BULTMEYER v. UNITED STATES OF AMERICA

Filing 11

OPINION. Signed by Judge Jose L. Linares on 2/26/2015. (nr, )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PAUL BULTMEYER,
Civil Action No. 13-2771 (JLL)

Petitioner,
v.

:

OPINION

UNiTED STATES OF AMERICA,
Respondent.
[iNARES, District Judge:

Presently before the Court is the motion of Paul
Bultmeyer (“Petitioner”) brought pursuant
to 28 U.S.C.

§ 2255. (ECF No. 1.) Respondent, United States of America (“Respon
dent”),

filed

an Answer (ECF No. 7) and Petitioner filed
a Reply (ECF No. 8). For the following reaso
ns, the
Court denies Petitioner’s motion.
I.

BACKGROUND

Petitioner, along with owner Arthur Piac
entini, operated Ameripay LLC, a payroll
company located in Rochelle Park, New Jerse
y. (Information p. 1). Ameripay handled
payroll
and tax withholding services for numerou
s private companies and public entities
located
throughout New Jersey. (Id.). In or abou
t 2004, Petitioner and Piacentini incorpora
ted
Sherbourne Capital Management, Ltd., as
well as the related entity Sherboume Fina
ncial, Ltd,
which purported to be investment compani
es. (Id.) Neither Sherbourne entity was
registered
with Federal or State regulators. (Id.). Thro
ugh the course of its operations, Ameripay
amassed
a large deficit, which Petitioner argues arose
out of IRS tax penalties, losses arising out
of a
trademark suit, and losses from several fraud
s committed by Ameripay clients. United
States v.

Bultmeyer, 483 Fed. Appx. 750, 751 (3d Cir. 2012).
In an attempt to conceal the deficit, Petitioner
and his co-defendant Piacentini diverted several milli

on dollars from Ameripay clients. Id. They

also solicited investments into the Sherbourne
entities from retirees, promising that such moneys
would be invested into private placement debt, high
grade corporate bonds, preferred stock, and
government securities. Id. These moneys were
instead loaned back to Ameripay to help cover
its deficits without notice to Sherbourne’s clients.
Id.
On May 9, 2010, Petitioner pled guilty before
this Court to a one count information
charging him with conspiracy to commit wire fraud
arising out of the diverting of funds from
Ameripay clients and Sherbourne’s comingling with
Ameripay rather than investing as promised.
Id. at 751-52. This plea arose out of a plea agre
ement between petitioner and the United States
Attorney’s office, which Petitioner signed on Marc
h 18, 2010. (Plea Agreement 5). Pursuant
p.
to the agreement, Petitioner pled guilty to the one
count information, and the Government agreed
not to bring any other charges arising out of these
events. (Id. at 1). As part of the plea
agreement, Petitioner stipulated that the loss amo
unt was between seven and twenty million
dollars, and that the number of victims was betw
een fifty and two-hundred and fifty. (Id. at 6).
Petitioner also stipulated that, if this Court accepted
these stipulations, Petitioner would waive his
right to appeal or collaterally attack the findi
ng as to loss amount. (Id.). In spite of this
stipulation, Petitioner and the U.S. Attorney agre
ed that petitioner could argue the loss amount at
sentencing and during the PSR determinations.
Bultmeyer, 483 Fed. Appx. at 753. Following
a
Rule 11 motion, this Court held a plea hearing at
which it thoroughly explained to petitioner the
rights he was waiving by agreeing to the plea,
the nature of the crime to which he was pleading,
the elements thereof, and the Government’s burd
en should the matter instead proceed to trial, all
2

of which petitioner stated he understood.

(Plea Colloquy 8:7-31:15).

Petitioner, at the plea

hearing, also stated that he had been provided an opportuni
ty to discuss all of this information with
counsel, and was satisfied with counsel’s responses to his
questions. (Id.).
This Court held a sentencing hearing on March 18, 2011.
At the hearing, defense counsel
argued at length for a lesser loss amount, and argued that, cont
rary to the PSR, an abuse of trust
enhancement was not appropriate.

(Sentencing Tr. 17-18, 27-29).

