United States District Court, D. Minnesota
JOAN N. ERICKSEN, District Judge.
Defendant Barbara Lynnae Puro pled guilty to conspiracy to commit wire fraud. The Court sentenced her to a within-guidelines term of 60 months imprisonment to be followed by three years of supervised release and ordered her to pay nearly $6 million in mandatory restitution to her victims. Puro did not appeal.
The matter is now before the Court on Puro's motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. ECF No. 79. For the reasons discussed below, the motion is denied.
Puro was indicted in September of 2011 on one count of conspiracy to commit wire fraud under 18 U.S.C. § 371 and twelve counts of mortgage fraud through the use of interstate wires under 18 U.S.C. § 1343. According to the Indictment, Puro was a licensed real estate agent who participated in a scheme with several co-conspirators to fraudulently obtain mortgages on a number of single-family homes in the Twin Cities area; after closing on the homes, they diverted the lenders' money through various companies back to themselves.
Throughout her pretrial proceedings, Puro was represented by a CJA panel attorney. However, shortly before trial was scheduled to begin in February of 2012, Puro retained a new attorney, Eric Newmark. Shortly thereafter, Puro appeared with Newmark for a change of plea hearing during which she pled guilty to the conspiracy charge, which by statute carried a maximum penalty of 60 months imprisonment. No written plea agreement was filed, and the Government's attorney informed the Court that "the only agreement... is she's going to plead to Count 1. The remaining charges will be dismissed, which effects [sic] obviously the statutory maximum, and everything else is subject to argument at an evidentiary hearing as such." Transcript of Plea Hearing at 6, ECF No. 53. Puro and Newmark agreed with that characterization of the parties' oral plea agreement.
The probation officer subsequently prepared a Pre-Sentence Investigation Report ("PSI") and calculated the sentencing guideline range to be 87-108 months imprisonment, well above the statutory maximum of 60 months for the conspiracy offense. In his pre-sentencing filings, Newmark objected to the amount of restitution listed in the PSI and the enhancements that had been applied for the amount of loss caused by Puro's conduct, the number of victims, and the use of sophisticated means; he requested an evidentiary hearing on those issues. Defendant's Position on Sentencing, ECF No. 62.
Sentencing was held in August of 2012. At the outset of the hearing, Newmark and Puro withdrew all objections to the PSI in exchange for the Government's recommendation of an additional point deduction for acceptance of responsibility, which the Court accepted. Then, after determining the applicable guidelines range to be 60 months and considering the statutory sentencing factors, the Court sentenced Puro to a term of 60 months imprisonment with three years of supervised release and ordered mandatory restitution.
Puro did not file a direct appeal. In May of 2013, she filed pro se the § 2255 motion that is currently before the Court. ECF No. 79. In her motion, Puro seeks to vacate or set aside her sentence on four grounds:
(1) "the exact criminal misconduct that I am guilty of" was never proven because "[c]ounsel waived my right to an evidentiary hearing, " resulting in an overstatement of her role in the scheme, the amount of loss attributable to her, and the amount of restitution;
(2) her sentence was "more harsh than the co-conspirators in my indictment, " as "5 african americans in my case" were given lower sentences despite having felonies on their records;
(3) the sentencing guidelines were miscalculated, specifically because she did not warrant a two-level enhancement for abusing a position of trust, the number of victims was never proven, and she did not use sophisticated means; and
(4) the gross receipts were never proven and thus that guidelines enhancement was in error; "the court failed to consider economic circumstances prior to ordering restitution"; and the sentence should have been reduced for "proffer arraingments" because she "spent hours helping the government and agreed to testify against the co conspirators 2 years prior to my indicement."
Id. at 4, 5, 7, 8. In addition, Puro asserts in her motion that she did not pursue any of these grounds on a direct appeal because "[m]y attorney did not advise me of rights to appeal when I contacted him, he said I was not represented by him for any appeal process." Id. at 4.
The various grounds for relief that Puro asserts in her motion can be divided into three categories: (1) claims of legal error in the restitution order; (2) claims of legal error in calculating the sentencing guidelines range and considering the statutory sentencing factors; and (3) constitutional claims of ineffective assistance of counsel.
By its terms, 28 U.S.C. § 2255 provides a mechanism for a defendant in federal custody to seek post-conviction relief on the grounds 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(a).
For the reasons discussed below, none of Puro's claims entitle her to the relief she seeks under § 2255.
I. Challenges to restitution order.
First, as the Court indicated in its Order of December 13, 2013, ECF No. 91, Puro's claims regarding errors in the restitution order are not cognizable in this collateral proceeding. Because the federal habeas statute plainly affords relief only to a "prisoner in custody... claiming the right to be released, " "a federal prisoner cannot challenge the restitution portion of ...