SOUELS v. UNITED STATES OF AMERICA

Filing 30

MEMORANDUM OPINION AND ORDER, Denying 25 Motion 59 e for altering or amending a judgment & 28 Motion to Reopen Case. Signed by Judge Jerome B. Simandle on 7/19/18. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SEAN A. SOUELS,

HONORABLE JEROME B. SIMANDLE
Petitioner,

Civil Action
No. 1:15-CV-07563 (JBS)

v.
[Relates to Cr. No. 10-510-05 (JBS)]
UNITED STATES OF AMERICA,
MEMORANDUM OPINION & ORDER
Respondent.

SIMANDLE, District Judge:
Pro se petitioner Sean A. Souels (“Petitioner”) brings this
habeas corpus action pursuant to 28 U.S.C. § 2255 against
Defendant United States of America, seeking to vacate, set
aside, or correct his sentence after conviction of conspiracy to
commit wire fraud, entered after Petitioner pled guilty to such
a charge on September 4, 2014. [Docket Item 3 at 2.] Petitioner
was subsequently sentenced on May 14, 2015 to a term of
imprisonment for forty-six (46) months, supervised release of
three years, and restitution in the total amount of $283,256.26
(consisting of $30,000.00 to be paid to K.P., a victim of the
fraud, followed by $253,256.26 to West Coast Servicing, Inc.,
the successor to the original lender). Id. Petitioner sought to
set aside his sentence on a variety of grounds. Id. at 5-16.
Petitioner’s amended petition [Docket Item 3] raised three
grounds, essentially, as follows:

Ground One: “Violation of Mandatory Victims
Restitution Act 1996”--asserting that amount of
restitution to victims and of loss under U.S.S.G.
§ 2B1.1 were incorrectly computed for the fraudulent
mortgage where the Court determined these figures by
reducing the amount of the fraudulent loans by the
amount obtained by the lender’s successor upon resale
of the real estate collateral. Petitioner argues that
the mortgage lender agreed to a short sale, not a
foreclosure, and that the short sale mea ns there was
no loss and no victim of his crime. Petitioner
asserts: “The District Court violated the Mandatory
Victim’s Restitution Act, by allowing K.P. and/or West
Coast Financing [sic] to receive restitution when they
are not owed any.” (Id. at 6.)
Ground Two: “Illegal Sentence”--asserting that
the defrauded lender’s short sale of the underlying
property yielded no loss for Sentencing Guidelines
purposes because “the total mortgage loan was
satisfied,” and the 12-point loss enhancement pursuant
to U.S.S.G. § 2B1.1(b) was improper. (Id. at 7.)
Ground Three: “Ineffective Assistance”--asserting
that because the lender of the fraudulent loans
reacquired the collateral real estate and sold it by
short sale rather than foreclosure, counsel was
ineffective in failing to object since, in
Petitioner’s view, the entire mortgage indebtedness
was cancelled. (Id. at 9.)
This Court issued a Memorandum Opinion and Order (filed
August 24, 2017) ruling that Petitioner’s petition be dismissed
for lack of subject matter jurisdiction as to Ground One and
that it be denied on the merits as to Ground Two and Ground
Three. [Docket Items 23 & 24.]
After reviewing the circumstances of Petitioner’s fraud,
the Court held that Ground One should be dismissed because an
order for restitution is not normally reviewable under § 2255

