USA v. Gregory Podlucky

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: MCKEE, JORDAN and RESTREPO, Circuit Judges. Total Pages: 2. DLD-260

Case: 17-1569

Document: 003112644662

Page: 1

ALD-260

Date Filed: 06/07/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1569
___________
UNITED STATES OF AMERICA
v.
GREGORY J. PODLUCKY,
Appellant
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Nos. 2:09-cr-000278-001, 2:09-cr-000279-001,
and 2:11-cr-00037-001)
District Judge: Honorable Alan N. Bloch
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 25, 2017
Before: MCKEE, JORDAN and RESTREPO, Circuit Judges
(Opinion filed: June 7, 2017)
_________
OPINION*
_________

PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 17-1569

Document: 003112644662

Page: 2

Date Filed: 06/07/2017

In October 2011, after he pleaded guilty to tax evasion and other federal crimes,
Gregory J. Podlucky was sentenced to 20 years of imprisonment. In February 2017,
Podlucky filed a motion arguing that he never received a downward adjustment under
U.S.S.G. § 3E1.1(a) (“If the defendant clearly demonstrates acceptance of responsibility
for his offense, decrease the offense level by 2 levels.”). The premise of the motion was
factually false. Cf. DC Crim. No. 2:09-cr-000278-001, ECF 36 at ¶¶ 6, 32, 55-59 (Final
PSI Report); ECF 43 (order adopting the PSI except as to loss amount). And the motion
was otherwise without merit because Podlucky’s plea agreement capped his maximum
sentencing exposure well below any potentially applicable Guidelines range. See ECF 44
at 7 (Podlucky: “the advisory range should not be considered (because of the 20 year
cap)”). Essentially for those reasons, the District Court denied Podlucky’s motion. This
appeal followed. We will summarily affirm the order of the District Court because
Podlucky’s motion was procedurally improper and the appeal presents no substantial
question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.1

1

A motion under 28 U.S.C. § 2255 is the exclusive means to collaterally attack a federal
conviction or sentence. Podlucky, as part of his plea agreement, waived his right to file
either a direct appeal or a motion under § 2255. Podlucky’s past efforts to do what his
plea agreement says he may not all have failed. See, e.g., CA No. 15-1501 (order entered
Aug. 14, 2015); CA Nos. 11-4087, 11-4088 & 11-4089 (order entered May 24, 2012).
Here, the District Court was without authority to entertain the merits of Podlucky’s
motion to alter his sentence not just because of the collateral attack waiver, but also
because of the restrictions on successive § 2255 motions. See 28 U.S.C. § 2255(h).
2