United States District Court, D. Minnesota
Benjamin F. Langner, Assistant United States Attorney, for
Roberta Barnes, pro se defendant.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE
R. TUNHEIM Chief Judge United States District Court
February 13, 2017, Defendant Roberta Barnes filed a motion
under 28 U.S.C. § 2255 seeking to modify her sentence,
arguing that the Court improperly enhanced her base offense
level at the time of sentencing. Because the claim is neither
factually nor legally supported, the Court will deny the
§ 2255 motion.
December 15, 2014, Defendant Roberta Barnes pled guilty to
one count of mail fraud in violation of 18 U.S.C. §
1341. (Ct. Mins. - Criminal, Dec. 15, 2014, Docket No. 12;
Felony Information at 9-10, July 10, 2014, Docket No. 1.) On
August 18, 2016, the probation department issued a
presentence investigation report (“PSR”)
indicating that Barnes's offense caused a loss exceeding
$250, 000 but less than $550, 000, and recommending a
twelve-level increase to her base offense level pursuant to
U.S. Sentencing Guidelines Manual (the
“Guidelines”) § 2B1.1(b)(1)(G) (U.S.
Sentencing Comm'n 2015). (Revised PSR ¶ 42, Aug. 18,
2016, Docket No. 40.)
August 24, 2016, the Court held a sentencing hearing, at
which defense counsel did not object to the PSR. (Sentencing
Tr. at 3:5-7, Feb. 28, 2017, Docket No. 60). The Court then
adopted the PSR's factual finding that Barnes's
offense caused a loss exceeding $250, 000 but less than $550,
000 and thus applied the twelve-level enhancement to her base
offense level. (Id. at 3:11-17; Revised PSR ¶
Court sentenced Barnes to twelve months and one day of
incarceration - a downward variance from the Guidelines range
of twenty-one to twenty-seven months. (Sentencing Tr. at
3:21-22, 15:13-15; see also Sentencing J., Aug. 28,
2016, Docket No. 49.) Barnes did not file a direct appeal. On
February 13, 2017, the Court amended the sentencing judgment
to specify the total restitution amount of $484, 220. (Am.
Sentencing J. at 1, 5, Feb. 13, 2017, Docket No.
February 13, 2017, Barnes filed a pro se motion to
vacate, set aside, or correct her sentence pursuant to §
2255, in which she asserts that the Court should not have
applied the twelve-level enhancement to her base offense
level at sentencing or entered judgment for the specified
amount of restitution because the government did not prove
the total loss amount by the preponderance of the evidence to
a jury. (See Pro Se Mot. to Vacate at 1, 3, 6, Feb.
13, 2017, Docket No. 55.)
2255(a) permits a prisoner to move the court that sentenced
her to “vacate, set aside or correct the
sentence” 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.” Such relief “is reserved for
transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and, if uncorrected, would result in a complete
miscarriage of justice.” Walking Eagle v. United
States, 742 F.3d 1079, 1081-82 (8th Cir.
2014) (quoting United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996)).
avers the Court improperly enhanced her base offense level
because the government did not prove to a jury that the
offense caused a loss ...