J. Jamieson v. USA

Filing

PER CURIAM OPINION and JUDGMENT filed: The judgment of the district court denying Jamieson's 2255 motion is AFFIRMED. Decision for publication pursuant to local rule 206. Boyce F. Martin, Jr., Julia Smith Gibbons, and Raymond M. Kethledge, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0305p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 09-4376
v.
>
,
UNITED STATES OF AMERICA,
Respondent-Appellee. N
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
Nos. 02-00707-001; 09-01195—David A. Katz, District Judge.

J. RICHARD JAMIESON,

Petitioner-Appellant,

Argued: December 3, 2010
Decided and Filed: September 6, 2012
Before: MARTIN, GIBBONS, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: James B. Craven III, Durham, North Carolina, for Appellant. Seth D. Uram,
UNITED STATES ATTORNEY’S OFFICE, Toledo, Ohio, for Appellee. ON BRIEF:
James B. Craven III, Durham, North Carolina, for Appellant. Seth D. Uram, UNITED
STATES ATTORNEY’S OFFICE, Toledo, Ohio, for Appellee.
_________________
OPINION
_________________
PER CURIAM. Petitioner–appellant John Richard Jamieson, Jr., filed a motion
to vacate, set aside, or correct a sentence by a person in federal custody under 28 U.S.C.
§ 2255, premised on the June 2, 2008, decisions of the Supreme Court of the United
States, United States v. Santos, 553 U.S. 507 (2008), and Cuellar v. United States,
553 U.S. 550 (2008). The district court denied the motion. On appeal, Jamieson argues:
(1) the district court erred in denying his motion as untimely; (2) the district court erred

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in holding that he had waived his right to file the § 2255 motion; and (3) his convictions
on the money laundering counts should be vacated based on Santos and Cuellar.
We affirm, but our reasoning differs from that of the district court. We hold that
the district court erred in denying Jamieson’s motion as untimely pursuant to
§ 2255(f)(3) but that his claim fails because the predicate offense does not merge to
radically increase the statutory maximum sentence applicable to him.
I.
On January 18, 2002, a federal grand jury indicted John Richard Jamieson, Jr.,
and sixteen co-conspirators, charging Jamieson with conspiracy to defraud insurance
companies and investors in violation of 18 U.S.C. § 371; promotion money laundering
and aiding and abetting in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and 2; international
money laundering in violation of 18 U.S.C. § 1956(a)(2)(B)(i); concealment money
laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i); engaging in monetary
transactions in property derived from specified unlawful activity and aiding and abetting
in violation of 18 U.S.C. § 1957(a), (b)(1), and (b)(2); engaging in monetary transactions
in property derived from specified unlawful activity in violation of 18 U.S.C. § 1957(a),
(b)(1), and (b)(2); and conspiracy to commit money laundering in violation of 18 U.S.C.
§ 1956(h) and (a)(1)(A)(i).
On June 20, 2003, a jury convicted Jamieson.1 On October 31, 2003, he was
sentenced to 240 months’ imprisonment followed by three years of supervised release
and was required to make restitution. Jamieson appealed his conviction and sentence,
and we affirmed his conviction on all counts but remanded for resentencing in
accordance with United States v. Booker, 543 U.S. 220 (2005). United States v.
Jamieson, 427 F.3d 394, 418–19 (6th Cir. 2005).
After our decision in 2003 and prior to his resentencing, Jamieson and the
government entered into a Joint Stipulation for Resentencing (“Joint Stipulation”). The

1

For a summary of the facts underlying Jamieson’s conviction, see United States v. Jamieson,
427 F.3d 394, 399–402 (6th Cir. 2005).

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Joint Stipulation stated: “The Court should sentence the defendant to a term of
imprisonment of 168 months. The parties agree a term of imprisonment of 168 months
is sufficient, but no greater than necessary . . . . ” The Joint Stipulation then stated that
the court should order Jamieson to pay $20,016,498 in restitution to the victim investors
of Liberte Capital Group, Inc./LLC. However, the Joint Stipulation provided that while
imprisoned, Jamieson would not be required to pay restitution at a rate in excess of
20% of his gross prison income. Moreover, the restitution order did not extend to any
amounts up to $500 per month that were credited to Jamieson’s personal account in
prison from outside sources, such as gifts. Nonetheless, any income or assets that
Jamieson earned or acquired that were unrelated to his incarceration were fully subject
to restitution.
The parties recognized that the sentencing factors of the Joint Stipulation were
not “binding on the Court and the Court may, in its discretion, sentence the defendant
to a term of imprisonment less than or greater than 168 months.” Nonetheless, the Joint
Stipulation bound Jamieson in the following manner:
In return for the government’s agreement to the sentencing stipulations
set out above . . . , the defendant waives the right to further appeal his
conviction and sentence on any ground, including any appellate right
conferred under Title 18, United States Code Section 3742. The
defendant further agrees not to contest his sentence in any post
conviction proceeding, including but not limited to a proceeding under
28 U.S.C. § 2255. . . . Nothing in this paragraph shall act as a bar to the
defendant perfecting any legal remedies defendant may otherwise have
on appeal or collateral attack respecting claims of ineffective assistance
of counsel or prosecutorial misconduct. The defendant’s agreement to
waive the appeal rights as described above is conditioned on the Court
imposing a term of imprisonment of 168 months or less. If the Court
imposes a term of imprisonment greater than 168 months, the appeal
waiver in this paragraph shall be void and have no effect.
During the resentencing hearing on December 14, 2006, the government’s
counsel set forth the terms of the Joint Stipulation; the judge then questioned Jamieson
if he agreed to its terms by asking, “I take it, therefore, that you are knowingly and
voluntarily going to execute this agreement, and that you will live by its terms, am I

