USA v. BENSON, et al.

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BERNARD GADSON, 	)
)
Petitioner, 	)
) 	2:19-cr-00122-JAW-2
v. 	) 	2:24-cv-00443-JAW
) 	2:21-cr-00163-JAW
) 	2:24-cv-00444-JAW
UNITED STATES OF AMERICA, 	)
)
Respondent 	)
AMENDED1 RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
AND MOTION TO UPDATE PRESENTENCE REPORT
CRIMINAL HISTORY CALCULATION
Following guilty pleas in two related cases, Petitioner was convicted of attempted
bank fraud, aiding and abetting aggravated identity theft, and criminal contempt while on
pretrial release; the Court sentenced Petitioner to a total of 110 months in prison. (Second
Amended Judgment, 2:19-cr-00122-JAW-2, ECF No. 243, 2:21-cr-00163-JAW, ECF No.
95.) 	Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his
sentences. (Motion, 2:19-cr-00122-JAW-2, ECF No. 278, 2:21-cr-00163-JAW, ECF No.
130.) The Government requests dismissal of the motion. (Response, 2:19-cr-00122-JAW-
2, ECF No. 292, 2:21-cr-00163-JAW, ECF No. 144.) 	Petitioner also asks the Court to
modify his presentence investigation report (PSR) to reflect his contention that one of his
1 After the Recommended Decision was issued, I noted that after Petitioner filed his motions, Petitioner
was transferred to a federal correctional facility in Florida. 	Because I have concluded that Petitioner’s
motion to update the presentence report criminal history calculation should be transferred to the district in
which Petitioner is in custody, I issue this Amended Recommended Decision to account for Petitioner’s
current location. I withdraw the original Recommended Decision.
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prior convictions has been vacated. (Motion to Update PSR, 2:19-cr-00122-JAW-2, ECF
No. 294, 2:21-cr-00163-JAW, ECF No. 146.) 	The Government opposes the motions.
(Response, 2:19-cr-00122-JAW-2, ECF No. 297, 2:21-cr-00163-JAW, ECF No. 148.)
Following a review of the record and after consideration of Petitioner’s motions and
the Government’s responses, I recommend the Court dismiss Petitioner’s § 2555 motions,
construe the motions to update the PSR as § 2241 petitions, and transfer the § 2241 petitions
to the Middle District of Florida.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In December 2018, Defendant and two associates engaged in a scheme to defraud
banks and credit unions throughout New England. 	(Prosecution Version ¶ 1, 2:19-cr-
00122-JAW-2, 	ECF 	No. 	189.) 	Petitioner 	would 	obtain 	the 	personal 	identifying
information of individuals with good credit scores and then provide information and fake
documents to the associates. (Id.) One of the associates would then apply for unsecured
personal loans in the names of the victims, withdraw the balance of the loans in cash, and
the three individuals would divide the money. (Id.)
In January 2019, after taking out one such loan in Kittery, Maine, the two associates
were arrested and interviewed. (Id. ¶¶ 2–3.) One of the associates told officers about the
scheme and the participants. 	(Id. ¶ 4.) 	A search of the individual’s phone revealed text
messages among the three associates regarding the loan application, an email from
Petitioner with a fake document for proof of income for one victim, and a text message
with a fake lease in the name of another victim. (Id. ¶ 5.)
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A grand jury returned an indictment in June 2019. 	(Indictment, 2:19-cr-00122-
JAW-2, ECF No. 3.) As later amended, Petitioner was charged with bank fraud in violation
of 18 U.S.C. §§ 2 and 1344(2), two counts of aiding and abetting aggravated identity theft
in violation of 18 U.S.C. §§ 2 and 1028A(1), attempted bank fraud in violation of 18 U.S.C.
§§ 2 and 1344(2), and conspiracy to commit bank fraud and aggravated identity theft in
violation of 18 U.S.C. §§ 371, 1344(2), and 1028A(1). (Superseding Indictment, 2:19-cr-
00122-JAW-2, ECF No. 64.) 	Petitioner was arrested in August 2019 in Massachusetts,
where other charges were pending; he was later released on pretrial supervision. 	(Initial
Appearance, 2:19-cr-00122-JAW-2, ECF No. 18; Detention Hearing, 2:19-cr-00122-JAW-
2, ECF No. 50.)
