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MUNGER v. UNITED STATES

November 27, 1992

BRIAN SCOTT MUNGER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: THOMAS J. MCAVOY

 MEMORANDUM DECISION AND ORDER

 I. INTRODUCTION

 Brian Scott Munger petitions this court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth in this Memorandum Decision and Order, the petitioner's motion is denied.

 II. BACKGROUND

 In response to the Grand Jury's eight (8) count Indictment (90-CR-294) charging petitioner with violations of 18 U.S.C. § 241 (conspiracy against civil rights); 42 U.S.C § 3631(b)(1) (interference with housing rights by means of force or threat of force resulting in bodily injury); and 18 U.S.C. § 844(h)(1) (use of fire in the commission of a felony), petitioner pleaded guilty to Count III of the Indictment on January 14, 1991. Count III charged that petitioner Munger:

 By force and threat of force, that is by placing a cross in front of the residence of [the victim] *fn1" and setting fire to the cross, and by physically assaulting [the victim], did willfully injure, intimidate and interfere with [the victim] and attempt to injure, intimidate, and interfere with [the victim], a black male, because of his race and color and in order to intimidate [the victim] from occupying the [victim's] dwelling . . ., with his white wife, without discrimination on account of race, resulting in bodily injury to [the victim] in violation of Title 42 USC, Section 3631(b)(1).

 90-CR-294 at p.4.

 The uncontroverted presentence report prepared in connection with petitioner's sentencing contains a recitation of facts in connection with the incident underlying the petitioner's indictment. These facts are completely consistent with the allegations contained in Count III of the Indictment.

 In summary, the recitation indicates that on August 26, 1990, Mr. Munger, along with certain co-defendants, stood outside the residence of an interracial couple in Gansevoort, New York, and shouted racial slurs, curses, and threats. In addition, the group brandished a noose. After witnessing these events, the occupants notified the Saratoga County Sheriff's office which responded, spoke briefly with the petitioner and the occupants, and then departed.

 Thereafter, the petitioner erected and set afire a cross directly across the street from the interracial couple's dwelling. The husband then approached the burning cross with an axe purportedly to demolish it before his young daughter saw it. At this point an altercation ensued between the petitioner, his codefendants, the husband, and various bystanders. The altercation ended with the couple fleeing into their home pursued by the petitioner who screamed death threats and obscenities. At some point the petitioner punched his arm through a glass window in his attempts to reach the couple.

 Sheriff's deputies returned to the scene and order was eventually restored. The husband sought treatment at Saratoga Hospital the next day for injuries received during this incident. The petitioner was then arrested by the Saratoga County Sheriff's Office and charged under state law with assaulting the husband. The state charges were dropped in light of the aforementioned federal indictment of petitioner Munger.

 The petitioner entered the above described plea of guilty on April 12, 1991. At this time the Court sentenced the petitioner to term of imprisonment of 46 months calculated pursuant to the provisions of the United States Sentencing Guidelines. At sentencing, the petitioner raised no objection to either the calculation of his Adjusted Offense level or the ...


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