United States District Court, S.D. Indiana, Indianapolis Division
RICK D. SNOW, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
Jane Magnus-Stinson, Chief Judge
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.
The § 2255 Motion
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.
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.
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.
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
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
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.
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 ...