United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
August 21, 2014, petitioner Robert Burton pled guilty to
securities fraud, procuring false tax returns, and
subscribing false tax returns. On December 22, 2014, the
court sentenced him to serve 48 months in custody and 3 years
on Supervised Release, and to pay $159, 500 in restitution
and a $7, 500 fine. See Docket No. 125. Burton has
moved to vacate his conviction under 28 U.S.C. §2255
(Docket No. 137) and for discovery (Docket Nos. 130, 142,
143). He also filed a Motion for a New Trial (Docket No. 156)
and a Motion to Amend the Sentence and Correct the
Restitution Amount (Docket No. 162). Pursuant to Rule 4(b) of
the Rules Governing §2255 Proceedings, the court is
ordering the government to respond to the Motion to Vacate.
the Court is denying the Motion for a New Trial. Rule 33 of
the Federal Rules of Criminal Procedure, which authorizes
motions for a new trial, applies only in cases in which a
trial has taken place. See United States v.
Graciani, 61 F.3d 70, 78 (1st Cir. 1995). Therefore, the
petitioner may not use a motion for New Trial to challenge
his guilty plea. See id.
court is also denying, in part, the Motion to Amend the
Sentence and Correct the Restitution Amount. Petitioner
argues that newly discovered evidence, testimony during a
proceeding before the Securities and Exchange Commission,
shows that at least one of the alleged victims received
reimbursement before petitioner was indicted and, therefore,
that the court overvalued amount of loss when calculating the
petitioner's sentencing guideline range. See
Docket No. 162 at 2. Petitioner requests that the court
revise the sentence and reduce the restitution amount.
does not cite any authority for his request for a reduction
of the restitution amount and pleads no facts that would
entitle him to such a reduction. He did not move for
correction of an arithmetical, technical, or other clear
error within 14 days after his sentencing. See F. R.
Crim. P. 35. Nor does he allege a clerical error or an error
in the record based on an oversight or omission, see
F. R. Crim. P. 36, a material change in [his] economic
circumstances that might affect [his] ability to pay,
see 18 U.S.C. §§3572 (d) (3), 3664(k), or
any other facts that would entitle him to such a reduction.
See 18 U.S.C. §3664(o); United States v.
Petrarca, 2015 WL 458170, *l-2 (D. R. I. 2015);
United States v. Pelletier, 382 F.Supp.2d 160, 161
(D. Me. 2005).
addition, although newly discovered evidence can be grounds
for a Motion to Vacate under 28 U.S.C. §2255, §2255
does not authorize the court to grant relief from a
restitution order. See United States v. Chorney, 453
Fed.App'x 4, 8 (1st Cir. 2011)("[A] §2255
petition...does not provide relief to those 'merely
claiming the right to a reduced restitution order'")
(citing Smullen v. United States, 94 F.3d 20, 25
(1st Cir. 1996)). This is true even if the petitioner is also
challenging a sentence of imprisonment. See Kaminski v.
United States, 339 F.3d 84, 87-88 (2nd Cir.
2003)("Nearly every circuit to consider the issue has
concluded that an order of restitution may not be attacked in
a §2255 petition, even if the petition also alleges
error in the sentence of imprisonment."). Accordingly,
the court is denying the Motion to Amend to the extent that
it requests a reduction of the restitution order.
Motion to Amend also requests a revision of Burton's
sentence of imprisonment and Supervised Release based on the
alleged new evidence of a lower loss amount. In the Motion to
Amend, petitioner cites no authority in support of his
request for a lower sentence on any such ground. However, as
petitioner is pro se, the court liberally construes
the request as a Motion to Amend his §2255 Motion to
Vacate to include a claim that the imposition of a sentence
based on an inaccurate financial loss calculation constituted
a miscarriage of justice. See Erikson v. Pardus, 551
U.S. 89, 94 (2007) ("A document filed pro se is
to be liberally construed."); Barreto-Rivera v.
United States, 887 F.Supp.2d 347, 353 (D.P.R. 2012)
(citing Knight v. United States, 37 F.3d 769 (1st
Cir. 1994))(discussing circumstances in which a
misapplication of the sentencing guidelines constitutes a
ground for relief under 28 U.S.C. §2255); Ajemian v.
United States, 171 F.Supp.3d 206, 215 (S.D.N.Y.
2016)(granting evidentiary hearing on §2255 petition
based on evidence that court applied wrong guideline range at
sentencing because government misrepresented amount of
financial loss resulting from fraud to which defendant pled
of the foregoing, it is hereby ORDERED that:
Pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings, the Clerk of this Court shall serve a copy of
the Motion to Vacate, Set Aside, or Correct Sentence (Docket
No. 137) upon the office of the United States Attorney.
government shall respond within 20 days of the receipt of
this Order. The response shall include a statement notifying
this Court of the existence of any victim or victims as
defined by 18 U.S.C. §3771.
Petitioner's Motion to Amend the Sentence and Correct the
Restitution Amount (Docket No. 162) is DENIED to the extent
that it requests a reduction in the amount of restitution
ordered. However, the government's response shall address
whether petitioner should be allowed to amend his §2255
petition with the claim, described in the motion (Docket No.
162), that newly discovered evidence justifies a reduction in
his sentence of imprisonment or Supervised Release.
Petitioner's Motion to Extend Deadline to File a
Memorandum of Law in Support of his Motion to Vacate (Docket
No. 135) is ALLOWED.
Petitioner's Motion for a New Trial (Docket ...