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Dennis Nimkie v. United States of America

November 15, 2012

DENNIS NIMKIE,
PETITIONER,
v.
UNITED STATES OF AMERICA,
RESPONDENT.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER

(1) DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY; AND

(2) DENYING A CERTIFICATE OF APPEALABILITY

I. INTRODUCTION

Currently before the court is Petitioner Dennis Nimkie's ("Nimkie") Motion Under 28 U.S.C. § 2255 to Vacate Sentence, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion"). Doc. No. 65. On April 18, 2011, Nimkie was sentenced to an eighteen-month term of imprisonment, a one-year term of supervised release, and restitution of $165,117.46. Doc. No. 58. Nimkie's § 2255 Motion challenges only the requirement to pay restitution.

For the following reasons, the court DENIES Nimkie's § 2255 Motion and DENIES a certificate of appealability.

II. BACKGROUND

Nimkie was indicted on July 17, 2008 and charged with twenty-six counts of violating 26 U.S.C. § 7206(2), for aiding and assisting in the false preparation of income tax returns. Doc. Nos. 1, 58. On August 25, 2010, Nimkie pled guilty to Count Four of the indictment pursuant to a plea agreement with the United States, in exchange for the United States dismissing the other twenty-five counts. Doc. Nos. 52, 53. Each count carried the possibility of a three-year term of imprisonment. Doc. No. 53 ¶ 7; 26 U.S.C. § 7206. In the written plea agreement, Nimkie agreed, among other matters: to pay restitution in an amount to be determined by the Court, to the [Internal Revenue Service ("IRS")] for taxes not collected from Defendant's clients, and to his former clients who were audited, for any interest and other monetary penalties assessed by the IRS, as a result of Defendant's preparation of their tax returns as filed with the IRS.

Doc. No. 53 ¶ 4b. He agreed that "the penalties for Count 4, the offense to which he is pleading guilty, include: . . . b. restitution pursuant to Title 18, United States Code, Section 3663(a)(3), in the amount of approximately $165,117.46 for which the defendant and his clients are jointly and severally liable." Id. ¶ 7.

Further, Nimkie agreed to waive most rights to appeal, or to challenge his sentence or the manner in which it was determined in any "collateral attack," as follows:

[Nimkie] knowingly waives the right to appeal, except as indicated in subparagraph "b" below, any sentence within the maximum provided in the statute(s) of conviction or the manner in which that sentence was determined on any of the grounds set forth in [18 U.S.C. § 3742], or on any ground whatever, in exchange for the concessions made by the prosecution in this plea agreement.

a. [Nimkie] also waives his right to challenge his sentence or the manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 18, United States Code, Section 2255, except that [Nimkie] may make such a challenge

(1) as indicated in subparagraph "b" below, or based on a claim of ineffective assistance of counsel.

b. If the Court imposes a sentence greater than specified in the guideline range determined by the Court to be applicable to the Defendant, the Defendant retains the right to appeal the portion of his sentence greater than specified in that guideline range and the manner in which that portion was determined under Section 3742 and to challenge that portion of his sentence in a collateral attack. Id. ¶ 12.

Nimkie was subsequently sentenced to an eighteen-month term of imprisonment, followed by a year of supervised release, as well as restitution of $165,117.46. Doc. No. 58 at 1-4. Under the terms of the judgment, restitution is to be paid to certain victims before any payment to the IRS. Id. at 4. Essentially, the restitution payments go first to certain former taxpayer clients of Nimkie who were audited, with payments representing penalties and interest that those taxpayers incurred because of underpayment of taxes. Id.; Doc. No. 75-4, Gov't Ex. D at 5. The balance ($151,260) is restitution owed to the IRS, owed jointly and severally with certain taxpayers identified in the indictment. Doc. No. 58 at 1; Doc. No. 75-4, Gov't Ex. D at 5-6.*fn1

Nimkie did not object to an award of restitution or the restitution amount, either at his change-of-plea hearing or at his sentencing hearing. See Doc. No. 75-3, Gov't Ex. C at 9, 14; Doc. No. 75-4, Gov't Ex. D at 7-8. Neither did he object to those figures as calculated in his Presentence Report ("PSR") . Doc. No. 56; PSR at 1A, 2A. Further, Nimkie did not file a direct appeal. Doc. No. 65, Mot. at 2. That is, he did not previously challenge the restitution requirement or the amount of restitution. And he has now served his term of imprisonment, and is presently on supervised release. Id. at 15.

On June 19, 2012, Nimkie filed his § 2255 Motion "requesting relief of ordered Restitution in the amount of $165,117.46," id. at 1, asserting four grounds: (1) "Restitution not apart (sic) of plea agreement," (2) "Ineffectiveness of Counsel at sentencing," (3) "Restitution is based on conjecture not fact of finding," and (4) "Victims restitution a travesty of lodgic (sic)." Id. at 1, 4-7. The government filed a Response on September 24, 2012, Doc. No. 75, and Nimkie filed a Reply on October 25, 2012. Doc. No. 77.

III. STANDARD OF REVIEW

Title 28 U.S.C. ยง 2255(a) ...


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