a conviction for Honest Services Fraud that did not involve bribery or kickbacks would bean unconstitutional due process violation. Skilling, 130 S. Ct. at 2928.
Mr. McDonnell brings the present Motion--filed within one year of the Supreme Court's issuance of the Skilling decision--and argues that the Skilling decision warrants a sentence adjustment to eliminate the Base Offense Level for Honest Services Fraud, thereby reducing the sentencing guideline range from 63-78 months to 41-51 months. See Motion, 3.
The government raises three main objections to Mr. McDonnell's Motion: that Mr. McDonnell has waived his right to bring this Motion; that the Motion is procedurally barred; and that the Motion fails on the merits. The Court addresses each of these arguments in turn.
The government argues that pursuant to its stipulation with Mr. McDonnell, Mr. McDonnell waived his right to bring any collateral appeals other than challenges based on ineffective assistance of counsel.
Mr. McDonnell has not waived his right to this appeal; it would be unconscionable for this Court to find a waiver of a right that did not exist when the waiver occurred. In considering whether to adopt the stipulation with the government, Mr. McDonnell no doubt assessed the platter of potential ...