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correct?” Jamieson replied, “You are correct.” The district court then issued an
Amended Judgment:
Pursuant to the Sentencing Reform Act of 1984 and 18 United States
Code, Section 3553-A, it is my judgment that the defendant, John
Richard Jamieson, be and is hereby committed to the custody of the
Bureau of Prisons, to be in prison for a term of 168 months on Counts
2 through 33, 35 through 100 and 158, all to be served concurrently.
60 months on Count 1 and 120 months on Counts 101 through 157,
again, to be served concurrently with one another and with the
168 months imposed in the remaining counts for which I have sentenced
this defendant. He shall be credited for all time served in federal
custody.
Essentially, the district court approved the Joint Stipulation and sentenced in accordance
with it.
On May 22, 2009, Jamieson filed a motion to vacate, set aside, or correct a
sentence by a person in federal custody under 28 U.S.C. § 2255. Jamieson premised this
motion on the June 2, 2008, decisions of the Supreme Court of the United States, Santos
and Cuellar. The district court denied this motion as untimely and, alternatively,
because Jamieson had “waived his right to appeal his sentence and conviction on any
ground in the Joint Stipulation.”
First, the district court reasoned that, pursuant to 28 U.S.C. § 2255(f), Jamieson
was precluded from filing a motion challenging his conviction or sentence more than one
year after the date on which his judgment became final. Because Jamieson’s judgment
became final on December 24, 2006, and Jamieson failed to file until May 2, 2009, the
district court found that, “on that ground alone the petition under § 2255 must be
dismissed.”
Second, the district court added that Jamieson waived his right to appeal, and that
such waiver could only be nullified “if [the district court] imposed a sentence greater
than 168 months; [through] a collateral attack claim of ineffective assistance of counsel;
or [through] a collateral attack of prosecutorial misconduct.” The district court had
sentenced Jamieson to 168 months, and no claims of ineffective assistance of counsel

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or prosecutorial misconduct were made in the § 2255 motion. The district court then
analogized Jamieson’s waiver in the Joint Stipulation to a waiver in a plea agreement
and noted: “The plea agreement in [United States v.] Hensel[, 220 F. App’x 428, 432–33
(6th Cir. 2007)] and Jamieson’s sentencing agreement/stipulation both contain valid
waivers and a subsequent change in law that may have had a bearing on the negotiation
of the agreement had it been in effect at the time thereof, will not affect the
enforceability of that waiver.” The district court then held that Jamieson’s claim “is
prohibited by the sentencing agreement/stipulation he voluntarily entered into and
affirmed in open court.”
The district court then declined to apply Santos or Cuellar to Jamieson’s case as
he requested. It stated that neither case had been made retroactively applicable, that
neither case was applicable to Jamieson’s case, and that the court had already articulated
two reasons for dismissing the motion under § 2255.2 Jamieson appeals this decision
and raises the following issues: (1) whether his § 2255 motion was timely filed with the
district court; (2) whether he waived his right to file a § 2255 motion; and (3) whether
the Supreme Court’s decisions in Santos and Cuellar warrant altering his sentence or
conviction.
II.
In reviewing a denial of a 28 U.S.C. § 2255 motion, we review the district court’s
legal conclusions de novo and its factual findings for clear error. Hamblen v. United
States, 591 F.3d 471, 473 (6th Cir. 2009).
III.
Jamieson first challenges the district court’s finding that his motion filed
pursuant to § 2255 was untimely. Section 2255(f) sets forth the one-year statute of
limitations for a motion under this section to, in relevant part, “run from the latest of –

2

The court then noted: “While it may be indulged in by the Court of Appeals, and appropriately
so, at this juncture it would be mere surplusage for this Judge to venture into that discussion, having
already determined the motion must be dismissed on two alternative grounds.”