Following argument, this

Court
carefully considered the PSR, sentencing memoranda subm
itted by
both parties, and the arguments of counsel. The District
Court
found that the loss exceeded $7,000,000, warranting a
20-level
enhancement, and that [petitioner] was in a position
of trust,
warranting a two-level enhancement.
After considering the
statutory factors set forth in 18 U.S.C. 3553(a), the Dist
rict Court
§
granted a downward departure and sentenced [petitione
r] to 60
months imprisonment.
[Bu!tmeyer, 483 Fed. Appx. at 752.]
Petitioner thereafter appealed his sentence to the Third Circui
t, contesting the loss amount, the
abuse of trust enhancement, and the procedural and substanti
ve reasonableness of his sentence.
The Third Circuit affirmed the judgment of this Court on April
24, 2012. Id. at 750.
On April 30, 2013, petitioner filed the instant motion to
vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. §2255, his first habeas petit
ion. Bultmeyer v. United States, Civil
Action No. 13-2771. Respondent filed an answer to the
motion on January 17, 2014 (ECF No.
7). Petitioner filed a reply brief on February 19, 2014.
(ECF No. 8). In his motion, Petitioner
argues that (1) his sentence should be vacated because the Sent
encing Guideline

s coerced him into

pleading guilty, (2) this Court erred in determining the loss
amount it did as well as in (3) finding
an abuse of trust enhancement, (4) his sentence was proc
edurally and substantively unreasonable,
3

(5) this Court was biased in making its determinations at senten
cing (raised here for the first time),
(6) his counsel was ineffective, and (7) that this court erred in
finding abuse of trust and its loss
calculation without a jury verdict or admission on
those facts which constitutes an
Apprendi/Alleyne error. As Petitioner’s arguments are either
barred, without merit, or plainly
contradicted by the record, Petitioner’s motion is denied
.

IL DISCUSSION
A.

Legal Standard

A prisoner in federal custody may file a motion pursuant to 28
U.S.C.

§ 2255 challenging

the validity of his or her sentence. Section 2255 provides, in
relevant part, as follows:
A prisoner in custody under sentence of a court established
by Act
of Congress claiming the right to be released upon the ground
that
the sentence was imposed in violation of the Constitution or
laws of
the United States, or that the court was without jurisdi
ction to
impose such a sentence, or that the sentence was in excess
of the
maximum authorized by law, or is otherwise subject to collate
ral
attack, may move the court which imposed the sentence to vacate
,
set aside or correct the sentence.
28 U.S.C.

§ 2255.

Unless the moving party claims a jurisdictional defect or
a Constitutional violation, the
moving party must show that an error of law or fact
constitutes “a fundamental defect which
inherently results in a complete miscarriage of justice,
(or) an omission inconsistent with the
rudimentary demands of fair procedure.” United States v.
Horsley, 599 F.2d 1265, 1268 (3d Cir.)
(quoting Hill v. United States, 368 U.S. 424, 429 (1962)
), cert. denied 444 U.S. 865 (1979); see
also More/li v. United States, 285 F. Supp. 2d 454, 458-59
(D.N.J. 2003).

4

B.

Analysis

1.

An evidentiary hearing is not required

An evidentiary hearing is required by §2255 “unless the motion
and files and records of
the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. §2255(b); United
States

i’.

Day, 969 F.2d 39, 41-42 (3d

cir. 1992). If the record, supplemented by the trial judge’s

personal knowledge, conclusively negates the factual predica
tes asserted by a petitioner, and/or
indicate that petitioner is not entitled to habeas relief as a matter
of law, no evidentiary hearing is
required. Government of Virgin Islands v. Nicholas, 759 F.2d
1073, 1075 (3d Cir. 1985). For

the reasons explained herein, claims brought by Petitioner in
this case are all either improperly
raised, without merit, or flatly contradicted by the record, and therefo
re the record establishes that
Petitioner is not entitled to relief as a matter of law. No eviden
tiary hearing is therefore required
on Petitioner’s claims.

2. The “coercive” effects of the United States Sentencing
Guidelines

Petitioner first argues that his guilty plea was coerced. Petitio
ner’s argument relies on his
supposition that the sentence reduction provided to defendants
who plead guilty by US.S.G.
3E 1.1 (Acceptance of Responsibility) pressures criminal defend
ants

§

into guilty pleas and dissuades

them from pursuing their Sixth Amendment right to trial. While
the acceptance of responsibility
reduction undoubtedly does incentivize criminal defendants
to plead guilty in order to avoid a
harsher sentence, that incentive is entirely constitutional.
See United States v. Cohen, 171 F.3d
796, 804-06 (3d Cir. 1999) (“Sentencing Guideline 3E1.1
creates.
5

.

