Lingo v. USA

Filing 3

MEMORANDUM AND ORDER directing govt response to 2255 motion; granting 2 MOTION for Leave to Proceed in forma pauperis. Signed by Judge J. Phil Gilbert on 4/26/10. (eed)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS JASON DAVID LINGO, Petitioner/Defendant, vs. UNITED STATES of AMERICA , Respondent/Plaintiff. ) ) ) ) ) ) ) ) )

CIVIL NO. 09-cv-847-JPG CRIMINAL NO. 07-cr-30189

MEMORANDUM AND ORDER GILBERT, District Judge: This matter is before the Court on Petitioner Jason Lingo's motion for relief pursuant to 28 U.S.C. § 2255. In an open plea, Lingo pleaded guilty to (Count 1) possession of unauthorized access devices, (Count 2) mail fraud, and (Count 3) aggravated identity theft. Lingo was sentenced to 60 months imprisonment on Count 1 and 2 (concurrent sentences), and 24 months imprisonment on Count 3 to run consecutively to the 60-month sentence, followed by three years supervised release; he also was ordered to pay $3612.31 in restitution, as well as a special assessment of $300. Lingo did not file a direct appeal, but later he filed the instant motion under § 2255, along with a motion for leave to proceed in forma pauperis (Doc. 2). The Court finds that Lingo is, in fact, indigent; thus the motion to proceed in forma pauperis is GRANTED. In his motion, Lingo challenges just one aspect of his sentence. He asserts that a two-level enhancement was applied wrongly under U.S.S.G. § 2B1.1(b)(1)(A)(ii), as no government authority was the "issuing authority" for any authentication feature. Due to the improper application of this enhancement, Lingo states that his criminal offense level was set at 19, rather than 17; thus, the

sentencing range was improperly determined as 33-41 months, rather than 27-33 months. Lingo further asserts that trial counsel was ineffective in failing to raise this issue on direct appeal. The Court ORDERS the Government to file a response to Lingo's motion within THIRTY (30) DAYS of the date of this Order. The Government shall, as part of its response, attach all relevant portions of the record. IT IS SO ORDERED. Dated: April 26, 2010. s/ J. Phil Gilbert U. S. District Judge

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