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Saltzer v. United States

United States District Court, D. Idaho

August 15, 2018

MARK ALAN SALTZER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL, CHIEF U.S. DISTRICT COURT JUDGE.

         INTRODUCTION

         Pending 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.

         BACKGROUND

         In 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.

         Mr. 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).

         On 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.[1] 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.

         In 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 below.[2]
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[3] (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 20.
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 for trial.
And FYI, this is just an “invitation to treat” as they say in law school. Final deal will be in a written plea agreement, ...

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