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Senyszyn v. United States

June 4, 2010

RE: BOHDAN SENYSZYN
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: William J. Martini, U.S.D.J.

MARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE 50 WALNUT STREET, P.O. BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340

WILLIAM J. MARTINI JUDGE

LETTER OPINION

Dear Litigants:

This matter comes before the Court on the motion of pro se prisoner Bohdan Senyszyn ("Senyszyn" or "Petitioner") to vacate, set aside, or correct his plea-bargained sentence pursuant to 28 U.S.C. § 2255. There was no oral argument. Fed. R. Civ. P. 78. For the reasons stated below, the motion is DISMISSED WITH PREJUDICE and the relief requested therein is DENIED.

I. BACKGROUND

Petitioner was formerly employed as a Revenue Agent for the Internal Revenue Service ("IRS") in Paterson, NJ. (Presentence Report ("PSR") ¶ 16). Without the IRS's knowledge, Petitioner improperly held a second job, managing the financial affairs of a business owned by a friend. (Id. at ¶¶ 17, 19). In that capacity, Petitioner converted the company's funds for his own personal benefit and committed tax evasion. (Id. at ¶¶ 20-21, 25, 32, 43-44, 61, 65). In April 2006, a grand jury returned a seven- count indictment against Petitioner. (Respondent's Answer ("Resp. Ans.") at 4). A superseding indictment included an eighth count. (Id.)

On September 19, 2007, Petitioner and the Government executed a written plea agreement (the "Plea Agreement"). Pursuant to its terms, Petitioner agreed to plead guilty to a four- count superseding information charging him with (1) filing false returns while employed as an IRS revenue agent in violation of 26 U.S.C. § 7201 (Count 1); (2) tax evasion for tax year 2003 in violation of 26 U.S.C. § 7201 (Count 2); (3) structuring financial transactions in violation of 31 U.S.C. § 5324(a)(3) (Count 3); and (4) bank fraud in violation of 18 U.S.C. § 1344 (Count 4). (Plea Agreement at 1). In exchange for his guilty plea, the government agreed to dismiss the eight- count superseding indictment against him and to initiate no further charges against him or his wife. (Id.). The Plea Agreement also included several factual stipulations describing the nature of Petitioner's conduct, a waiver of the right to challenge those stipulations if they were accepted by the Court, and a waiver of Petitioner's right to file any appeal or collateral attack if his sentence fell within or below the Guidelines range that results from a Total Guidelines Offense Level of 23, which is 46 to 57 months. (Id. at 3-4, 12-13).

The following day, Petitioner appeared in court to enter a guilty plea to all four counts of the superseding information. (See Transcript of Plea Hearing (Sept. 20, 2007) ("Plea Hearing Trans.") at 2-3; Resp. Ans. at 6). The district judge questioned him to ensure that the plea was knowing and voluntary and that Petitioner was aware of his potential sentencing exposure. (Plea Hearing Trans. at 3-18; Resp. Ans. at 6-7). The Court was satisfied with Petitioner's answers, finding that Senyszyn was "fully competent and capable," and accepted the plea. (Plea Hearing Trans. at 24-25; Resp. Ans. at 8).

In December 2007, following the entry of his plea but prior to sentencing, Petitioner moved the Court to withdraw his guilty plea with respect to Count 2 (tax evasion) only, arguing that he was actually innocent of the conduct charged and had misunderstood the terms of the plea agreement. (See Petitioner's December 17, 2007 letter). The Court denied the motion to withdraw, finding that Petitioner's guilty plea had been made knowingly and voluntarily and that his proffer to the Court at that time met all the elements of tax evasion. (See Transcript of Sentencing Hearing (Feb. 21, 2008) ("Sent. Hearing Trans.") at 16-17; Resp. Ans. at 13). Petitioner appealed the denial to the Third Circuit, which affirmed the District Court. U.S. v. Senyszyn, 338 Fed.Appx. 201 (3d Cir. 2009). In affirming, the Third Circuit held that Petitioner failed to meet his substantial burden to meaningfully reassert his innocence. Id. at 7-9.

At sentencing, the Court calculated a total offense level of 22, a criminal history category of 1, and an advisory Guidelines imprisonment range of 41 to 51 months. (Sent. Hearing Trans. at 55; Resp. Ans. at 14). The Court then granted a downward departure resulting in a sentence of 34 months' imprisonment. (Sent. Hearing Trans. at 55-56; PSR ¶ 201; Resp. Ans. at 14). This was significantly less than the 46 to 57 month range defined as "reasonable" in the Plea Agreement's appellate waiver. (Resp. Ans. at 14).

Petitioner never directly appealed his sentence or conviction with respect to Counts 1, 3, and 4 of the superseding information. As described above, the only issue Petitioner raised on appeal was the denial of his motion to withdraw his guilty plea as to Count 2, which was denied by the Third Circuit. Senyszyn, 338 Fed.Appx. at 201. Presently before the Court is Senyszyn's petition pursuant to 28 U.S.C. § 2255, seeking to vacate, set aside, or correct his sentence. (See CM/ECF Docket Entry No. 1).

II. ANALYSIS

28 U.S.C. § 2255 provides that a prisoner in custody serving a sentence imposed by a federal court may move the court that imposed the sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255. However, the statute does not afford a remedy for all errors that may have been made at trial or at sentencing. United States v. Addonizio, 442 U.S. 178 (1979). Errors warranting modification must raise "a fundamental defect which inherently results in a complete miscarriage of justice." Id. at 185 (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). A prisoner can challenge his or her sentence on the grounds that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was ...


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