.

an incentive for defendants

to plead guilty, and under [Corbitt v. New Jersey, 439
U.S. 212 (1978)], this incentive is
constitutional.”). As the Supreme Court has noted, “[t]he
plea bargaining process necessarily
exerts pressure on defendants to plead guilty and to abando
n a series of fundamental rights, but..
the government ‘may encourage a guilty plea by offering substa
ntial benefits in return for the
plea.” US. v. Mezzanato, 513 U.S. 196, 209-210 (1995) (quotin
g C’orbitt, 439 U.S. at 219). As
the Third Circuit has found that the incentive to plead guilty
provided by US.S.G.

§ 3E1.l is

analogous to that upheld by the Court in Corbitt, and therefo
re does not impugn a defendant’s
Sixth Amendment right to trial, the pressure petitioner alleges
induced him to plead guilty is
insufficient to permit a finding of a constitutional violation or
miscarriage of justice sufficient to
warrant habeas relief. Cohen, 171 F.3d at 805.

3. Loss Calculations

Petitioner next argues that this Court erred in making its
determinations as to loss at
sentencing.

As noted by the Third Circuit in Petitioner’s direct appeal
, petitioner’s plea

agreement included a stipulation that the loss amount was betwee
n $7 million and $20 million,
and an appellate waiver which, if valid, prevents Petitioner from
attacking the Court’s acceptance
of that stipulated amount either directly or collaterally. See Bultm
eyer, 483 Fed. Appx. at 75253. As Petitioner’s waiver was knowing, voluntary, and the
waiver would not work a miscarriage
of justice, Petitioner is barred from challenging the loss calcula
tion in this petition. See United
States v. Mabry, 536 F.3d 231, 236-37 (3d Cir. 2008).
Criminal defendants “may waive both constitutional and statuto
ry rights, provided they do
so voluntarily and with knowledge of the nature and conseq
uences of the waiver.” Id. at 236.
6

The right to appeal is among those rights which can be waived, and
such waivers are not violative
of public policy. Id. at 236-37. An appellate or collateral waiver
will be enforced provided it is
“entered into knowingly and voluntarily” and its enforcement “does
not work a miscarriage of
justice.” Id. at 237. A waiver will be found to have been knowi
ng and voluntary where the
district court “inform[s] the defendant of and determine[s] that
the defendant under[stood].. the
.

terms of any plea-agreement provision waiving the right to
appeal or to collaterally attack the
sentence.” Id. at 239. Tn determining whether an alleged error
would render enforcement of an
otherwise valid waiver a miscarriage ofjustice, the Court must consid
er the clarity of the error, its
gravity, its character, the impact of the error on the defendant, the
impact of correcting the error
on the government, and the extent to which the government acquiesced

in the result. United States

v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001).
The transcript of the plea colloquy clearly demonstrates that Petitio
ner entered his plea,
which included the appellate waiver, knowingly and voluntarily.

During the colloquy, Petitioner,

an educated man who possesses a law degree, was instructed as
follows:
THE COURT:
if [the Court] accept[s] any of the stipulations we
discussed, [including the stipulation that the loss amount
was
between $7 million and $20 million], any of the facts that you[’v
e]
agree[d] to be true, if [the Court] accept[s] them as a basis for
your
sentence, and [the Court] accept[s] them as one of the things
that I
take into consideration for your sentence, you are waiving your
right
to appeal based on the fact that [the Court] accepted any of
those
stipulations in determining your sentence.
.

.

.

Do you understand that?
[Petitioner]: Yes, I do, your Honor.
THE COURT: Have you had an opportunity to discuss that with
your attorney?

7

[Petitioner]: Yes, I have, your Honor.
(Plea Colloquy Tr. 25:10-22).
This portion of the colloquy, when coupled with Petitione
r’s statements that he understood the
proceedings, understood the plea, and had discussed the
plea and surrounding documents with his
attorney to his satisfaction, clearly demonstrates that
Petitioner’s knowing and voluntary
agreement to the appellate/collateral attack waiver. Mab
ry, 536 F.3d at 23 6-37, 239. The Court
clearly explained the waiver, and Petitioner expressed his
understanding of, and agreement to, that
portion of the plea agreement.