The Government subsequently learned that on many occasions between December
2019 and April 2021, Petitioner traveled well outside Massachusetts without permission in
violation of his conditions of release. (Prosecution Version, 2:21-cr-00163-JAW, ECF No.
38.) In June 2021, the Government filed a motion to revoke Petitioner’s bail. (Motion to
Revoke Bail, 2:19-cr-00122-JAW-2, ECF No. 171.) The Government also charged
Petitioner in a separate case with one count of criminal contempt in violation of 18 U.S.C.
§ 401(3). (Complaint, 2:21-cr-00163-JAW, ECF No. 3.)
In October 2021, Petitioner pled guilty to one count of attempted bank fraud and
one count of aiding and abetting aggravated identity theft; he also waived indictment and
pled guilty in the criminal contempt case. 	(Corrected Plea Agreement ¶¶ 1–2, 2:19-cr-
00122-JAW-2, ECF No. 191, 2:21-cr-00163-JAW, ECF No. 41; Guilty Pleas, 2:19-cr-
00122-JAW-2, ECF No. 192, 2:21-cr-00163-JAW, ECF No. 43.) The Government agreed
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to dismiss the other charges and conditionally agreed to recommend a guideline reduction
for acceptance of responsibility. (Id. ¶ 4.) Petitioner also waived his right to appeal from
a sentence that did not exceed sixty months. (Id. ¶ 5.)
At sentencing in May 2022, Petitioner contested many issues, including whether he
was the individual who the associate had identified as the leader of the scheme; the Court
ruled against Petitioner and determined that Petitioner had not sufficiently accepted
responsibility for purposes of the three-level guideline reduction, but the Count decided
that Petitioner’s partial acceptance as reflected by the decision to plead guilty justified a
downward variance. 	(Sentencing Transcript at 50–51, 2:19-cr-00122-JAW-2, ECF No.
230, 2:21-cr-00163-JAW, ECF No. 80.) The Court calculated a total offense level of 27,
a criminal history category of IV, and a corresponding guideline range of 100 to 125
months for the bank fraud and criminal contempt convictions. 	(Id. at 51.) 	The statutory
minimum 	twenty-four-month 	sentence 	for 	aggravated 	identify 	theft 	to 	be 	served
consecutively set the overall guideline range at 124 to 149 months in prison. 	(Id. at 51–
52.) 	The Court sentenced Petitioner to concurrent terms of 80 months in prison for the
attempted bank fraud and criminal contempt convictions and 24 months in prison to be
served consecutively for the aggravated identify theft conviction, for a total term of 110
months in prison. 	(Amended Judgment, 2:19-cr-00122-JAW-2, ECF No. 223, 2:21-cr-
00163-JAW, ECF No. 73.)
Petitioner appealed, contesting three issues: (1) the use of intended loss rather than
actual loss in determining the offense level, as the guideline commentary instructed, (2) the
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denial of the guideline reduction for acceptance of responsibility, and (3) the inclusion in
the order of restitution of one auto loan that Petitioner had obtained in his own name but
with false documents. In August 2023, the First Circuit rejected Petitioner’s arguments on
the first two issues, but because the Government conceded the restitution issue, the First
Circuit remanded as to the amount of restitution without addressing the merits of that issue.
United States v. Gadson, 77 F.4th 16, 22–23 (1st Cir. 2023).
On remand, the Court reduced the amount of restitution. 	(Second Amended
Judgment, 2:19-cr-00122-JAW-2, ECF No. 243, 2:21-cr-00163-JAW, ECF No. 95.)
Petitioner sought Supreme Court review; in February 2024, the Supreme Court denied the
petition for a writ of certiorari. Gadson v. United States, 144 S. Ct. 823 (2024). Petitioner
later filed the § 2255 motions and the motions to update the PSR.
