William A. Bischoff v. United States of America

2019 DNH 104

• Court: District Court, D. New Hampshire
• Decided: July 1, 2019
• Docket: 19-cv-681-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William A. Bischoff

v. Civil No. 19-cv-681-JD Opinion No. 2019 DNH 104 United States of America

O R D E R

William A. Bischoff, proceeding pro se, seeks relief from

his sentence under 28 U.S.C. § 2255.1 A prisoner in federal

custody may move in the court that imposed the sentence “to

vacate, set aside or correct the sentence.” § 2255(a). “The

clerk must promptly forward the motion to the judge who

conducted the trial and imposed sentence.” Rule 4(a), Rules

Governing Section 2255 Proceedings. The judge must then examine

the motion, and “[i]f it plainly appears from the motion, any

attached exhibits, and the record of prior proceedings that the

moving party is not entitled to relief, the judge must dismiss

the motion and direct the clerk to notify the moving party.”

Rule 4(b).

“Summary dismissal of a § 2255 [motion] is appropriate if

it plainly appears from the face of the motion that the movant

1 Bischoff initiated his case with a motion to vacate his sentence under § 2255 (document no. 1) and, at the same time, filed a separate motion to reduce his sentence (document no. 2). The motions are considered together. is not entitled to relief.” Carey v. United States, 50 F.3d

1097, 1098 (1st Cir. 1995). That is, a § 2255 motion must be

summarily dismissed if the “allegations, accepted as true, would

not entitle the [moving party] to relief.” Dziurgot v. Luther,

897 F.2d 1222, 1225 (1st Cir. 1990). Further, a section 2255

motion “is subject to dismissal, without an evidentiary hearing,

if the grounds for relief either are not cognizable under

section 2255 or amount to mere bald assertions without

sufficiently particular and supportive allegations of fact.”

Barrett v. United States, 965 F.2d 1184, 1186 (1st Cir. 1992);

see also Godfrey v. United States, 255 F. Supp. 3d 247, 252 (D.

Mass. 2017).

Bischoff was charged with wire fraud, Count I, and

willfully failing to file individual federal income tax returns,

Count II. He pleaded guilty to both charges pursuant to a plea

agreement under Federal Rule of Criminal Procedure 11(c)(1)(C).

As such, the plea agreement was binding on the court. Hughes v.

United States, 138 S. Ct. 1765, 1773 (2018).

The plea agreement included a sentencing stipulation that

an appropriate sentence would be 48 months unless he deposited

into the court’s registry, before sentencing, $1,000,000 or more

toward his anticipated restitution order. If the deposit were

made, "a lesser term of incarceration, but under no

2 circumstances not less than 24 months, may be appropriate." See

United States v. Bischoff, 17-cr-196-JD, doc. no. 6, at ¶ 6

(D.N.H. Jan. 12, 2018). Emphasis added.

The presentence investigation report calculated the

applicable guideline sentencing range at 78 to 97 months. The

restitution amount was calculated to be $5,647,446.33 on Count I

and $568,845 on Count II. Bischoff filed a signed

acknowledgement that he had received, reviewed, and understood

the sentencing options presented in the presentence

investigation report. He then filed an unopposed motion for a

non-guideline sentence of 48 months, noting that he had not been

able to make the restitution payment necessary to reduce the

sentence. He stated that he did not contest the calculation of

the restitution amounts. His motion for a non-guideline

sentence was granted.

Bischoff was sentenced to 48 months on Count I and 12

months on Count II, to be served concurrently, making his

sentence 48 months of imprisonment, a non-guideline sentence.

Restitution was ordered in the amounts of $5,647,446.31 on Count

I and $568,845 on Count II. Judgment was entered accordingly on

June 20, 2018.

In his § 2255 motion and his motion to reduce his sentence,

Bischoff argues that his sentence should be reduced to time

3 served or 24 months. He states that the requirement of making a

deposit toward his restitution obligation to be considered for a

lower sentence constitutes “economic disparity between rich and

poor” and “is clearly unconstitutional.” Doc. 1, ¶ 12. He also

contends that the government miscalculated the losses in the

case, ignored the new definition of intended loss under

Amendment 792 to U.S.S.G. § 2B1.1(b), and miscalculated his

guideline range, which caused him to have a longer sentence than

he would otherwise have had. He also argues that his sentence

is longer than sentences imposed in other economic fraud cases.

As is noted above, Bischoff pleaded guilty in an

11(c)(1)(C) plea agreement, which was binding on the court if

the court accepted the agreement. He and the government

stipulated to the sentencing provision for the possibility of a

shorter sentence based on whether he made the agreed deposit

toward his restitution obligation. Therefore, because Bischoff

agreed in the plea agreement to the non-guideline sentence, with

the stipulated condition for reducing the time of imprisonment,

no constitutional violation occurred.

In addition to the plea agreement, Bischoff moved for a

non-guidelines sentence of 48 months. That sentence was far

lower than the guideline range. His motion was granted; and he

was sentenced to 48 months of imprisonment in accordance with

4 the plea agreement. No error occurred in calculating his

sentence or the amount of restitution because he received a non-

guideline sentence, and he agreed to the amount of restitution.

The defendant received the full benefit of the bargain he struck

with the government.

The court has examined Bischoff’s motions and concludes

that Bischoff is not entitled to relief. Rule 4(a).

Conclusion

For the foregoing reasons, Bischoff’s motion to vacate

sentence (document no. 1) and his motion to reduce his sentence

(document no. 2) are denied.

Because Bischoff has not made a substantial showing of the

denial of a constitutional right, no certificate of

appealability shall issue. See 28 U.S.C. § 2253(c)(2).

The clerk shall enter judgment accordingly and close the

case.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

July 1, 2019

cc: William A. Bischoff, pro se