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(1) the date on which the judgment of conviction becomes final; . . . [or] (3) the date on
which the right asserted was initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made retroactively applicable to cases
on collateral review.” 28 U.S.C. § 2255(f). The district court did not discuss whether
Jamieson’s motion might fit into the limitations period under § 2255(f)(3), but we find
that (f)(3) applies.
The government concedes that Jamieson’s motion was premised on the new
rights set forth in Santos and Cuellar and that “such rights apply retroactively to
otherwise timely § 2255 motions.” Thus, the period of limitation “shall run from . . . the
date on which the right asserted was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). Because Jamieson
filed his § 2255 motion on May 22, 2009, less than one year after Santos and Cuellar
were decided on June 2, 2008, we disagree with the district court and hold that the
motion was timely.
IV.
To prevail on the merits under § 2255,3 Jamieson must show “a fundamental
defect in the proceedings which inherently results in a complete miscarriage of justice
or an error so egregious it violates due process.” Ward v. United States, 995 F.2d 1317,
1321 (6th Cir. 1993). The core of Jamieson’s argument is that, under United States v.
Santos, 553 U.S. 507 (2008), the government had to prove that his money laundering
convictions involved profits, not merely gross receipts. Jamieson asserts that no such
evidence was presented at trial and that we should therefore vacate his conviction. To
understand why this argument fails, a brief summary of Santos and our subsequent
decision in United States v. Kratt, 579 F.3d 558 (6th Cir. 2009), is necessary.

3

Because we are able to dispose of Jamieson’s motion easily on the merits, we choose not to
consider the waiver issue.

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A.
In Santos, the defendant was convicted of conspiracy to run an illegal gambling
business and the substantive offense of running an illegal gambling business, as well as
conspiracy to commit money laundering and the substantive offense of money
laundering. 553 U.S. at 509. The Court considered “whether the term ‘proceeds’ in the
federal money-laundering statute, 18 U.S.C. § 1956(a)(1), means ‘receipts’ or ‘profits.’”
Id. Recognizing that the word “proceeds” was ambiguous in the statute, a plurality of
the Court held that “[b]ecause the ‘profits’ definition of ‘proceeds’ is always more
defendant-friendly than the ‘receipts’ definition, the rule of lenity dictates that it should
be adopted.” Id. at 514. The plurality further explained that defining “proceeds” as
“profits” was required to avoid a “merger problem.” See id. at 515–16 (internal
quotation marks omitted). Santos’s illegal gambling offense carried a maximum of five
years in prison, while the money laundering offense carried twenty years. Id. at 516.
But “[i]f ‘proceeds’ meant ‘receipts,’ nearly every violation of the illegal-lottery statute
would also be a violation of the money-laundering statute, because paying a winning
bettor is a transaction involving receipts that the defendant intends to promote the
carrying on of the lottery.” Id. at 515. Construing the term “proceeds” as “profits” in
the money laundering statute prevented Santos’s sentence from automatically spiking
from five to twenty years. The plurality appeared to hold that “proceeds” always meant
“profits,” id. at 514, but Justice Stevens, in a concurrence resting on narrower grounds,
contended that the “Court need not pick a single definition of ‘proceeds’ applicable to
every unlawful activity . . . . ” Id. at 525 (Stevens, J., concurring).
Three years later, we clarified the meaning of Santos with our decision in Kratt.
We first held that the term “proceeds” has the same meaning in 18 U.S.C. § 1956
(at issue in Santos) and § 1957 (at issue in Kratt). Kratt, 579 F.3d at 560. We then set
forth the following rule: “‘[P]roceeds’ does not always mean profits . . . ; it means profits
only when the § 1956 predicate offense creates a merger problem that leads to a radical
increase in the statutory maximum sentence and only when nothing in the legislative
history suggests that Congress intended such an increase.” Id. at 562. Thus, Kratt

