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United States of America v. Kenneth Welch

March 15, 2011

UNITED STATES OF AMERICA
v.
KENNETH WELCH



The opinion of the court was delivered by: Gene E.K. Pratter, J.

MEMORANDUM

Invoking 28 U.S.C. § 2255, Kenneth Welch seeks a reduction of the sentence the Court imposed following his conviction by a jury of conspiracy to defraud the United States government by submitting false claims to the Internal revenue Service and 35 counts of false claims to the Internal Revenue Service. Because his challenge raises no arguments not previously addressed -- and rejected -- by this Court and abandoned before or rejected by the Court of Appeals, Mr. Welch's Motion (Doc. No. 182) is denied.

Background

The grand jury indicted Mr. Welch and his co-defendant for violations of 18 U.S.C. §§ 286 and 287, as well as aiding and abetting. The pair unsuccessfully challenged the language of the indictment for a failure to charge materiality and Mr. Welch also filed a number of motions in limine on certain evidence issues that also were denied. After the jury returned guilty verdicts as to both defendants, Mr. Welch filed a Rule 29 motion that was denied.

On November 16, 2007, following issuance of notice of the Court's consideration of an upward departure and/or enhancement pursuant to various guideline provisions relating to the sophisticated means used by Mr. Welch for the criminal conduct at issue as well as to identity fraud, the Court conducted a lengthy sentencing hearing. The Court determined that Mr. Welch had earned a sentence of incarceration for 120 months on the conspiracy count and 60 months for each of the remaining counts, to be served concurrently. In addition, Mr. Welch's sentence included 3 years of supervised release, a $145,525 restitution order and a $3,600 special assessment. The Court did not impose a financial fine. Having determined that, under the guidelines, Mr. Welch had a total offense level of 26 and, due to an extensive criminal history marked by numerous convictions for fraud, a criminal history category of VI, the Court imposed a period of imprisonment at the bottom of the 120 to 150 month Guideline range.

Mr. Welch's conviction was affirmed by the Court of Appeals, United States v. Saybolt, 577 F.3d 195 (3d Cir. 2009), and his petition of certiorari to the Supreme Court was denied, Welch v. United States, 130 S. Ct. 1107 (2010). He timely filed this petition for collateral review.

Discussion

Mr. Welch argues that his sentence should be reduced because:

1. His criminal history category of VI over-represented the seriousness of his prior crimes;

2. He was old enough that he would be unlikely to continue to commit crimes;

3. The Guideline § 3B1.1(a) (role in the offense) and § 2B1.1(b)(9)(c) (sophisticated means) enhancements were imposed in error; and

4. Admission of evidence at trial of his prior crimes was an abuse of discretion.

As discussed below, these four issues were either already litigated unsuccessfully on appeal or abandoned in that appellate proceeding. For the issues raised in Mr. Welch's § 2255 petition that were abandoned on appeal, Mr. Welch's § 2255 motion premised on these issues is unavailing unless he can show that failure to raise them on appeal was the result of ineffective legal counsel and caused him actual prejudice. United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000); United States v. DeRewal, 10 F.3d 100, 103-05 (3d Cir. 1993) (discussing the "cause and prejudice" standard articulated in United States v. Frady, 456 U.S. 152, 167-68 (1982), under which procedural defaults are analyzed). In other words, it is incumbent upon Mr. Welch to show that the failure to raise these issues on appeal rises to the level of a constitutional deprivation. Strickland v. Washington, 466 U.S. 668 (1984). This he cannot do.

Regarding Mr. Welch's argument that guideline enhancements were imposed in error, "[i]t is well settled that a petitioner generally may not relitigate issues that were decided adversely to him on direct appeal by means of a Section 2255 petition." Sonneberg v. United States, No. 01-2067, 2003 WL 1798982 (3d Cir. Apr. 4, 2003) (citing DeRewal, 10 F.3d at 105 n.4). Mr. Welch presented the sentencing issues of sophisticated means and role in the offense to the Court of Appeals, which rejected them. United States v. Saybolt, ...


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