Pisman v. USA
Filing
8
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Petitioner Yakov Pisman's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. §2255 (Doc. No. 1 ) is GRANTED, in part. IT IS FURTHER ORDERED that the Clerk shall prepare a corrected Judgment. The corrected Judgment shall impose a sentence of 60 months of imprisonment on Count One and 27 months of imprisonment on Count Two, with said sentences to run consecutively. The original supervised release term shall still ap ply. IT IS FURTHER ORDERED that Petitioner Yakov Pisman's original sentence is VACATED. IT IS FURTHER ORDERED that Petitioner's Motion for Disposition Hearing (ECF No. 4 ) is DENIED. IT IS FINALLY ORDERED that Petitioner's Motion for Appointment of Counsel (ECF No. 7 ) is DENIED as moot. Signed by District Judge Ronnie L. White on 11/18/2020. (KCD)
Case: 4:19-cv-00307-RLW Doc. #: 8 Filed: 11/18/20 Page: 1 of 4 PageID #: 41
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
YAKOV PISMAN,
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)
)
)
)
)
)
)
)
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
Case No. 4:19CV307 RLW
MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Yakov Pisman's Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. §2255 ("Motion"), filed February 25, 2019.
(ECF No. 1).
BACKGROUND
On February 22, 2018, Petitioner Yakov Pisman ("Pisman") pleaded guilty to a
Superseding Criminal Information charging him with 1) conspiracy to a) knowingly transport,
receive, possess, sell, distribute and purchase in excess of 10,000 contraband cigarettes; b)
engage in financial transactions knowing that the property involved in said offenses was the
proceeds was unlawful activity, and c) engage in financial transactions knowing that the properly
involved in said offenses was the proceeds of unlawful activity, and that the transactions were
designed to conceal and disguise the nature, location, source of ownership and control of the
proceeds in violation of Title 18 United States Code, Sections 2342(a), 1956(a)(l)(A)(i),
1956(a)(l)(B)(i) and 371, and 2) travelling in interstate commerce between New York and
Missouri with the intent to promote and carry on an unlawful activity in violation of Title 18,
United States Code, Section 1952(a)(3).
(Case Number 4:16-CR-66-RLW).
The sentence
Case: 4:19-cv-00307-RLW Doc. #: 8 Filed: 11/18/20 Page: 2 of 4 PageID #: 42
imposed on each of Counts One and Two was 87 months imprisonment, which exceeded the
statutory maximum sentence of 60 months.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. §2255, a defendant may seek relief on grounds that the sentence was
imposed in violation of the Constitution or law of the United States, that the Court lacked
jurisdiction to impose such a sentence, that "an error of law does not provide a basis
for collateral attack unless the claimed error constituted a fundamental defect which inherently
results in a complete miscarriage of justice." Sun Bear v. United States, 644 F.3d 700, 704 (8th
Cir. 201 l)(internal citations omitted). To warrant relief under §2255, the errors of which the
movant complains must amount to a fundamental miscarriage of justice. Davis v. United States,
417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428-29 (1962).
DISCUSSION
In his §2255 Petition, Pisman asks the Court to Vacate, Set Aside or Correct his sentence
because the sentence of 87 months imprisonment on each of Counts One and Two exceeded the
statutory maximum of 60 months imprisonment on each of Counts One and Two (Ground One)
and that counsel was ineffective for failing to object to the sentenced (Ground Two). (ECF No.
1).
In response, the Government requests the Court vacate the original sentence, correct
Pisman's sentence, and enter a judgment imposing a sentence of 60 months imprisonment on
Count One and 27 months on Count Two (with said sentences to run consecutively) and the
original supervised release term.
(ECF No. 3 at 4).
Here, the sentence imposed on each of Counts One and Two was 87 months
imprisonment, which exceeded the statutory maximum sentence of 60 months. Under 28 U.S.C.
§2255, the Court can "correct the sentence as may appear appropriate" when it discovers such a
sentencing error. 28 U.S.C. 2255(b). The June 18, 2018 presentence report (4:16-CR-66-1;
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ECF No. 850) determined that Pisman's advisory Guideline range was 87-108 months.
(4:16-CR-66-1; ECF No. 850, para. 103).
As part of sentencing, the Government noted that the
other two lead defendants, who had lesser tax loss and money laundering amount, received
sentences of 60 months of imprisonment.
(4:16-CR-66-1; ECF No. 899 at 5).
Therefore, the
Government argued that Pisman should be sentenced within the guideline range of 87-109
months to avoid unwarranted sentencing disparities under Title 18, United States Code, Section
3553(a).
(4:16-CR-66-1; ECF No. 899 at 5).
In order to achieve the sentencing goals identified by the Government and to comply with
the statutory framework, the Court hereby vacates the prior Judgment and orders the Clerk to
prepare and file a corrected Judgment. The corrected Judgment shall impose a sentence of 60
months of imprisonment on Count One and 27 months of imprisonment on Count Two, with said
sentences to run consecutively.
The original supervised release term shall still apply.
Since the Court is merely correcting its prior sentence and the new sentence is not more
onerous than the original sentence, the Court makes this correction on the papers and holds that
Defendant's presence is not necessary.
See United States v. Gruenberg, 53 F.3d 214, 215, n.3
(8th Cir. 1995) (district court did not err in correcting defendant's sentence without his presence in
court where the district court corrected an illegal concurrent sentence and ordered the corrected
sentence to run consecutively to legal sentences on other counts, at least where "the net term of
imprisonment originally imposed is not lengthened"); Rust v. United States, 725 F.2d 1153, 1154
(8th Cir.1984) (per curiam) (where correction did not make sentence more onerous, defendant's
presence not required); United States v. Erwin, 277 F.3d 727, 731 (5th Cir.2001) (affirming district
court's decision to modify prisoner's sentence without a resentencing because change did not make
sentence more onerous); Bergara v. United States, No. 1:05CR00053, 2007 WL 1097859, at *2
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(W.D. Va. Apr. 11, 2007) ("A resentencing hearing is not warranted, because the change to the
sentence is a simple 'correction,' authorized under§ 2255").
Accordingly,
IT IS HEREBY ORDERED that Petitioner Yakov Pisman's Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. §2255 (Doc. No. 1) is GRANTED, in part.
IT IS FURTHER ORDERED that the Clerk shall prepare a corrected Judgment. The
corrected Judgment shall impose a sentence of 60 months of imprisonment on Count One and 27
months of imprisonment on Count Two, with said sentences to run consecutively.
The original
supervised release term shall still apply.
IT IS FURTHER ORDERED that Petitioner Yakov Pisman's original sentence is
VACATED.
IT IS FURTHER ORDERED that Petitioner's Motion for Disposition Hearing (ECF
No. 4) is DENIED.
IT IS FINALLY ORDERED that Petitioner's Motion for Appointment of Counsel
(ECF No. 7) is DENIED as moot.
Dated this 18th day of November, 2020.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
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