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Snow v. United States

United States District Court, S.D. Indiana, Indianapolis Division

March 21, 2018

RICK D. SNOW, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          Hon. Jane Magnus-Stinson, Chief Judge

         For the reasons explained in this Entry, the motion of Rick D. Snow for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. The § 2255 Motion

         Background

         On February 14, 2012, Mr. Snow was charged in a twelve-count multi-defendant Superseding Indictment in the Southern District of Indiana. United States v. Snow, 1:11-cr-0042-JMS-DML-3, Crim. Case, dkt. 217. Count 1 charged Mr. Snow and others with conspiracy to commit wire fraud and securities fraud, in violation of 18 U.S.C. § 371. Counts 2 through 11 charged Mr. Snow and others with wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. Count 12 charged Mr. Snow and others with securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff(a); Title 17, Code of Federal Regulations, Section 240.10b-5; and 18 U.S.C. § 2.

         On June 20, 2012, a jury found Mr. Snow guilty of Counts 1, 4, 6, 7, and 12. Crim. Case, dkt. 354. On November 30, 2012, the Court sentenced Mr. Snow to 60 months' imprisonment for Count 1, concurrent with a sentence of 120 months' imprisonment per count, concurrent for Counts 4, 6, 7, and 12. Crim. Case, dkt. 445. Supervised released of 2 years after release was imposed per count, concurrent. Id. Mr. Snow was also ordered to pay the mandatory $500 special assessment fee and $202, 830, 082.27 in restitution that is joint and several with other defendants. Id. The Court entered judgment of conviction on December 11, 2012. Crim. Case, dkt. 452. An amended judgment was filed on December 14, 2012, amending restitution matters. Crim. Case, dkt. 462, dkt. 464.

         On December 19, 2012, Mr. Snow filed a notice of appeal of his conviction and sentence. See United States v. Durham, et al., 766 F.3d 672 (7th Cir. 2014). Mr. Snow challenged the sufficiency of the wiretap application; argued that the district court erroneously refused to give a proposed theory-of-defense jury instruction on the securities fraud count; claimed prosecutor misconduct during the rebuttal closing argument; and challenged several sentencing issues and the restitution order. Id.

         On September 4, 2014, the Court of Appeals affirmed Mr. Snow's conviction and sentence in all respects. The Court of Appeals held that 1) the affidavit supporting the wiretap application satisfied the necessity requirement; 2) there was no right to the proposed jury instruction; 3) the prosecutor did not engage in misconduct; 4) the district court's refusal to consider sentences from other districts was not procedural error; 5) sufficient evidence supported the calculation of actual loss at sentencing; and 6) sufficient evidence supported the calculation of intended loss at sentencing. Id.

         On October 28, 2016, Mr. Snow filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255. The United States responded and Mr. Snow has replied. The action is ripe for resolution.

         Discussion

         Mr. Snow raises a single claim. He asserts that he should be resentenced pursuant to Amendment 794 of the Sentencing Guidelines. Amendment 794 became effective November 1, 2015, almost three years after Mr. Snow was convicted. Amendment 794 amended the commentary and notes to U.S.S.G. § 3B1.2 regarding the mitigating role reduction.

         Mr. Snow argues that he is entitled to having the Court sentence him “with the appropriate consideration of his minor role.” Dkt. 2, p. 4. He contends that “[t]he Sentencing Court seems to struggle with the final result for Snow stating ‘...your sentence-I am sorry….'” Id. (quoting Crim. Case, Sentencing Transcript, dkt. 481, p. 187). Mr. Snow has read something into the Court's statement that was not there. The Court was explaining to Mr. Snow his right to appeal when she stated the following:

Sir, you also have the right to appeal your conviction, and if you wish to take an appeal you have to file a notice of appeal and your sentence - - I am sorry, and if you wish to take an appeal you have to file a notice of appeal ...

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