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PIERVINANZI v. U.S.

March 28, 2001

MICHAEL PIERVINANZI, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Leisure, District Judge:

  OPINION AND ORDER

Petitioner Michael Piervinanzi moves for a reduction in his sentence pursuant to 28 U.S.C. § 2255. Piervinanzi argues that a change in the law entitles him to a downward departure from the United States Sentencing Guidelines' range which applied to his offenses. For the following reasons, Piervinanzi's petition is denied.

BACKGROUND

The Second Circuit has previously discussed the facts underlying Piervinanzi's conviction and the procedural history of this case. See United States v. Piervinanzi, 23 F.3d 670 (2d Cir. 1994). Therefore, only the facts relevant to Piervinanzi's petition are recited herein. In 1988, Michael Piervinanzi and several others participated in two schemes to illegally transfer more than $38 million out of American banks into overseas accounts. The first scheme involved the attempted fraudulent wire transfer of $14.2 million from Irving Trust Company into accounts in the Cayman Islands. When that scheme failed, Piervinanzi and his co-conspirators attempted another fraudulent wire transfer of $24 million from Morgan Guaranty to an account in London. This plan also failed. See id. at 672-74.

On May 17, 1991, after an eleven day jury trial, the jury returned a verdict convicting Piervinanzi of the following seven counts: (1) conspiracy to commit wire fraud, bank fraud, and money laundering in violation of 18 U.S.C. § 371; (2) attempted bank fraud in violation of 18 U.S.C. § 1344 and 2; (3) attempted money laundering in violation of 18 U.S.C. § 1956(a)(2) and 2; (4) wire fraud in violation of 18 U.S.C. § 1343 and 2; (5) attempted bank fraud in violation of 18 U.S.C. § 1344 and 2; (6) attempted money laundering in violation of 18 U.S.C. § 1956(a)(2) and 2; and (7) money laundering in violation of 18 U.S.C. § 1957(a) and 2. Piervinanzi was tried and sentenced with co-conspirator Daniel Tichio, who was also convicted of Counts One, Two, and Three. This Court sentenced Piervinanzi to concurrent terms of 210 months imprisonment on each of the seven counts of conviction, well within the applicable United States Sentencing Guidelines' (hereinafter "Guidelines") range of 188 to 235 months. See June 23, 1992 Sentencing Transcript (hereinafter "June 23, 1992 Sent. Tr.") at 58.

At sentencing, both Piervinanzi and Tichio argued for downward departures on a number of grounds, including the claim that their conduct fell outside of the "heartland" of money laundering offenses, and therefore, should simply be sentenced as bank fraud. This Court rejected that argument and found that Piervinanzi's conduct constituted a heartland case for a money laundering offense. See id. at 55.

On appeal, Piervinanzi did not argue for a downward departure, but instead argued that his money laundering activities should have been merged with his underlying bank fraud charge, thereby precluding liability under 18 U.S.C. § 1956(a)(2). The Second Circuit, however, found Piervinanzi's argument meritless and held that "attempting to fraudulently transfer funds out of the banks was analytically distinct from the attempted transmission of those funds overseas, and was itself independently illegal." Piervinanzi, 23 F.3d at 679. Although Piervinanzi did not argue for a downward departure based on his activity falling outside of the "heartland" of money laundering cases, Daniel Tichio did raise this issue on appeal. Addressing Tichio's claim, the Second Circuit concluded that it was without authority to consider this Court's discretionary decision not to depart downward. See id. at 685.

On May 2, 1994, the Second Circuit reversed Piervinanzi's conviction on Count Seven and remanded the case for resentencing because the 210 month sentence exceeded the statutory maximum of five years for Counts One, Two, Four, and Five. See id. at 676. On September 27, 1994, this Court resentenced Piervinanzi to 188 months' imprisonment, the lowest possible sentence in his Guidelines' range. During this hearing, Piervinanzi asked the Court to consider the proposed amendments to the money laundering guidelines as a mitigating factor. The Court took them into account and lowered Piervinanzi's sentence by 22 months while noting that it would be willing to entertain the issue again if the Guideline amendments were adopted. See Sept. 27, 1994 Resentencing Transcript at 10.

In March of 1999, this Court resentenced Daniel Tichio and granted his request for a downward departure. However, this Court granted the departure solely because of Tichio's age, health and rehabilitation, not because Tichio's conduct fell outside of the heartland of money laundering activity. See March 10, 1999 Resentencing Transcript (hereinafter "March 10, 1999 Resent. Tr.") at 19.

On March 10, 2000, Piervinanzi filed the instant petition claiming that a change in the application of the law entitles him to a reduction in his current sentence.

DISCUSSION

1. Timeliness of the Petition

As a threshold issue, the Court must determine whether Piervinanzi filed this petition within the time limit prescribed by 28 U.S.C. § 2255. In April of 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (hereinafter "AEDPA"), which imposed a one-year period of limitations for the filing of petitions pursuant to 28 U.S.C. § 2255. See ...


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