United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, CHIEF U.S. DISTRICT COURT JUDGE.
before the Court is Mark Alan Saltzer's Motion for Relief
(Civ. Dkt. 23) from the Court's December 8, 2015
Memorandum Decision and Order (Civ. Dkt. 14; Crim. Dkt. 53)
and Judgment (Civ. Dkt. 16; Crim. Dkt. 54) pursuant to
Fed.R.Civ.P. 60(b)(6). For the reasons discussed below, the
Court will dismiss the motion for lack of jurisdiction.
August of 2012, Mr. Saltzer was arrested and charged in state
court with ten counts of Sexual Exploitation of Children-each
of which carried a maximum punishment of thirty years in
prison. Dec. 8, 2015 Mem. Decision and Order at 1,
Civ. Dkt. 14. Mr. Saltzer's lawyer, Charles Peterson,
negotiated a deal on Saltzer's behalf whereby Mr. Saltzer
would cooperate fully with federal investigators, and plead
guilty to the federal charges. Id. at 2. In
exchange, the state charges were dismissed. Id. On
July 30, 2013, pursuant to a Rule 11(c)(1)(B) plea agreement,
Mr. Saltzer pleaded guilty to an Information that charged him
with one count of Sexual Exploitation of Children, in
violation of 18 U.S.C. § 2251(a). Id. On
November 12, 2013, Mr. Saltzer was sentenced by the Court to
348 months' incarceration, based on a guideline range of
324-360 months, followed by 20 years of supervised release.
Id. at 3.
Saltzer did not file an appeal from the sentence, but
instead, on October 23, 2014, brought a 28 U.S.C. § 2255
motion to vacate his sentence based upon a claim of eight
grounds of ineffective assistance of counsel. Id.
(see Civ. Dkt. 1 and Crim. Dkt. 49). On December 8, 2015,
this Court denied Mr. Saltzer's § 2255 motion and
declined to issue a certificate of appealability.
Id. at 28; see also Dec. 16, 2015 Judgment,
Civ. Dkt. 16. Mr. Saltzer then sought a certificate of
appealability from the Ninth Circuit, which was denied, and
then a writ of certiorari from the Supreme Court,
which was also denied (Civ. Dkts. 20 and 22).
March 20, 2017, Mr. Saltzer filed the instant motion seeking
relief from this Court's December 8, 2015 decision (Civ.
Dkt. 23). Mr. Saltzer argues that the Court should revisit
its sentencing decision because a newly discovered email
shows that both the prosecutor and Mr. Peterson incorrectly
analyzed his sentencing exposure at the plea stage.
Petitioner's Br. at 1, Dkt. 23. This incorrect
analysis, according to Mr. Saltzer, led Mr. Peterson to
advise Mr. Saltzer to reject the initial joint stipulated
plea agreement of 293 months in favor of a nonbinding plea
deal. Id. at 3. Mr. Peterson allegedly
reasoned that this would “provide [the] Court greater
flexibility in light of Defendant's substantial
assistance, ” and “informed [Mr. Saltzer] that
because of the 5k1.1 reduction, he would not face a sentence
greater than [293 months], and he could in fact receive a
sentence closer to the 180-month minimum under §
2251(a).” Id. As a result, Mr. Saltzer was
surprised when the prosecution sought “the statutory
maximum of 360 months, ” and when he ultimately
received a sentence five years longer than the length of the
sentence he would have received if he had accepted the
stipulated plea agreement. Id. at 3-4.
support of his motion, Mr. Saltzer points to an April 4, 2013
email from the prosecutor, AUSA Jim Peters, to Mr. Peterson,
which Mr. Saltzer obtained from Mr. Peterson on August 17,
2016, while he was in the course of preparing for his
petition to the Supreme Court. Id. at 4. The email
states, in full:
Chuck - I ran an estimate of the guidelines form [sic] Mark
Saltzer and found myself at Level 47. Of course, there is no
Level 47, so I reached out to a probation officer in
Pocatello - one who won't be writing Saltzer's PSR -
and asked him how they would handle a hypothetical situation
like his. You can see my message and his response
Based on that response, I think Saltzer will start at Level
43 - which would be Life.
If he pleads guilty, he'd be credited for acceptance of
responsibility, and that would reduce it to Level 40, which
would be 292-365 months. Then, take off one level for
cooperation (he hasn't given them anything that
resulted in the prosecution of others, but he did identify
some victims they didn't know about) and his range is
262-327 or roughly 21.8 to 27.25 years.
I think a sentence roughly in the middle of that range, say
25 years, would be appropriate under these circumstances.
He'd probably get credit for the time he has served in
state custody, and so with good time could be out in about
Hoping to talk with you about this tomorrow, and see if we
can get this put away so Ada County doesn't have to prep
And FYI, this is just an “invitation to treat” as
they say in law school. Final deal will be in a written plea