DISCUSSION
A. 	2255 Motions
1. 	Legal Standards
A person may move to vacate his or her sentence on one of four different grounds:
(1) “that the sentence was imposed in violation of the Constitution or laws of the United
States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the
sentence was in excess of the maximum authorized by law”; or (4) that the sentence
“is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States,
37 F.3d 769, 772 (1st Cir. 1994).
“[P]ro se habeas petitions normally should be construed liberally in petitioner’s
favor.” United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (citing Estelle v. Gamble,
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429 U.S. 97, 106 (1976)). 	The burden is on the section 2255 petitioner to establish by a
preponderance of the evidence that he or she is entitled to section 2255 relief. 	David v.
United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952,
954 (1st Cir. 1978). 	When “a petition for federal habeas relief is presented to the judge
who presided at the petitioner’s trial, the judge is at liberty to employ the knowledge
gleaned during previous proceedings and make findings based thereon without convening
an additional hearing.” United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).
A collateral challenge is not a substitute for an appeal. United States v. Frady,
456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002).
“[A] defendant’s failure to raise a claim in a timely manner at trial or on appeal constitutes
a procedural default that bars collateral review, unless the defendant can demonstrate cause
for the failure and prejudice or actual innocence.” 	Berthoff, 308 F.3d at 127–28.
Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st
Cir. 2010). 	The First Circuit has recognized that “federal courts have the authority to
consider procedural default sua sponte.” Rosenthal v. O’Brien, 713 F.3d 676, 683 (1st Cir.
2013) (citing Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997)); see also Daniels v.
United States, 532 U.S. 374, 382–83 (2001) (recognizing that “procedural default rules
developed in the habeas corpus context apply in § 2255 cases”) (citing Frady, 456 U.S. at
167–68).
An allegation of ineffective assistance of counsel can excuse a procedural default if
the petitioner demonstrates that counsel’s representation “fell below an objective standard
of reasonableness.” 	Strickland v. Washington, 466 U.S. 668, 688 (1984). The petitioner
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must also demonstrate that “there is a reasonable probability that, but for counsel’s
unprofessional 	errors, 	the 	result 	of 	the 	proceeding 	would 	have 	been 	different.
A reasonable probability 	is 	a 	probability 	sufficient 	to 	undermine 	confidence 	in 	the
outcome.” Id. at 694. A district court reviewing a claim of ineffective assistance of counsel
need not address both prongs of the Strickland test because a failure to meet either prong
will undermine the claim. Id. at 697. If a petitioner’s “claims fail on the merits, his related
claims that counsel rendered ineffective assistance in failing to press the claims at trial or
on appeal must also fail.” 	Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per
curiam).
Under the law of the case doctrine, “issues disposed of in a prior appeal will not be
reviewed again by way of a 28 U.S.C. § 2255 motion.” Singleton v. United States, 26 F.3d
233, 240 (1st Cir. 1994) (modifications and quotation marks omitted); see also Elwell v.
United States, 95 F.3d 1146, 1996 WL 516138 at *5 (1st Cir. 1996) (holding that a
petitioner “is not entitled on collateral review to relitigate issues raised on direct appeal,
absent an intervening change in the law”); White v. United States, 371 F.3d 900, 902 (7th
Cir. 2004) (collecting cases and explaining limited exceptions).
“Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there
is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted.”
Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003). A hearing is
unnecessary “when a § 2255 petition (1) is inadequate on its face, or (2) although facially
adequate, is conclusively refuted as to the alleged facts by the files and records of the case.”
Id. (quotation marks omitted).
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Summary dismissal of a motion is permitted when the allegations are “vague,
conclusory, or palpably incredible,” even “if the record does not conclusively and expressly
belie [the] claim.” 	Machibroda v. United States, 368 U.S. 487, 495 (1962). A court can
reasonably require a petitioner to supply the court with salient details of the claim prior to
permitting discovery or a hearing. David, 134 F.3d at 478 (holding that “the district court
did not abuse its discretion in refusing to license a fishing expedition”).