As such, Petitioner’s knowing and voluntary waiver of
his

appellate and collateral rights was valid. Id.; Bultmeyer, 483
Fed. Appx. at 752-53.
As Petitioner’s waiver was knowing and voluntary, the waiv
er is enforceable so long as
enforcement would not result in a miscarriage of justice.
Mabiy, 536 F.3d at 237. Looking at
the specific circumstances of this case using the common sens
e approach suggested by Mabry and
Khattak, the record does not support Petitioner’s asser
tion that the waiver here represents a
miscarriage of justice. Petitioner knowingly and voluntari
ly entered into his plea agreement,
including the waiver. Even though Petitioner had alrea
dy stipulated to a loss amount in excess of
seven million dollars, this Court provided Petitioner with
the opportunity to argue for a lesser
amount and carefully considered the arguments of both defe
nse counsel and the Government in
concluding that the PSR calculation was the proper metric
for loss in this instance. Thus, the facts
do not suggest that a miscarriage ofjustice occurred in this
instance. As Petitioner’s waiver was
knowing and voluntary, and as there is no evidence that
a miscarriage ofjustice would result from
enforcing the waiver, Petitioner is barred from attacking
id., Bzthnieyer, 483 Fed. Appx. at 752-53.

8

the loss calculation in this habeas petition.

4. Ineffective Assistance of Counsel

Petitioner next argues that his trial and appellate counsel were constit
utionally defective.
Claims of ineffective assistance of counsel under the Sixth Amend
ment are governed by the twoprong test of Strickland v. Washington, 466 U.S. 668 (1984). Under
that standard, defendant must
first show that “counsel’s performance was deficient. This require
s showing that counsel made
errors so serious that counsel was not functioning as the “couns
el” guaranteed by the Sixth
Amendment. Id. at 687. Second, defendant must show that counse
l’s deficient performance
prejudiced the defense such that counsel’s errors were so serious
as to “deprive defendant of a fair
trial

.

whose result is reliable.” Id.
In determining whether counsel was deficient, the “proper
standard for attorney

performance is that of ‘reasonably effective assistance.” Jacobs
v. Horn, 395 F.3d 92, 102 (3d
Cir. 2005). Thus, a petitioner must show that his counsel’s represe
ntation “fell below
standard of reasonableness” considering all the circumstances
.

Id.

an objective

Such reasonableness is

determined based on the facts of the particular case, viewed as
of the time of counsel’s conduct.
fd.

Judicial scrutiny of counsel’s performance “must be highly deferen
tial

.

.

.

a court must

indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Even if
a petitioner shows deficiency, he
must still demonstrate prejudice to his defense. Id. at 692. Defend
ant must affirmatively prove
prejudice. Id. at 693. “It is not enough for the defendant
to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. Petitio
ner must show that “there is a
reasonable probability, but for counsel’s unprofessional errors,
the result of the proceeding would
9

have been different. A reasonable probability is a probability
sufficient to undermine confidence
in the outcome.” Id. at 694.
Petitioner argues that his counsel was ineffective in the follo
wing four instances: 1) in
allowing him to plead guilty to wire fraud which Petitione
r argues was not supported by the facts;
2) by not objecting to the Court’s loss determination; 3)
by not properly opposing the Court’s
abuse of trust enhancement; and 4) in allowing Petitione to sign
r
a plea agreement which included
an appellate waiver.

Petitioner first claims that his counsel failed to properly infor
m of the

elements of the crime of wire fraud such that he could deter
mine that the facts did not support the
charge. Petitioner claims that “had I known the US Attorney
had the burden of proving to a jury
that I participated in a scheme to defraud Ameripay clients, had
the requisite intent to do so, and
in furtherance of the fraud, caused interstate ‘wire’ transmiss
ions, I would have rejected the guilty
plea.” Petitioner’s claim to ignorance is belied by the record
. The information with which
Petitioner was charged and which formed the basis of the
plea agreement clearly sets out the
elements of wire fraud. (Information p. point 3). Duri
,
3
ng the plea colloquy, Petitioner stated
on the record that he had received these materials, and had discu
ssed them to his satisfaction with
his attorney. (Plea colloquy 8:7-19). Petitioner also stated
that he had a clear understanding of
the offer. (Id. 9:2-5). Further, Petitioner informed the cour
t that he had discussed the wire

fraud

charge with his attorney. LId. 13:9-15).
As to Petitioner’s contention that he was unaware of the Gov
ernment’s burden, this Court
informed defendant of this right prior to his guilty plea.
(Id. 19:17-24). Likewise, this Court
clearly described the essential elements that would need
to be proven by the Government had
Petitioner proceeded to trial:

10

They would have had to prove to a jury beyond a reasonabl
e doubt
that at least two people agreed to commit the offense of wire
fraud,
that you were a party to or member of that agreement, and
that you
joined that agreement or conspiracy knowing of its objective
[.]
With regard to the actual charge or the substantive charge
of
wire fraud, they would have had to prove that someone
devised or
intended to devise a scheme or an artifice to defraud anot
her person
or entity of money or property, that you knowingly and
willfully
participated in that scheme or artifice with the specific
intent to
defraud another of money or property, and that for the purp
ose of
executing or attempting to execute that scheme, the use of
interstate
wires was involved[.]
(Id. 26:7-25).

