United States District Court, D. Minnesota
Benjamin F. Langner, Assistant United States Attorney,
Minneapolis, MN, on behalf of Plaintiff.
Thomas Taylor Payne, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Lionel Thomas Taylor Payne's
(“Payne”) Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 [Docket No.
(the “Motion”). Payne argues that the Court
sentenced him under an incorrect Sentencing Guidelines range
because his total Offense Level should have been 20 rather
than 22. For the reasons set forth below, Payne's Motion
December 28, 2015, Payne was charged by Information with wire
fraud, in violation of 18 U.S.C. § 1343. See
Information [Docket No. 1]. He entered a plea of guilty on
January 12, 2016, pursuant to a Plea Agreement. Min. Entry
[Docket No. 6]. In the Plea Agreement, the parties stipulated
to certain Guideline calculations relating to Payne's
total offense level. Plea Agreement [Docket No. 10] ¶ 9.
The stipulated Guideline calculations included a two level
increase to Payne's offense level because the wire fraud
involved the use of sophisticated means, and an additional
two level increase because Payne abused a position of trust
in a manner that significantly facilitated the commission and
concealment of the offense. Id. ¶ 9(c)(3). The
parties further agreed that if Payne's adjusted offense
level was 22 and his criminal history category was I, the
applicable Sentencing Guideline range was 41-51 months
imprisonment. Id. ¶ 9(f).
9, 2016, the probation office issued a Presentence
Investigation Report (“PSR”) [Docket No. 13] that
calculated Payne's total offense level to be 20. PSR at
13-14. The PSR did not apply the two-level enhancement for
abuse of trust. Id. at A.1. The Government objected
to the nonapplication of the abuse of trust enhancement.
20, 2016, Payne was sentenced. At the sentencing hearing, the
Court agreed with the Government that the two-level
enhancement for abuse of trust applied. Statement Reasons
[Docket No. 24] ¶ I (B)(1). As a result, Payne's
total offense level was 22, which resulted in a Sentencing
Guideline range of 41-51 months imprisonment. Id.
¶ III; Plea Agreement ¶ 9(f). Payne was sentenced
to 41 months, the lowest end of the Guideline range.
Sentencing J. [Docket No. 23] at 2.
moves under § 2255 for a sentence reduction, arguing
that the PSR calculated his total offense level to be 20, and
thus the Court should have applied a Guideline range of 33 to
41 months. Payne's motion fails because it does not take
into account the two-level enhancement for abuse of trust
that was applied by the Court at sentencing. Payne does not
address the enhancement for abuse of trust, let alone provide
an argument for why it should not apply. When this
enhancement is added to the offense level calculated in the
PSR, Payne's total offense level is 22. See Plea
Agreement ¶ 9(f). Therefore, Payne was sentenced under
the correct offense level and Guideline range.
CERTIFICATE OF APPEALABILITY
Court will not issue a certificate of appealability. A court
may grant a certificate of appealability only where the
defendant has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2);
Tiedeman v. Benson, 122 F.3d 518, 523 (8th Cir.
1997). To make such a showing, “[t]he petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). The Court finds it unlikely that another court
would decide the issues raised in this Motion differently, or
that any of the issues raised in the Motion would be
debatable among reasonable jurists.