2. 	Pre-Plea Predictions about Trial and Sentencing
Petitioner argues that his attorney provided ineffective assistance of counsel by
misleading him regarding his chances of acquittal at trial and the likely sentence if he pled
guilty. (Motion at 5.) Petitioner alleges that defense counsel told him that his chance of
acquittal was low in part because he is a black man in Maine and the primary witness
against him was a white woman. (Id.) Counsel acknowledges that he advised Petitioner
that he was not likely to prevail at trial and that Petitioner’s position at sentencing would
be more favorable after a guilty plea. (Rioux Declaration at 2, 2:19-cr-00122-JAW-2, ECF
No. 292-1, 2:21-cr-00163-JAW, ECF No. 144-1.) According to counsel, while Petitioner
was concerned about the likely racial composition of the jury, counsel attempted to reassure
him citing counsel’s prior success defending black defendants in Maine, but counsel
expressed concern about the evidence the Government would present against Petitioner.
(Id.)
Petitioner also alleges that counsel told him that a guilty finding after trial would
likely yield a sentence of around seven years, but if he pled guilty, the sentence would be
approximately forty months and no more than the sixty-month appeal waiver threshold.
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(Motion at 5.) Counsel denies that he promised a forty or sixty-month sentence and asserts
that his estimate of seven years was for the original fraud case before the addition of the
bail revocation and criminal contempt charges. (Rioux Declaration at 2.)
Petitioner also asserts that counsel told him that if he pled guilty and the conspiracy
charge was dismissed, the other uncharged conduct would not be considered for purposes
of sentencing. 	(Motion at 5, 8.) 	Counsel asserts that he discussed with Petitioner that
dismissal of the conspiracy count would be beneficial at sentencing, but he did not
guarantee that Petitioner’s other actions would not be considered relevant conduct at
sentencing. (Rioux Declaration at 2.)
Petitioner’s 	unsupported 	allegations 	are 	insufficient 	to 	establish 	deficient
performance or to necessitate an evidentiary hearing to resolve a genuine issue of
credibility. 	Notably, Petitioner fails to provide any authority that would suggest it is
improper for an attorney to discuss with a client the issues, including race, that might
impact a jury’s deliberations.2 Further, “an inaccurate prediction about sentencing will
generally not alone be sufficient to sustain a claim of ineffective assistance of counsel.”
Knight v. United States, 37 F.3d 769, 775 (1st Cir. 1994).
2 Petitioner contends that Buck v. Davis, 580 U.S. 100 (2017), established that it is impermissible and
coercive for counsel to assert that a guilty verdict is likely because of the race of the jurors. (Reply at 1,
2:19-cr-00122-JAW-2, ECF No. 301, 2:21-cr-00163-JAW, ECF No. 152; Reply to Declaration at 2, 2:19-
cr-00122-JAW-2, ECF No. 301-1, 2:21-cr-00163-JAW, ECF No. 152-1.) 	The Supreme Court found
deficient performance and prejudice when defense counsel introduced expert evidence in front of the jury
linking a defendant’s race with increased probability of future criminality. Buck, 580 U.S. at 119–22. The
case does not support Petitioner’s argument because it did not address attorney-client communications
regarding an assessment of trial-related issues.
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Even assuming that Petitioner’s account of his communications with counsel is
accurate, Petitioner’s claim also fails because the record does not support a finding of
prejudice. To establish prejudice in the context of a claim of ineffective assistance leading
to a guilty plea, “the defendant must show that there is a reasonable probability that, but
for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted
on going to trial,” Hill v. Lockhart, 474 U.S. 52, 59 (1985), or would have accepted another
available and more favorable plea offer, Missouri v. Frye, 566 U.S. 134, 147 (2012).
Because Petitioner does not allege that he rejected a more favorable plea offer, the
question is whether the record would support a finding that Petitioner would have opted
for trial but for counsel’s alleged statements. The Supreme Court has acknowledged that
defendants may reasonably risk trial and forego the guideline reduction for acceptance of
responsibility in certain circumstances, but it has also cautioned that “[c]ourts should not
upset a plea solely because of post hoc assertions from a defendant about how he would
have pleaded” and “should instead look to contemporaneous evidence to substantiate a
defendant’s expressed preferences.” Lee v. United States, 582 U.S. 357, 369 (2017).