2 

because reducing or eliminating the restitution does not result
in the petitioner’s release from custody nor does it negate the
underlying conviction. [Memorandum Opinion and Order, Docket
Item 23 at 7.] The Court held, with respect to both Grounds Two
and Three, that the loss or intended loss under U.S.S.G.
§ 2B1.1(b)(1) and Application Note 3(E)(ii) was properly
computed; in this case, where the victim has recovered the
fraudulent mortgage loan collateral (here, title to the real
property) and then disposed of it by a reasonable sale, the loss
amount is reduced by the amount recovered by the victim from the
disposition. The Court rejected Petitioner’s argument that the
lender suffered no loss when it acquired the property back from
the straw purchaser (K.P.) for $1,000 and cancelled her
indebtedness, that the loss became zero. The Court agreed with
the Government’s position that this formulation provides a
reasonable estimate of loss where the lender (Gateway Funding)
sold this mortgage in a pool of loans to West Coast Servicing,
which obtained title from the titled owner (K.P.) and resold the
underlying collateral to recoup part of the loss. (Memorandum
Opinion filed Aug. 24, 2017 at 4, citing Kramer Statement at
Gov’t Br., Ex. D, and Final PSR ¶ 95.) Accordingly, for reasons
explained in the Memorandum Opinion, the loss was properly
determined at sentencing as the difference between the
outstanding amount of the fraudulent loans ($478,256.26) for
3 

Unit 203, less the proceeds obtained by West Coast Servicing as
Gateway’s successor ($225,000.00), yielding a net loss of
$253,256.26, causing a 12-level enhancement under U.S.S.G.
§ 2B1.1(b).
Petitioner subsequently filed the present motion pursuant
to Rule 59(e), Fed. R. Civ. P., seeking reconsideration of that
Memorandum Opinion and Order [Docket Item 25], along with
Petitioner’s Motion to Reopen pursuant to Rule 60, Fed. R. Civ.
P., alleging fraud by the Government [Docket Item 28].1
Specifically, Petitioner argues upon reconsideration that
this Court should vacate its Memorandum Opinion and Order of
August 24, 2017 to correct manifest errors of law or fact and to
present newly discovered and previously unavailable evidence. He
challenges this Court’s finding that it lacks jurisdiction under
§ 2255 to reduce or eliminate the restitution ordered as part of
his sentencing. He alleges that the Court erroneously determined
the amount of loss upon the fraudulent mortgage loans under
U.S.S.G. § 2B1.1(b)(1), overlooking Petitioner’s argument that
the financial institution that made the loans allegedly sold the
mortgage note to a successor institution at a substantial

1

In the meantime, after filing his Rule 59(e) motion and before
filing his Rule 60(b)(3) motion, Petitioner filed a Notice of
Appeal [Docket Items 26 & 27]. Notwithstanding that appeal, this
Court has jurisdiction to decide the pending motions, Fed. R.
App. P. 4(a)(4).
4 

discount, such that the amount of loss should be calculated only
from the successor lender’s cost of acquiring the mortgage less
the amount the successor lender received when the property was
sold, because the original lender’s loss should not be counted.
Thus, Petitioner seeks to set aside this Court’s denial of his
petition on Grounds Two and Three concerning the amount of loss
calculation.
With regard to his Rule 60 motion to reopen the § 2255
denial, Petitioner invokes Rule 60(b)(3) and accuses the
Government of fraud in misrepresenting that Souels’s Criminal
History Category (CHC) was III when it fact it was I. He alleges
that “[I]n adjudicating the § 2255 motion this court relied upon
the fraud that the defendant had a criminal history of 3 and not
of 1,” and he seeks reopening of the § 2255 motion for
reconsideration by applying the accurate CHC of I. [Docket Item
28 at 2.]
The principal issues to be decided are:
(1)

Whether the determination that § 2255 relief was
unavailable regarding the amount of restitution to the
victims of Petitioner’s fraud overlooked controlling
decisions;

(2)

Whether reconsideration is warranted for the
determination of the amount of “actual or intended
loss” on the fraudulent mortgage loans of U.S.S.G.
5 

§2B1.1(b) and Application Note 3(A)(ii) in denying
relief on Grounds Two and Three; and
(3)

Whether Petitioner presents evidence of the
Government’s fraud justifying reopening the § 2255
proceedings where the Government mistakenly argued
that Petitioner was in Criminal History Category III
rather than I, under the Sentencing Guidelines.