In response to this thorough explanation, Petitioner stated
that he understood the Government’s
burden in his case.

(Id. 27:2-4).

Petitioner thereafter admitted to the recitation of facts

establishing the crime of wire fraud, including his involvem
ent with Ameripay, Ameripay’s
solicitation of business from public entities, the agreemen
t between himself and Arthur Piacentini
to divert “millions of those dollars to satisfy the payr
oll obligations” of other clients, and
petitioner’s involvement in the solicitation and improper use
of investor funds by the Sherbourne
entities under petitioner’s controls, as well as Petitioner’s willful
participation in that scheme. (Id.
27:18-29:6). The Government thereafter stated that it “wou
ld be able to prove that the use of
interstate wires were used to solicit Sherbourne investors
” in connection with the fraud. (Id.
29:19-22). It was only after these facts were admitted by Petit
ioner and established on the record
that Petitioner pled guilty.
These facts clearly establish that, prior to his plea of guilty,
Petitioner was fully aware of
the elements of a wire fraud charge, including the use
of interstate wires, that he had discussed
them with his attorney, and that he understood the nature
of the charges and the facts which
11

supported them. Petitioner’s claim that he was unaware and
would have made a different choice
had his attorney properly informed him is therefore based on
a false presumption of Petitioner’s
ignorance, and is therefore meritless. As Petitioner’s first claim
of ineffective assistance is based
on facts unsupported by the record, petitioner has failed to show
how counsel’s representation fell
below the objective standard of performance as required by Stric
kland.
Petitioner next argues his counsel was ineffective in stipulatin
g to the amount of loss and
failing to object to the loss amount during sentencing. This
claim, too, is contrary to the facts in
the record. The record reveals that, although there was a stipu
lation as to loss amount, defense
counsel retained the right to argue for a lower loss amount, whic
h he did at length during both the
PSR preparation and during sentencing. (Sentencing Tr. 17:1522, 18:17-27:7). Petitioner also
claims that counsel should have objected to the Governm
ent’s calculation of loss taken from the
PSR.

This argument does not take into account the extensive argu
ments counsel made on

petitioner’s behalf as to the loss calculation, and appear to be base
d on a misunderstanding of the
requirements of U.S. S .G.

§ 281 .1.1 Petitioner provides no context nor argument regarding how

his counsel failed to meet the objective standard of reasonabl
e representation. Given counsel’s
zealous representation of petitioner’s calculation of loss at
the sentencing hearing, the record
establishes that counsel did not fail to represent petitioner’s inter
est as to loss calculation, and that
counsel’s performance was well “within the wide range of
reasonable professional assistance.”

Petitioner argues that “Loss” should have been solely calcu
lated as “intended loss” and not actual
loss, whereas the guideline states that “loss is the greater of actua
l loss intended loss.” U.S.S.G.
§ 2b 1 1, cormiient 3. Petitioner’s arguments regarding the Court’s acceptance of the PSR figur
e
fails to account for the guideline’s statement that “The Cou need
rt
only make a reasonable estimate
of the loss. The sentencing judge is in a unique position
to assess the evidence and estimate the
loss based upon that evidence.” Id. at comment 3(C).
12

Strickland, 466 U.S. at 689.2
Petitioner next argues that his counsel was ineffective in
not objecting to the PSR’s
suggestion, and this Court’s conclusion, that the abuse of trust
enhancement applied

to Petitioner’s

case given his positions in Ameripay and the Sherbourne entitie
s. This claim, too, is contradicted
by the record.

During sentencing, Petitioner’s counsel argued against the
abuse of trust

enhancement, arguing the very points raised by Petitioner here:
that Petitioner’s role in Ameripay
was limited, that he did not engage in the keeping ofthe books ofthe

company, and that Petitioner’s

role in the creation of the loss was limited, arguing that petitio
ner’s role was one of “nonfeasance”
rather than malfeasance. (Sentencing Tr. 27:21-29:13). Thus,
as counsel argued against the
abuse of trust enhancement, Petitioner’s base assertion that counse
l should have done more is
insufficient to establish that counsel’s representation fell below
an objective standard of
professional competence.
As to the loss and abuse of trust arguments, one should note that
even if Petitioner could
prove the first prong of the Strickland test, ineffectiveness, he would
be patently unable to prove
prejudice.