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established a three-part inquiry in light of Santos: (1) is there a merger problem; (2) does
this problem lead to a radical increase in the statutory maximum sentence; and (3) does
the legislative history fail to show that Congress intended the increase? If the answer
to all three questions is yes, “proceeds” means “profits.” If the answer to any question
is no, then “proceeds” means “gross receipts.” See United States v. Cosgrove, 637 F.3d
646, 654–56 (6th Cir. 2011) (explaining and applying the “Santos-Kratt framework”).
B.
We focus here on the second prong of the Santos-Kratt test and begin by
recalling the offenses for which Jamieson was convicted. He was convicted on count
one of the indictment for conspiracy to defraud in violation of 18 U.S.C. § 371. R.1, at
2–26. He was also convicted on counts 2 through 100 for money laundering in violation
of 18 U.S.C § 1956, and on counts 101 through 157 for engaging in monetary
transactions from property derived from unlawful activity in violation of § 1957. R.1,
at 26–38, 39–53. Finally, he was convicted on count 158 of conspiracy to commit
money laundering in violation of § 1956. R.1, at 54–56.
It is key to identify the proper predicate offense for counts 2 through 157—i.e.,
Jamieson’s convictions under § 1956 and § 1957. Section 1956 targets “[w]hoever,
knowing that the property involved in a financial transaction represents the proceeds of
some form of unlawful activity, conducts or attempts to conduct such a financial
transaction which in fact involves the proceeds of specified unlawful activity.”
§ 1956(a)(1) (emphases added). Section 1957 similarly targets anyone who “knowingly
engages or attempts to engage in a monetary transaction in criminally derived property
. . . derived from specified unlawful activity.” § 1957(a) (emphasis added). The term
“specified unlawful activity” is cross-referenced to mean “any act or activity constituting
an offense listed in [18 U.S.C.] section 1961(1).” § 1956(c)(7)(A); see also § 1957(f)(3).
And § 1961(1) lists mail fraud, § 1341, as a specified unlawful activity. To summarize,
in order to commit a violation of either § 1956 or § 1957, one must know that the
property involved represents the proceeds of a “specified unlawful activity”—which
includes mail fraud under § 1341. Accordingly, we find that mail fraud is the predicate

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offense for Jamieson’s § 1956 and § 1957 convictions, represented by counts 2 through
157 of the indictment. See United States v. Van Alstyne, 584 F.3d 803, 810 (9th Cir.
2009) (finding that mail fraud is a predicate offense of money laundering). Jamieson’s
indictment bears this out: in each set of counts under § 1956 and § 1957, the indictment
includes a charge under the mail fraud provision, § 1341.4 See R.1, at 26, 29, 32, 36, 39,
48.
With § 1341 as the predicate offense, Jamieson’s argument fails under the second
prong of the Santos-Kratt framework. A mail fraud conviction under § 1341 carries a
maximum sentence of twenty years, which is the same maximum statutory sentence for
a conviction under § 1956 and ten years more than a conviction under § 1957. See
§ 1341; § 1956(a)(3); § 1957(b)(1). Because the predicate offense of mail fraud carries
a maximum sentence that is already greater than or equal to the maximum statutory
sentences under § 1956 and § 1957, there is no risk that merging the predicate offense
would increase Jamieson’s sentence. In other words, even if we assume that § 1341
merges into § 1956 and § 1957, the merger does not “lead[] to a radical increase in the
statutory maximum sentence.” Kratt, 579 F.3d at 562.
Accordingly, “proceeds” are not defined as “profits” but rather as “gross
receipts” in the case at bar, and Jamieson’s claim that the government did not prove that
he gained “profits” through his offense must fail. As a result, Jamieson has not shown

4

Conspiracy to commit mail fraud in violation of § 371, which was charged under count one of
the indictment and carries a maximum sentence of only five years, is not the predicate offense here. First,
§ 1956 and § 1957 themselves point to § 1341 as a predicate offense, not to § 371. See § 1961(1) (listing
§ 1341 but not § 371 as a “specified unlawful activity” cross-referenced in § 1956 and § 1957). Second,
it does not matter that § 1341, unlike § 371, was not separately charged in the indictment. There is no
requirement that a defendant be separately charged with or convicted of an offense for it to qualify as a
predicate offense. See United States v. Cherry, 330 F.3d 658, 667 (4th Cir. 2003) (“It is clear that a
defendant may be convicted of money laundering even if she is not a party to, much less convicted of, the
specified unlawful activity.” ). Indeed, if an indictment does separately charge money laundering under
§ 1956 and mail fraud under § 1341, and the defendant is convicted on the former but acquitted on the
latter, the result is still “logically consistent” because money laundering “‘does not require proof that the
defendant committed the specified predicate offense, it merely requires proof that the monetary transaction
constituted the proceeds of a predicate offense.’” United States v. Martinelli, 454 F.3d 1300, 1312 n.8
(11th Cir. 2006) (quoting United States v. Richard, 234 F.3d 763, 768–69 (1st Cir. 2000)). Simply put,
a defendant could be found guilty on a one-count indictment for money laundering, which requires proving
that the transaction in question involved the proceeds of a specified unlawful activity—i.e., a predicate
offense, like mail fraud—without mail fraud being separately charged in the indictment.

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“a fundamental defect in the proceedings” required for relief under § 2255. See Ward,
995 F.2d at 1321.
V.
For the foregoing reasons, we affirm the decision of the district court denying
Jamieson’s § 2255 motion.