For the reasons that follow, Petitioner’s Motion for
Reconsideration under Rule 59(e) and Petitioner’s Motion to
Reopen under Rule 60(b)(3) will be denied. The Court finds as
follows:
1.

In this district, a Rule 59(e) motion to alter or

amend judgment is reviewed under the same standard as a motion
for reconsideration under L. Civ. R. 7.1(i). A party seeking
reconsideration must set forth “concisely the matter or
controlling decisions which the party believes” the Court
“overlooked” in its prior decision. L. Civ. R. 7.1(i). “As such,
a party seeking reconsideration must satisfy a high burden, and
must rely on one of three grounds: (1) an intervening change in
controlling law; (2) the availability of new evidence not
available previously; or (3) the need to correct a clear error
of law or prevent manifest injustice.” Max's Seafood Cafe ex
rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.

6 

1999); N. River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218
(3d Cir. 1995)).
2.

Reconsideration has always been considered an

“extraordinary remedy” and is “granted very sparingly.”
Grossberger v. Saldutti, 834 F. Supp. 2d 209, 216 (D.N.J. 2011)
(internal quotations and citation omitted). A motion for
reconsideration is an extremely limited procedural vehicle – it
does “not provide the parties with an opportunity for a second
bite at the apple,” Tishcio v. Bontex, Inc., 16 F. Supp. 2d 511,
532 (D.N.J. 1998), nor “may [it] be used to relitigate old
matters, [or] to raise arguments or present evidence that could
have been raised prior to the entry of judgment.” Charles A.
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure: Civil 2d § 2810.1. Mere disagreement with the Court
will not suffice to show that the Court overlooked relevant
facts or controlling law, United States v. Compaction Sys.
Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999), and should be
dealt with through the normal appellate process. S.C. ex rel.
C.C. v. Deptford Twp. Bd. of Educ., 248 F. Supp. 2d 368, 381
(D.N.J. 2003). Therefore, in order for reconsideration to be
warranted, the party seeking reconsideration must specifically
rely upon one of the qualifying bases, see L. Civ. R. 7.1(i),
and not merely a recapitulation of prior cases and arguments,
nor an expression of disagreement with the Court's earlier
7 

decision. See Arista Records, Inc. v. Flea World, 356 F. Supp.
2d 411, 416 (D.N.J. 2005). Generally, there are four basic
grounds upon which a Rule 59(e) motion may be granted: (1) to
correct manifest errors of law or fact upon which the judgment
was based; (2) to present newly-discovered or previously
unavailable evidence; (3) to prevent manifest injustice; and (4)
an intervening change in the prevailing law. See 11 Charles A.
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2810.1; see also Harsco v. Zlotnicki, 779 F.2d 906,
909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986).
3.

Petitioner cites the first three grounds in his motion

[Docket Item 25 at 2], directing the Court’s attention to what
he claims is “new and prevailing information received after the
filing of the 2255 motion.” Id. Namely, Petitioner cites the
information in the Government’s Brief of July 25, 2016 and the
attached Kraemer Statement as being “new.”
4.

Petitioner argues, first, that the Court overlooked

case law allowing for claims challenging restitution orders to
be brought pursuant to 28 U.S.C. § 2255. For the following
reasons, the Court, having attended to the allegedly overlooked
case law, finds that the law and precedent of the Third Circuit
does not support jurisdiction under § 2255 to review a
restitution order, and declines to find in Petitioner’s favor as
to this argument.
8 

5.