The record in this case is devoid of any contemporaneous evidence suggesting that
Petitioner would have insisted on going to trial but for counsel’s statements. Petitioner has
presented no evidence to undermine any of the evidence of guilt, and the evidence of guilt
was substantial. 	There are also no apparent special implications of conviction, such as
possible deportation, that might have caused Petitioner to proceed to trial rather than plead
guilty. See id. Petitioner’s ability to establish prejudice is also compromised by the explicit
warnings Petitioner received that the appeal waiver was not an estimate or a cap on the
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sentence. 	(Corrected Plea Agreement at 4.) 	Because the record does not contain any
evidence that would support a finding of prejudice, Petitioner’s ineffective assistance
claims fail.
3. 	Sentencing Preparation and Evidence
Petitioner argues that he was deprived of the effective assistance of counsel at
sentencing 	because 	he 	did 	not 	receive 	the 	guideline 	reduction 	for 	acceptance 	of
responsibility and because counsel declined to introduce a letter from his codefendant
containing an assertion that Petitioner was not the individual named Gio who led the
scheme. (Motion at 6, 9.) Defense counsel reported that he decided not to introduce the
letter because it was unlikely to convince the judge that Petitioner was not Gio given that
at his plea hearing, Defendant acknowledged the accuracy of the prosecution version,
which asserted that Petitioner was Gio. (Rioux Declaration at 4-5.) Counsel also asserted
that he concluded the letter could have been counterproductive as the Government could
argue that Petitioner had pressured his cousin (the codefendant) to provide false evidence
to help Petitioner at sentencing. (Id. at 5.)
Petitioner also argues that his attorney arrived at the sentencing hearing with a blank
notepad and failed to prepare to advocate for him. (Motion at 6.) Counsel asserted that he
likely did bring a blank notepad because he ordinarily takes notes during the Government’s
presentation, but he also brought other materials, including exhibits that he submitted to
the Court. (Rioux Declaration at 5.)
None of Petitioner’s arguments establishes deficient performance or prejudice from
counsel’s decisions at sentencing. 	Because Petitioner offers no convincing response to
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counsel’s countervailing concerns about the letter, the decision not to introduce the letter
was a reasonable strategic decision. A review of the record—including the objections to
the PSR, the sentencing memoranda, and the sentencing transcript—conclusively refutes
any allegation that counsel was unprepared and failed to present argument in Petitioner’s
defense. To the contrary, counsel argued effectively for acceptance of responsibility and
the Court varied downward for his partial acceptance of responsibility despite Petitioner’s
decision to dispute various issues regarding his role and identity. Because Petitioner does
not identify the other material issues, arguments, or evidence that would have been
discovered or raised at sentencing if counsel made additional preparations, the claim is too
speculative to support postconviction relief. 	See Janosky v. St. Amand, 594 F.3d 39, 49
(1st Cir. 2010) (“Where, as here, the result of counsel’s alleged failure to investigate is
wholly speculative,” an ineffective assistance claim fails).
4. 	Judicial Bias
Petitioner argues that trial and appellate counsel provided ineffective assistance by
failing to object or seek recusal when the judge allegedly exhibited bias against Petitioner
at sentencing. 	(Motion at 10.)3 	The statements that Petitioner contends reflect bias are
simply insufficient to establish judicial bias. See Liteky v. United States, 510 U.S. 540, 556
(1994) (noting that “judicial rulings, routine trial administration efforts, and ordinary
admonishments (whether or not legally supportable) to counsel and to witnesses” during
3 Petitioner initially framed the claim as one of judicial error, but after the Government argued correctly
that the claim was procedurally defaulted for failing to raise it at sentencing or on appeal, Petitioner invoked
ineffective assistance, either as a clarification regarding the nature of his claim or as cause to excuse the
procedural default. (Reply to Declaration at 5.)
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judicial proceedings are not sufficient to establish judicial bias unless they “relied upon
knowledge acquired outside such proceedings” or “displayed deep-seated and unequivocal
antagonism that would render fair judgment impossible”). At most, the statements that
Petitioner cites reflect a misunderstanding regarding certain facts. The statements do not
suggest bias. Petitioner also has not explained (and it is not apparent) how the statements
were material or significant enough to warrant an objection, additional counterarguments,
or a motion for recusal.4
In short, Petitioner has not established deficient performance or prejudice from
counsel’s decisions because the underlying assertion of judicial bias lacks merit.