Even had counsel been successful and this Court found that Petitio
ner had caused a

loss less than seven million dollars, and that he had not abused
the trust of his investors/clients,
the guideline recommended sentence for his lower offense level (26)

would still have been between

63 and 78 months, well above the sixty months to which Petitio
ner was already sentenced.
Indeed, that Petitioner’s counsel was able to obtain a sentence
well below the guideline range
2

Petitioner also claims that counsel failed to raise the loss
calculation issue on appeal. On
Appeal, the Third Circuit considered and rejected petitioner’s
arguments regarding loss amount,
finding such claims barred by the appellate waiver in the
plea agreement. As such, petitioner’s
claim that he was unable to contest loss on appeal appears to
be inaccurate as well. See Bultmeyer,
483 Fed. Appx. at 752-53.
13

found by this court suggests that no prejudice resulted from
his representation at sentencing.
Petitioner’s final claim of ineffective assistance arises
out of the appellate waiver and
related stipulations in his plea agreement.

Petitioner argues that the mere fact that such an

appellate waiver was permitted in and of itself is tantamou

nt to ineffective assistance. Petitioner’s

argument is predicated on his assumption that this Court
would have accepted the PSR’s finding
as to loss regardless of its reasonableness. Petitioner’s
argument is flawed in so much as his
counsel negotiated a plea agreement in which the appellate
waiver was limited only to the loss
amount, and even then only applied if the PSR conclude
d that the amount of loss was over $7
million and this Court accepted that number. Petitioner’s
plea agreement allowed him to contest
the loss amount at both the PSR stage and during sentencing prop
er, which his attorney did. Given
the common nature of appellate waivers, often much more broa
d than the one at issue here, and
the Third Circuit’s previous holdings that such waivers are
not contrary to public policy and are
acceptable practice, as well as plaintiff’s knowing and volu
ntary acceptance of the waiver as
previously discussed, the record contains no evid
ence that counsel acted unreasonable in
negotiation and recommending the plea agreement. See
Mab,y, 536 F.3d at 236-39. As
petitioner’s assertions fail to prove that counsel’s actions
fell outside of the wide range of
reasonable professional conduct, petitioner has failed to prov
e the first prong of the Strickland test.
466 U.S. at 689. The Court therefore need not reach the
question of what prejudice, if any, may
have resulted had petitioner’s counsel been deficient in nego
tiating the plea.

14

5. Abuse of Trust
Petitioner next argues that the Court improperly found the
Abuse of Trust enhancement to
be applicable to his sentence under US.S.G.

§ 3B1.3. “Errors in the implementation of the

Sentencing Guidelines are generally not cognizable
in a collateral attack.” United States v.
Ruddock, 82 Fed. Appx. 752, 758 (3d Cir. 2003), see also
United States v. Cepero, 224 F.3d 256,
267-68 (3d Cir. 2000), abrogated in part on other grou
nds, Gonzalez v. Thaler, 132 S. Ct. 641
(2012). Such an alleged misapplication would only be
appropriate in a collateral attack in the
event that the allegations presented a constitutional issue
. Ruddock, 82 Fed. Appx. at 758. In
support of his assertion that a constitutional error occurred
in his case, petitioner argues that the
Court’s holding in United States v. Alleyne, 133 S. Ct. 2151
(2013), required that the abuse of trust
question be submitted to a jury.

Petitioner’s reliance on Alleyne, however, is misplaced
.

Alleyne’s holding requires that those facts which incre
ase the prescribed range (the statutory
minimum and maximum of an offense) are elements of
the crime and must therefore be proven
beyond a reasonable doubt. Id. at 2160. Petitioner’s claim
s deal only with an alteration in the
recommended sentence under the Sentencing Guideline
s, and have no impact on the statutory
minimum or maximum sentence for a wire fraud conv
iction. Petitioner’s allegations regarding
abuse of trust are therefore not cognizable in this habeas petit
ion.
Even were petitioner’s claim cognizable, the facts of this
clearly establish that the Abuse
of Trust enhancement was appropriate. Such an enha
ncement is appropriate in situations where
“a defendant abused a position of public or private trust
, or used a special skill, in a manner that
significantly facilitated the commission or concealment
of the offense.” U.S.S.G. § 3B1.3. To
find abuse of trust, a court must find that the defendant was
in a position of trust, and that he abused
15

that position to significantly facilitate the crime. United State
s v. Nathan, 188 F.3d 190, 196 (3d
Cir. 1999). Three considerations apply in making that deter
mination: “1) whether the position
allows the defendant to commit a difficult-to-detect wrong;
2) the degree of authority which the
position vests in [the] defendant vis-a-vis the object of the
wrongful act; and 3) whether there has
been reliance on the integrity of the person occupying the posi