Petitioner appears to look to the non-precedential

opinion in Gardner v. Bledsoe, 415 F. App’x 384, 385-386 n.1 (3d
Cir. 2011) for support, but the Court disagrees that this case
presents support for Petitioner’s position. In Gardner, the
petitioner filed a § 2241 petition “attacking the sentencing
court’s restitution order.” 415 F. App’x at 385. The Third
Circuit affirmed the dismissal of the petition on the grounds
that, while claims that the BOP exceeds its authority in setting
a schedule for restitution payments are cognizable under § 2241,
McGee v. Martinez, 627 F.3d 933, 936-37 (3d Cir. 2010), the
petitioner’s claim “challenge[d] the . . . order, not the BOP’s
execution of it[,]” and the District Court accordingly lacked
jurisdiction to entertain such a claim under § 2241. Gardner,
415 F. App’x at 386. In a footnote, the court noted cases where
other courts have held that “claims attacking restitution
orders” are cognizable under § 2255, as well as cases where
courts have found that they are not, concluding, “We express no
opinion as to whether Gardner may challenge his restitution
order through 28 U.S.C. § 2255 or via some other procedural
mechanism in the sentencing court in North Carolina.” Id. at 386
n.2.
6.

The cases discussed in the Gardner footnote are the

other cases cited by Petitioner in his Rule 59(e) motion; i.e.,
they were all considered and cited by the Third Circuit,
9 

whereupon the Third Circuit expressly declined to express an
opinion about whether a restitution order can be challenged
under § 2255. Petitioner, however, omits citing the case cited
by the Third Circuit wherein the Second Circuit ruled that
“challenges to noncustodial punishments are not cognizable in a
§ 2255 petition even when joined with challenges to custody”),
id. at 386 n.2 (citing Kaminski v. United States, 229 F.3d 84,
87-89 (2d Cir. 2003)).
7.

In U.S. v. Kramer, the Ninth Circuit held that Ҥ 2255

is available only to defendants who are in custody and claiming
the right to be released. It cannot be used solely to challenge
a restitution order.” 195 F.3d 1129, 1130 (9th Cir.
1999)(collecting cases). This is precisely contrary to what
Souels mistakenly says this case says, namely, “courts [ruled]
that attacking restitution are normally cognizant under 2255
motion. The court stated that persons must not only be in
custody but claiming the right[] to be released.” [Docket Item
25 at 4.] Kramer was also favorably cited by the Third Circuit
in Easton v. Williamson, 267 F. App’x 116, 117-18 (3d Cir.
2008), wherein the court stated: “We disagree with the District
Court’s conclusion that Easton must necessarily raise his claim
[challenging the failure of the sentencing court to follow the
strictures of the MVRA] in a motion under 28 U.S.C. § 2255.
Ordinarily, challenges to a restitution order are not cognizable
10 

under § 2255.” Id., citing Kramer, 195 F.3d at 1130 (emphasis
added). The court stated: “We express no opinion as to whether
Easton may challenge his restitution order through some other
procedural mechanism in the sentencing court.” Easton, 267 F.
App’x at 118.
8.

Contrary dicta appear in two instances in the case

law, but do not decide the point. In Matheny v. Morrison, the
Eighth Circuit addressed the constitutional claim of a
petitioner who argued that the BOP’s payment scheme for
collecting restitution “violate[d] Article III of the United
States Constitution because the court has delegated its
sentencing power to the BOP” and ruled that this claim “attacks
the validity of the sentence” and “must be brought through a
§ 2255 claim in Robinson’s sentencing district.” 307 F.3d 709,
711 (8th Cir. 2002). However, the Eighth Circuit later moved
away from this opinion, stating: “Significantly, this court did
not address in Matheny whether a challenge to the restitution
portion of the sentence was cognizable under section 2255, but
simply put forth the more general proposition that claims
attacking the validity of a sentence should be raised under
section 2255 in the sentencing district. Accordingly, the
portion of Matheny advanced by Shephard in support of her claim
is mere obiter dictum.” Shephard v. U.S., 735 F.3d 797, 798 (8th
Cir. 2013). See also U.S. v. Shaw, 508 F. App’x 769, 772 (10th
11 

Cir. 2013)(recognizing Matheny as one approach to allowing
challenges to non-custodial aspects of sentences under § 2255,
but comparing with other courts that have found no jurisdiction
to entertain such challenges, and finding question “unsettled”
in Tenth Circuit after declining to adopt Matheny approach).
9.