5. 	Actual vs. Intended Loss
Petitioner argues that the Court erred by applying a twelve-point increase to his base
offense level for a total intended loss over $250,000. Petitioner contends that the amount
would have been lower and thus the base offense level would have been four points lower
if the approximate $107,000 auto loan that Petitioner obtained in his own name was not
considered. (Motion at 14.) According to Petitioner, the Government conceded on direct
4 For example, Petitioner originally objected to the PSR’s references to certain fraudulent transactions in
Minnesota while he was on pretrial release, but he withdrew the objection when the government was
prepared to submit evidence on the issue. (Sentencing Transcript at 34–37.) When explaining why it was
appropriate for Petitioner to receive a longer sentence than the codefendant, the Court noted that Petitioner
(but not the codefendant) had “pled guilty also now to criminal contempt for his conduct in Minnesota,
having been released on bail for this type of fraudulent conduct and then repeating it . . .” (Id. at 56.)
Petitioner does not dispute that he (but not the codefendant) pled guilty to criminal contempt and chose not
to contest the evidence that he had continued to engage in similar fraudulent conduct. Rather, Petitioner
faults the Court for what might be construed as a conflation of Petitioner’s decision not to contest the
evidence of the fraudulent transactions with an admission of guilt. Counsel’s decision not to object was
not unreasonable given that there could be no dispute that the Court’s substantive point was sound:
Petitioner’s decisions to travel and engage in similar conduct while on pretrial release distinguished his
situation from that of his codefendant.
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appeal that the auto loan should not have been part of the restitution order, but his guideline
range was still improperly increased because of that loan. (Id.)
Petitioner procedurally defaulted the claim by failing to raise it on direct appeal.
Even if Petitioner could overcome the default through an assertion of ineffective assistance
of counsel, that assertion would fail because the underlying argument lacks merit. While
the auto loan originally impacted the restitution order, the auto loan was not material to the
guideline sentencing range because the Probation Office and the Court only included a
much smaller portion–approximately $7,600–as part of their calculation of the intended
loss. 	(PSR at 11.) 	Because the total intended loss was far greater than $257,600, the
twelve-level increase to the offense level would have been the same even without
considering the auto loan. See Gadson, 77 F.4th at 22 n.3 (noting that Petitioner conceded
the auto loan was immaterial to the offense level increase unless he could win the argument
regarding actual vs. intended loss). Accordingly, the claim fails.
B. 	Motions to Update the PSR
Petitioner asks the Court to update the PSR to remove references to a prior
conviction that he alleges was vacated after judgment. 	(Motions to Update PSR at 1.)
Petitioner maintains that if recalculated today, his criminal history score would be two
points lower, and his criminal history category would be III rather than IV. (Id.) Petitioner
asserts that the change is necessary because it impacts his recidivism score and the
calculation of time credits, but the Bureau of Prisons will not grant his request without
court involvement. (Id.)
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“Once a district court imposes a term of imprisonment, it may modify that term only
to the extent authorized by 18 U.S.C. § 3582(c).” United States v. Griffin, 524 F.3d 71, 83
(1st Cir. 2008). 	Under § 3582(c), the sentencing court may: (1) correct an arithmetical,
technical, or other clear error within 14 days after sentencing, id. § 3582(c)(1)(B), Fed. R.