tion.” United States v. Starnes, 583

F,3d 196, 217 (3d Cir. 2009). As the Third Circuit found
on direct appeal, the facts of this case
clearly establish that the abuse of trust enhancement was appr
opriate:
Bultmeyer argues that he was not in a position of trust beca
use he
was not an owner of Ameripay, did not manage the dayto-day
operations of the company, did not have access to the book
s, and
had no means of verifying distributions. While Bultmey
er sold his
ownership interest in Ameripay, he was still in a position
of trust.
Indeed, at Ameripay, Bultmeyer was in charge of the timin
g and
amount of payments due to the IRS. As such, he was in a
position
of trust with Ameripay clients and responsible for the trans
actions
at the heart of the fraud. Further, he was the principal own
er of
Sherbourne Entities and used his position to solicit inve
stors to
funnel money to Ameripay.
3
Bultmever, 483 Fed. Appx. at 753.
Thus, the Court’s abuse of trust finding provides petitione
r no grounds for relief.

6. The Reasonableness of Petitioner’s Sentence

Petitioner’s also claims that the court’s sentence of 60-m
onths was subjectively and
objectively unreasonable.

Criminal sentences are reviewed for reasonablenes
s, which

While petitioner takes issue with the Third Circuits’ char
acterization that Sherboume “funneled”
money to Ameripay. As the facts established that, rathe
r than invest the money entrusted to as
promised, petitioner instead loaned their money to Ame
ripay, the Circuit Court’s characterization
is accurate.
16

encompasses both a procedural and a substantive com
ponent. United States v. Wise, 515 F.3d
207, 217-18 (3d Cir. 2008). A sentence is procedur
ally reasonable where the sentencing court
calculates the Sentencing Guidelines range, does not
treat that range as mandatory, properly
considers the appropriate sentencing factors under 18 U.S.C.

§ 3553(a), determines its sentence on

the basis of established facts, and adequately explains its
chosen sentence, including any deviation
from the Guidelines range.

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009).
If the

sentence is procedurally sound, it is then reviewed for subs
tantive reasonableness, which requires
consideration of the totality of the circumstances. Id.
The “touchstone of ‘reasonableness’ is
whether the record as a whole reflects rational and mean
ingful consideration of the factors
enumerated in 18 U.S.C. § 3553(a).” Id. at 568 (quoting
United States v. Grier, 475 F.3d 556,
571 (3d Cir. 2007)).
Petitioner’s sentence in this case was entirely reasonabl
e. As the Third Circuit found on
direct appeal,
while Bultmeyer may disagree with the weight the Dist
rict Court
gave to [the § 3 553(a) factors], we conclude from our revie
w of the
record that the District Court thoroughly considered argu
ments from
both parties. Indeed, the District Court granted a
downward
departure based on [petitioner’s] mitigating factors,
while also
recognizing that [petitioner] was involved in the fraud for
a number
of years and the losses to clients were staggering.
Bultmeyer, 483 Fed. Appx. at 753-54.

Petitioner also claims that his sentence was unreasonable
because he received a sentence of sixty
months, while his co-defendant received a sentence
of thirty months. This argument, too, was
heard and rejected by the Third Circuit, which found that
“[t]his disparity does not. demonstrate
.

.

an abuse of discretion. As stated above, the District Court
considered all relevant factors before
17

sentencing Bultmeyer.” Id, at 754. The sentencing transcript
in this case clearly establishes that
this Court carefiully considered the relevant factors, as well
as the arguments of counsel and
supplied documents, in sentencing petitioner to sixty months.
As such, “the 60-month sentence
imposed by the District Court was reasonable.” Id.

7. Judicial Bias

Petitioner also raises a claim of purported judicial bias, a claim he
has not previously raised.
“When issues are either not set forth in the statement of issues presen
ted or not pursued in the
argument section of [an appellate brief], the appellant has abandoned
and waived those issues on
appeal.” United States v. Ruddock, 82 Fed. Appx. 752, 757 (3d Cir.
2003). When such a waived
or abandoned claim is raised for the first time in a §22 55 motion,
“a district court must apply a
‘cause and actual prejudice’ standard” to determine whether ground
s exist to permit a petitioner to
raise those points in a habeas proceeding. Rudow v. United States,
Civil Action No. 11-5741,
2012 WL 2891075, at *2 (D.N.J. July 16, 2012).