Finally, Petitioner does cite one case that supports

his attempt to attack the restitution order in a § 2255
petition. In Weinberger v. U.S., the Sixth Circuit expressly
found that a petitioner’s claim regarding a restitution order
was cognizable under § 2255, contra Kramer, where those claims
were coupled with a successful ineffective-assistance-of-counsel
claim. 268 F.3d 346, 351-52 (6th Cir. 2001); id. at 351 n.1
(citing Ratliff v. U.S., 999 F.2d 1023, 1025 (6th Cir.
1993)(alleged ineffective assistance of counsel in failing to
appeal restitution order, where award would have been subject to
reversal on appeal, is cause to allow such a claim under
§ 2255)).
10.

However, in the main, cases citing Weinberger have

cited it as contrary authority and declined to allow such a
claim. See, e.g., U.S. v. Trimble, 12 F. Supp. 3d 742, 746
(E.D.Pa. 2014)(“a challenge to a restitution order brought under
the guise of an ineffective assistance of counsel claim is also
not cognizable in a habeas petition because it does not seek
release from custody. Indeed, almost every court of appeals to
12 

confront this issue has held that a petitioner cannot bring an
ineffective assistance of counsel claim under § 2255 to
challenge an allegedly erroneous restitution order or fine.
Shephard v. United States, 735 F.3d 797, 798 (8th Cir. 2013);
Kaminski, 339 F.3d at 85 n.1; [U.S. v.] Thiele, 314 F.3d [399,]
402 [(9th Cir. 2002)]; Smullen[ v. U.S.], 94 F.3d [20,] 26 [(1st
Cir. 1996)]; U.S. v. Segler, 37 F.3d 1131, 1137 (5th Cir. 1994).
Contra Weinberger v. United States, 268 F.3d 346, 351 n.1 (6th
Cir. 2001)”); Awe v. U.S., No. 15-8155 (JLL), 2017 WL 1157865,
at *5 (D.N.J. Mar. 27, 2017)(citing Trimble, inter alia, for
support for proposition that restitution may not be challenged
under § 2255, even when coupled with IAC claim, contrary to
Weinberger); Kolasinac v. U.S., No. 13-1397 (JLL), 2016 WL
1382145, at *5 (D.N.J. Apr. 7, 2016)(same).
11.

Given the holdings of the Third Circuit in the non-

precedential opinions of Easton and Gardner, and the clear
preponderance of other courts’ determinations, the Court finds
once again that Petitioner’s challenge to the restitution order,
where a successful challenge would not question his conviction
or reduce or end his custodial confinement, is not cognizable
under § 2255; accordingly, the Court declines to alter its
original holding [Docket Item 23 at 5-7], and Petitioner’s
Motion pursuant to Rule 59(e) as to this claim is denied. Where
validity of the conviction and custody is not affected by a
13 

determination of the alleged restitution ground, the Court lacks
jurisdiction to determine whether the restitution award was
calculated correctly on this § 2255 petition.2
12.

Next, Petitioner claims that he was prevented from

presenting certain information in his § 2255 petition because he
did not receive this information until such time that it would
have rendered the filing of his petition untimely and/or he
received it after he filed his petition. [Docket Item 25 at 5.]
Petitioner describes this “new information”: “A. That West Coast
was a successor lender and not the first. B. That West Coast
purchased the note in a pool of mortgages for pennies on the
dollar, as stated in the FD_302. C. That West Coast DID NOT pay
$478,000.00 the unpaid balance it extended to KP, to acquire the
note. D. That West Coast decided with KP on a deed in lieu of
foreclosure, wherein KP received a windfall profit, not a short
sale.” Id. Petitioner submits that this information means that
“the court’s calculation as to [U.S.S.G. §] 2[B]1.1 for loss did
not take into consideration that as a successor lender it pays
much less to acquire a note[,]” that this “allowed a 12 point
enhancement, contributing to an illegal sentence.” Id. At the

