United States District Court, D. Nevada
LARRY R. HICKS, District Judge.
Before the court is defendant Tandy Anne Kertanis's ("Kertanis") motion to reconsider the court's order denying her amended motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 (Doc. #128). Doc. #129. The United States filed an opposition to the motion. Doc. #130.
I. Facts and Procedural History
On November 19, 2008, Kertanis was indicted on charges of bank fraud. See Doc. #1. On June 24, 2009, a superseding indictment was filed against Kertanis charging her with one count of bank fraud in violation of 18 U.S.C. §§ 1344(1) and (2); four counts of aggravated identity theft in violation of 18 U.S.C. § 1028A; two counts of money laundering in violation of 18 U.S.C. § 1957; one count of access device fraud in violation of 18 U.S.C. § 1029(a)(2); and one count of committing an offense while on release in violation of 18 U.S.C. § 3147(1). Doc. #19.
On August 20, 2012, Kertanis pled guilty to Count 2 of the indictment for aggravated identify theft in violation of 18 U.S.C. § 1028A and Count 5 of the indictment for money laundering in violation of 18 U.S.C. § 1957. See Doc. #64. Subsequently, on April 11, 2013, Kertanis was sentenced to fifty-seven (57) months for Count 5 and a consecutive twenty-four (24) months for Count 2 for a total sentence of eighty-one (81) months incarceration. See Doc. #88. Kertanis did not appeal her sentence.
On May 30, 2013, Kertanis filed a motion to vacate pursuant to 28 U.S.C. § 2255. Doc. #93. On July 17, 2013, Kertanis filed a motion to amend her motion to vacate (Doc. #113) which was granted by the court. Kertanis then filed her amended motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 (Doc. #114) which was denied by the court (Doc. #128). Thereafter, Kertanis filed the present motion for reconsideration. Doc. #129.
A motion for reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 887, 890 (9th Cir. 2000). Rule 59(e) provides that a district court may reconsider a prior order where the court is presented with newly discovered evidence, an intervening change of controlling law, manifest injustice, or where the prior order was clearly erroneous. FED. R. CIV. P. 59(e); see also United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998); School Dist. No. 1J, Multnomah County v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). In a habeas action, a motion for reconsideration requires a showing that the court overlooked issues that may have materially influenced the court's prior decisions. See e.g., Browder v. Director, 434 U.S. 257, 270-71 (1978).
In her motion for reconsideration, Kertanis raises three challenges to the court's order denying her amended motion to vacate. First, Kertanis argues that the court erred in calculating the amount of loss suffered by non-party Wells Fargo Bank, N.A. ("Wells Fargo"), the victim of her bank fraud. Second, Kertanis argues that the court failed to consider the medical evidence concerning the health of her young son before determining her sentence. Finally, Kertanis argues that the court erred in finding that venue lied within the District of Nevada. See Doc. #129. The court shall address each argument below.
A. Amount of Loss Challenge
In the court's order denying Kertanis's amended motion for post-conviction relief, the court found that Wells Fargo suffered an amount of loss in excess of $200, 000 and that Kertanis was not entitled to several reductions in the court's amount of loss calculation. In particular, the court found that Kertanis was not entitled to a $23, 500 reduction in her amount of loss calculation for return of a Toyota truck purchased with the fraudulently obtained funds because she did not return the vehicle until after Wells Fargo discovered the fraud. See Doc. #128, p.6 (citing Commentary 3(E) to U.S.S.G. §2B1.1 (stating that a defendant is entitled to a credit against the amount of loss for any money returned, including the fair market value of the property returned, by the defendant to the victim before the offense was detected) (emphasis added). Similarly, the court found that Kertanis was not entitled to a $180, 000 reduction for the conduct of her civil attorney, Attorney Douglas Fermoile ("Attorney Fermoile"), because the alleged loss of those funds by Attorney Fermoile occurred after the bank fraud had been accomplished and, thus, was not a "new loss" within the meaning of United States v. Hicks, 217 F.3d 1038 (9th Cir. 2000).
Now, in her motion for reconsideration, Kertanis argues that the court misapplied the applicable law in calculating Wells Fargo's amount of loss related to her bank fraud. Specifically, Kertanis argues that Hicks allows for a reduction for any amount that the bank recovers, regardless of when that amount is recovered. See Doc. #129. The court disagrees and finds that Kertanis misinterprets Hicks. Hicks provides that "[i]n fraudulent loan application cases, the loss is the amount of the loan not repaid at the time the offense is discovered, reduced by the amount the lending institution has recovered (or can expect to recover) from any assets pledged to secure the loan." 217 F.3d at 1047. Here, the evidence establishes that Wells Fargo did not recover any amount from collateral pledged to secure the loan. In fact, there is no evidence before the court that any property - especially not the Toyota truck purchased with funds obtained from the fraud - was pledged to secure the loan. As such, the court did not misapply the applicable law in calculating the amount of loss in this action.
B. Medical Records
Kertanis's second argument is that the court erred in failing to take into consideration her son's medical records at sentencing. However, as identified in the court's prior order, the court accepted and evaluated the medical records (composed of several letters from the son's pediatric doctors, as well as an occupational therapy assessment) in determining Kertanis's ultimate sentence. In fact, the court gave her son's health problems and Kertanis's "family obligation the maximum credit" in fashioning her sentence. Doc. #71, p.59-60. For example, the recommended sentence was at the high end of the sentencing guidelines, ...