Thus, to succeed on a defaulted claim, a

petitioner must “show both (1) ‘cause’ excusing his

.

.

.

procedural default, and (2) ‘actual

prejudice’ resulting from the errors of which he complains.” United
4
States v. DeRewal, 10 F.3d

While i’vlurrav v. Carrier provides an exception to the cause and actual
prejudice standard in
cases “where a constitutional violation has probably resulted in
the conviction of one who is
actually innocent,” that exception is not applicable here. See
477 U.S. 478, 496 (1986).
Although petitioner claims he did not commit wire fraud in his motion
, this claim is contradicted
by the evidence in the record, including his own admissions during
his plea colloquy, and his
dubious claim of bias fails to present a constitutional deficiency
that “probably resulted” in the
conviction of an innocent. At any rate, plaintiff provides no eviden
ce or argument that there is “a
fair probability that, in light of all the evidence
the trier of fact would have entertained a
reasonable doubt of his guilt” as required to demonstrate actual
innocence. See Kuhlmann v.
Wilson, 477 U.S. 436, 454-5 n. 17 (1986).
.

18

.

.

100, 103 (3d Cir. 1993). A showing of “cause” requires that
a petitioner demonstrate “some
objective factor external to the defense that impeded his or
her ability to raise the issue on direct
appeal.” Rudow, 2012 WL 2891075, at *2; see also Colem
an v. Thompson, 501 U.S. 722, 753
(1991). “The mere fact that counsel failed to recognize the
factual or legal basis for a claim, or
failed to raise the claim despite recognizing it, does not constit
ute cause for a procedural default.”
Murray, 477 U.S. at 486.
Petitioner fails to establish cause sufficient to permit him to
raise this claim in his habeas
petition. Petitioner merely claims that the trial judge lived within
one of the towns affected by
his fraud, and fails to provide anything external to his defense that
prevented him from raising this
argument prior to his habeas petition. As Petitioner makes no
effort to present cause as to why
this claim was not previously raised, he may not raise that claim

here. Rudow, 2012 WL 2891075,

at *3 (citing Anderson v. United States, 959 F.2d 233 (6th Cir.
1992).

8.

Petitioner’s Allegations of an Apprendi/Alleyne violation

Petitioner’s final argument for habeas relief is that this Court
erred in finding abuse of trust
and a loss amount in excess of seven million dollars in so much

as these facts were neither admitted

by Petitioner nor found by a jury. Petitioner argues that, under Appren
di v. New Jersey, 530 U.S.
466 (2000), and Alleyne, such findings increased the applicable
range of sentences under the
guidelines and therefore were elements that needed to be proven
beyond a reasonable doubt or
admitted. Petitioner’s argument, as discussed above in regard
to the loss amount calculation, are
misguided. Neither the abuse of trust nor loss amount finding
s altered the statutory minimum or
maximum penalty for conspiracy to commit wire fraud.
19

Both findings were aspects of a

Sentencing Guidelines calculation designed to produce a recommended
sentence. As the Third
Circuit has held, “Allevne did not curtail a sentencing court’s
ability to find facts relevant in
selecting a sentence within the prescribed statutory range.” United
States v. Smith, 751 F.3d 107
117 (3d Cir. 2014). “Factual findings for purposes of applying
the Guidelines, which influence
the sentencing judge’s discretion in imposing an advisory Guidel
ines sentence and do not result in
imposition of a mandatory minimum sentence, do not violate
the rule in Alleyne.” United States
v. Freeman, 763 F.3d 322, 335 (3d Cir. 2014). Here, the trial
court found the facts Petitioner
decries as part of its advisory Guidelines calculation, and advisory
sentence from which the Court
decided to depart downward. As such, the facts that Petitioner
challenges are not subject to
Apprendi or Alleyne, and thus were properly found by this
Court without a jury finding or
admission by Petitioner. Id. Petitioner has therefore not shown ground
s for habeas relief.

III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal
from the final order in a
proceeding under §225 5 unless the petitioner has “made a substa
ntial showing of the denial of a
constitutional right. “A petitioner satisfies this standard by
demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutiona
l claims or that jurists could
conclude that the issues presented here are adequate to deserve encour

agement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As Petitio
ner has failed to make a substantial
showing that he was denied a constitutional right, no certific
ate of appealability shall issue.

20

IV. CONCLUSION
For the reasons stated above, Petitioner’s motion is DEN
IED, and no certificate of
appealability shall issue. An appropriate order follows.

Dated
—

i1—

(L

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Hçp Jose L. Linares, U.S.D.J.

21

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