2

Thus, the Court does not address Petitioner’s arguments that
the lender’s successor (West Coast Servicing, Inc.) and
Petitioner’s naïve, young congregant (K.P.) whom he admittedly
induced to serve as a straw purchaser and whose personal account
he invaded to take funds for his own benefit were not “victims”
for purposes of restitution.
14 

threshold, this information is not “new” since West Coast was
known to be Gateway Funding’s successor at the time of
sentencing, and also because, as noted above and in the Court’s
Memorandum Opinion of August 24, 2017, the Government provided
Petitioner with the FBI Form 302 as Exhibit D to its Opposition
Brief on July 26, 2016 [Docket Item 14-4 in Civil Action No. 1507563(JBS)]. If Petitioner deemed this material about West Coast
Servicing’s acquisition of the fraudulent mortgage and its
disposition new or relevant, he could have addressed it in a
reply while his § 2255 petition was under consideration, see
Rule 5(d), Rules Governing Section 2255 Proceedings for the
United States District Courts. A motion for reconsideration does
not enable a losing party to raise arguments known to the
parties that could have been raised, but were not, in the
adjudication of the underlying order.
13.

The crux of Petitioner’s speculation is that West

Coast Servicing lost less than the Court calculated, and that
the loss suffered by Gateway Funding should somehow be
disregarded in the loss calculation, that the Court used this
erroneously high figure of total loss to calculate that
Petitioner ought to receive a 12-point enhancement under
U.S.S.G. § 2B1.1(b)(1), and that Petitioner’s counsel was
therefore constitutionally ineffective in not raising this
issue. [Docket Item 25 at 4-8.]
15 

14.

Petitioner cites U.S. v. Howard, 784 F.3d 745, 750

(10th Cir. 2015) for the proposition that the measure of actual
loss should be computed differently for a downstream lender
rather than the original noteholder. [Docket Item 25 at 6.]
However, the court in Howard found that that distinction is
correct when “computing restitution” for a restitution order
made pursuant to the Mandatory Victims Restitution Act of 1996
(MVRA), 18 U.S.C. §§ 3663 et seq., but not when performing “the
total-loss calculation under U.S.S.G. § 2B1.1[, which] does not
depend on which lender in the chain of title of a mortgage note
suffered what loss[.]” Howard, 784 F.3d at 750-51. Moreover,
other Circuits have agreed that the total loss in a fraudulent
mortgage case includes the losses suffered by the original
lender and its successor that acquired the fraudulent mortgage.
See U.S. v. Ritchie, 858 F.3d 201, 217 (4th Cir. 2017)(Bank of
America purchased Countrywide Bank, original holder of the
fraudulent mortgage “and, thereby, acquired all of Countrywide
Bank’s assets--including, as odd as it may sound, all rights to
the fraudulently obtained loan. Bank of America is not a
successor or downstream purchaser of Ritchie’s loan. Bank of
America is the successor to the defrauded entity, the sole
remaining victim of Ritchie’s illegal conduct, and the only
entity with the legal right to receive the money that was lost
as a result of Ritchie’s crime.”). The other cases Petitioner
16 

cites [Docket Item 25 at 6-7] are likewise inapposite. While
U.S. v. James, 592 F.3d 1109, 1115 (10th Cir. 2010) found that
the district court erred in using the successor lenders’ actual
loss to calculate an enhancement under § 2B1.1, this was so
because the district court also “explicitly found that ‘the
losses of those entities does not constitute reasonably
foreseeable pecuniary harm.’” This finding was unchallenged on
appeal and the court did not address its merits. Id. at 1115
n.3. That circumstance is not present here, and the reasoning is
therefore unpersuasive. It was fully foreseeable to Souels that
when he fraudulently enlisted K.P. to be the straw purchaser of
Unit 203 knowing her to be of modest income, and when he
certified to the lender that his church employed her in a highpaying, non-existent position that made her falsely appear
capable of repaying the enormous loans, and when he conspired
with others to do so, he was setting into motion a cascade of
losses to both the lender and to its successor that could not be
fully reckoned until the successor made reasonable disposition
of the property. The precise amount which the successor West
Coast Servicing paid to the initial lender Gateway Funding,
which is unknown, is not material to the total loss calculation;
whatever the transaction price in December, 2007, the total loss
figure sustained by Gateway Funding and West Coast Servicing is
a constant.
17 

15.