Crim. P. 35(a); (2) reduce a sentence upon the government’s motion within one year of
sentencing if the defendant provided substantial assistance investigating or prosecuting
another person, id. § 3582(c)(1)(B), Fed. R. Crim. P. 35(b); (3) modify a sentence that was
based on a guideline range which the Sentencing Commission subsequently lowered, id. §
3582(c)(2); and (4) reduce a sentence for certain defendants over the age of seventy who
have served more than thirty years in prison or for other defendants based on extraordinary
and compelling reasons, id. § 3582(c)(1)(A). 	In addition, Congress has the power to
authorize courts to modify sentences by enacting other statutes. 	See id. § 3582(c)(1)(B)
(providing for sentence modifications “to the extent otherwise expressly permitted by
statute”). 	Beyond that “handful of narrowly circumscribed exceptions,” the sentencing
court “has no jurisdiction to vacate, alter, or revise a sentence previously imposed.” United
States v. Mercado-Flores, 872 F.3d 25, 28 (1st Cir. 2017). 	Therefore, in the absence of
some other new sentencing proceeding, “this Court does not have the authority to amend
the presentence report to remove information after sentencing.” United States v. Sawyer,
No. CR 15-897-TUC-CKJ, 2025 WL 2645695, at *1 (D. Ariz. Sept. 15, 2025) (quotation
marks and modifications omitted).
After a court imposes a sentence, the Bureau of Prisons (BOP), rather than the
sentencing court, is responsible for determinations like the calculation of the sentence and
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time credits. 	See 18 U.S.C. § 3624(a)-(b); Gonzalez v. United States, 959 F.2d 211, 212
(11th Cir. 1992) (“Courts have original jurisdiction over imposition of a sentence. 	The
Bureau of Prisons is, however, responsible for computing that sentence and applying
appropriate good time credit.”). 	When a prisoner seeks to challenge or enforce the rules
and regulations governing the implementation or execution of the sentence rather than the
legality of the conviction or sentence, the prisoner must exhaust the internal BOP remedies
and then file a petition pursuant to 28 U.S.C. § 2241 in the court with jurisdiction over the
place of confinement rather than the sentencing court. 	McKinney v. United States, No.
1:18-CR-00084-JAW-3, 2022 WL 1997242, at *3 (D. Me. June 6, 2022); see also,
Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004) (“Whenever a § 2241 habeas petitioner
seeks to challenge his present physical custody within the United States, he should name
his warden as respondent and file the petition in the district of confinement”); Francis v.
Maloney, 798 F.3d 33, 36 (1st Cir. 2015) (noting that § 2241 petitions are the traditional
method for challenging BOP decisions regarding prison placement and time credits).
Because Petitioner alleges the BOP is relying on incorrect information in calculating his
recidivism score and credits and has failed to correct the error, and because Petitioner does
not challenge the legality of the sentence when it was imposed, the motion is in substance
a § 2241 habeas corpus motion, which motion can only be heard in the district of
confinement.
When a petitioner seeks habeas relief from the incorrect federal district court, the
court must dismiss the petition or, if it is in the interest of justice, transfer the case to any
district or division where it could have been filed properly. 28 U.S.C. §§ 1406(a), 1404(a),
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1631; Ozturk v. Trump, No. 25-CV-10695-DJC, 2025 WL 1009445, at *11 (D. Mass. Apr.
4, 2025). Petitioner argued that the sentencing court could resolve the issue, but he argued
in the alternative that that the motion should be transferred to the district of confinement.
Absent unusual circumstances, other courts in this circuit have generally transferred rather
than dismissed such petitions. 	See, e.g., Tham v. Adducci, 319 F. Supp. 3d 574, 578 (D.
Mass. 2018) (“there is a rebuttable presumption in favor of transferring a case instead of
dismissing it”) (citing Britell v. United States, 318 F.3d 70, 73–74 (1st Cir. 2003)).
Considering the law’s preference for deciding cases on the merits, and because there is an
identifiable court that likely would have jurisdiction to consider a § 2241 petition, the
interests of justice would support a transfer to the United States District Court for the
Middle District of Florida.
C ONCLUSION
Based on the foregoing analysis, an evidentiary hearing is not warranted under Rule
8 of the Rules Governing Section 2255 Cases. 	In addition, I recommend that the Court
deny Petitioner’s motions for habeas relief under 28 U.S.C. § 2255. I further recommend
that the Court deny a certificate of appealability pursuant to Rule 11 of the Rules Governing
Section 2255 Cases because there is no substantial showing of the denial of a constitutional
right within the meaning of 28 U.S.C. § 2253(c)(2). I also recommend the Court construe
the motions to update the PSR as § 2241 petitions and transfer the petitions to the Middle
District of Florida.
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NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
and shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 30th day of January, 2026.
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