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United States v. Wolf

United States District Court, D. Montana, Billings Division

June 5, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,


          Susan P. Watters, United States District Court.

         This case comes before the Court on Defendant/Movant William Krisstofer Wolfs motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Wolf is a federal prisoner proceeding pro se.

         I. Preliminary Review

         Before the United States is required to respond, the Court must determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review." Calderon v. United States Dist Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (“Nicolas") (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). But the Court should "eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.

         II. Background

         On April 17, 2015, a grand jury indicted Wolf on one count of possessing a machine gun, a violation of 18 U.S.C. § 922(o) (Count 1), and one count of possessing an unregistered firearm, a violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871 (Count 2). Both counts were based on the same weapon, an Izhmash Model Saiga-12 12-gauge shotgun modified to fire automatically and "sawed off, " that is, having a barrel length under 18 inches. See Indictment (Doc. 7) at 2. Assistant Federal Defender Mark Werner was appointed to represent Wolf. See Order (Doc. 4).

         Trial commenced on November 2, 2015. See Minutes (Doc. 53). The jury found Wolf guilty on both counts. See Verdict (Doc. 58).

         A presentence report was prepared. At sentencing, an upward adjustment for obstruction of justice was rejected, but the Court adopted the remainder of the report without change. Based on a total offense level of 22 and a criminal history category of I, Wolfs advisory guideline range was 41 to 51 months. To fulfill the sentencing objectives of 18 U.S.C. § 3553(a), the Court varied upward to a sentence of 72 months in prison, to be followed by a three-year term of supervised release. See Minutes (Doc. 84); Judgment (Doc. 85) at 2-3.

         Wolf appealed. He challenged the denial of his pretrial motion in limine as untimely and, based on the First Amendment and Federal Rule of Evidence 403, denial of his motion to exclude statements he made in a webcast that were admitted to show his state of mind and to negate his defense of entrapment. He also challenged the sufficiency of the evidence negating entrapment and the reasonableness of his sentence. On May 24, 2017, Wolfs arguments were rejected and his conviction and sentence were affirmed. See Mem. (Doc. 101) at 2-4, United States v. Wolf, No. 16-30065 (9th Cir. May 24, 2017).

         Wolf filed a petition for writ of certiorari. The United States Supreme Court denied the petition on October 2, 2017. See Clerk Letter (Doc. 104) at 1.

         Wolfs conviction became final on October 2, 2017. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on January 2, 2018. See 28 U.S.C. § 2255(f)(1).

         III. Claims and Analysis

         Wolf claims that counsel was ineffective in various respects. These claims are governed by Strickland v. Washington, 466 U.S. 668 (1984). At this stage of the proceedings, Wolf must allege facts sufficient to support an inference (1) that counsel's performance fell outside the wide range of reasonable professional assistance, Id. at 687-88, and (2) that there is a reasonable probability that, but for counsel's unprofessional performance, the result of the proceeding would have been different, Id. at 694.

         A. Audio Recordings

         Wolf claims that counsel should have moved to suppress recordings of statements Wolf made in webcasts "that had nothing to do with a purchase of a shotgun." Mot. § 2255 (Doc. 105) at 5; Mem. (Doc. 106) at 3.

         To prove the crimes alleged, the United States had to prove, among other things, that Wolf "knew" the firearm "was a machine gun" or "a shot gun with a barrel of less than 18 inches in length." Jury Instr. Nos. 40, 43 (Doc. 59 at 44, 47). Wolf also presented a defense of entrapment, so the United States had to prove, beyond reasonable doubt, see Jacobson v. United States,503 U.S. 540, 549 (1992), either that Wolf was predisposed to commit the crime, or that government agents did not induce Wolf to commit the crime, see, e.g., United States v. Gurolla,333 F.3d 944, 956 (9th Cir. 2003); ...

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