IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
February 20, 2009
UNITED STATES OF AMERICA
FREDERICK H. BANKS
The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
Frederick Banks ("Defendant") has filed a motion entitled "Motion to Dismiss or in the Alternative Re-sentence for Lack of Subject Matter Jurisdiction Fed.R.Crim.Pro 12(b)(3),"*fn1 in which he argues that his equal protection rights arising from the due process clause of the Fifth Amendment to the United States Constitution were violated by the sentence imposed in this case. (See Docket No. 577, "the Motion," at 1-2.)
At trial, Defendant was found guilty of eight counts of mail fraud in violation of 18 U.S.C. § 1341. On March 13, 2006, he was ordered to pay $15,100.10 in restitution and sentenced to a period of 63 months imprisonment to be served consecutively to a 60-month sentence he was already serving for a prior conviction. Defendant argues he was sentenced more severely than white defendants who had been convicted of the same or similar crimes of fraud simply because he is a member of three protected classes, i.e., Lakota Sioux Native American Indian, African-American, and "mulatto." This discrimination, he contends, was "not simply incidental, it was purposeful and intentional." (Motion at 4.) Consequently, Defendant argues that an evidentiary hearing must be held and his case dismissed with prejudice; alternatively, his sentence should be reduced to time served.
The Court need not address the question of whether Defendant has raised a valid Constitutional claim because the cases on which he relies for his argument of racial discrimination in sentencing are entirely unpersuasive. Defendant identifies six cases arising in this Circuit, each allegedly involving a white defendant whose fraudulent activity was greater than his, but whose sentences, by Defendant's calculations, were proportionately less: United States v. Hawes, 523 F.3d 245 (3d Cir. 2008);*fn2 United States v. Komolafe, No. 06-1683, 2007 U.S. App. LEXIS 21022 (3d Cir. Aug. 31, 2007); United States v. Williams, 299 F.3d 250 (3d Cir. 2002); United States v. Tichell, 261 F.3d 348 (3d Cir. 2001); Regano v. United States, CR No. 06-3091, 2008 U.S. Dist. LEXIS 31855 (N.D. Ohio Apr. 17, 2008);*fn3 and United States v. Smith, CR No. 06-86, 2007 U.S. Dist. LEXIS 34391 (W.D. Pa. May 10, 2007).
The cases relied upon by defendant do not reflect the defendant's race or ethnic origin. Therefore, these cases do not support Defendant's argument while the pleadings of a pro se litigant are to be construed liberally, this Court is not required to credit his "bald assertions" or "legal conclusions." Day v. Fed. Bureau of Prisons, No. 06-3911, 2007 U.S. App. LEXIS 9927, *2 (3d Cir. Apr. 30, 2007), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Defendant's motion now pending at Docket No. 577 is therefore denied in its entirety.