Petitioner has not pointed to any other evidence

suggesting that the Court incorrectly calculated the enhancement
under § 2B1.1 or overlooked any controlling or persuasive case
law or any relevant evidence; the Court accordingly therefore
declines to grant Petitioner’s Motion for Reconsideration on
this point, and again determines that counsel was not
ineffective at sentencing for failing to advance this nonmeritorious argument.
16.

Petitioner next claims that the Court erred in

“overlook[ing] the fact that the criminal history of defendant
was not a 3 which contributed to 46 months being given.” [Docket
Item 25 at 8.] The Court notes that, in the previously issued
Memorandum Opinion denying § 2255 relief, the Court does indeed
state, as background information, that Petitioner’s criminal
history score was calculated at Category III [Docket Item 23 at
1]. The Court regrets the inadvertent error in that Memorandum
Opinion. It appears that, at Petitioner’s sentencing on May 14,
2015, the Court misspoke and initially stated that Petitioner
would be considered with “Criminal History Category III.”
[Docket Number 1:10-cr-00510-05-JBS, Docket Item 349 at 24.]
However, the Court was looking at the correct Guidelines range
figure in the Sentencing Table for a Criminal History Category
I, which was (at Offense Level 23) 46 to 57 months, as the Court
correctly stated. Id. In the same hearing, notwithstanding this
18 

error, Petitioner’s counsel explicitly affirmed that petitioner
was “a first time offender, at least in terms of Criminal
History Category” (id. at 27), and the Court subsequently
reaffirmed at sentencing its understanding that Souels was in
Criminal History Category I and stated: “The first thing we did
was compute the advisory Guideline range, and that range was
determined by Offense Level 23 and Criminal History Category I.
And for Offense Level 23 and Criminal History Category I the
advisory Guideline range is 46 to 57 months of imprisonment.”
Id. at 68. Accordingly, Plaintiff’s contention that the Court
inaccurately assessed his criminal history when calculating his
sentence lacks substantive merit.3 In short, the Court again
determines Souels was properly sentenced at Criminal History
Category I.
17.

Petitioner’s Motion to Reopen [Docket Item 28] is

premised upon the same erroneous assumption that the Court
calculated Petitioner’s Criminal History as Category III.
[Docket Item 28 at 1, 2-3.] Petitioner is attempting to seize
upon an inconsequential misstatement of the actual Guideline
score that was in fact applied to his sentencing. While the

3

Furthermore, if the Court at sentencing had incorrectly
regarded his Criminal History Category as III, the resulting
recommended Guidelines range would have been defined by TOC 23,
CHC III, which would have been significantly greater (57 to 71
months of imprisonment) than the range the Court applied (46 to
57 months).
19 

Court regrets the misstatement and the reiteration of the
mistake in the previous Memorandum Opinion, Petitioner may rest
assured that no fraud occurred and the Court in fact calculated
his sentence using Criminal History Category I, which led to the
advisory range of 46 to 57 months, as stated in the record again
and again. Petitioner’s Rule 60(b) motion is therefore lacking
in merit as well.
18.

For the foregoing reasons, it is ORDERED that

Petitioner’s Motion for Reconsideration [Docket Item 25] shall
be, and hereby is, DENIED.
19.

IT IS FURTHER ORDERED that Petitioner’s Motion to

Reopen [Docket Item 28] shall be, and hereby is, DENIED.

July 19, 2018
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

20