United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. REEVES, UNITED STATES DISTRICT JUDGE.
matter is pending for consideration of Defendant David
Pierce's motion for an amended order pursuant to Federal
Rule of Civil Procedure 59(e). [Record No. 230] Relief is
only available under Rule 59(e) for the following reasons:
(i) to correct a clear error of law; (ii) to account for
newly discovered evidence; (iii) to accommodate an
intervening change in controlling law; or (iv) to prevent a
manifest injustice. American Civil Liberties Union of Ky.
v. McCreary Co., Ky., 607 F.3d 439, 450 (6th Cir. 2010).
Pierce's motion fails to establish grounds for relief for
any of these reasons, and will be denied.
pleaded guilty on January 28, 2015, to conspiracy to
defrauding the United States, wire fraud, and aggravated
identity theft. [Record No. 152] As part of his plea
agreement, he stipulated to a two-level increase to his
offense level pursuant to United States Sentencing Guideline
(“U.S.S.G.”) § 2B1.1(b)(2)(A), because the
offense involved ten or more victims. [Id. ¶
9(d)] Pierce filed a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255 on July 11, 2017,
arguing that this enhancement was improperly applied because
his offense did not involve ten or more victims. [Record No.
211] He contended that he received ineffective assistance of
counsel and that his plea of guilty was not knowing,
intelligent and voluntary. [Id.] The undersigned
denied Pierce's motion on December 1, 2017, concluding
that there were ten “victims” of the
defendant's crimes and the enhancement was properly
applied to his sentence. [Record No. 226] Pierce then filed
the current motion on January 3, 2018, asking the Court to
alter or amend its judgment and to make additional findings.
[Record No. 230]
first argues that the application of a different
sentencing enhancement to his base offense level-the
sophisticated means enhancement under U.S.S.G. §
2B1.1(b)(10)(C)-was based on “clearly erroneous
facts” and, therefore, an amended order is necessary to
correct this “clear error of law.” [See
Record No. 230, p. 2-10 (citing United States v.
Adams, 873 F.3d 512 (6th Cir. 2017).] This argument is
not properly before the Court. A Rule 59(e) motion
“must be filed no later than 28 days after the entry of
the judgment, ” Fed.R.Civ.P. 59(e), and “may
request only that the district court reconsider matters
actually raised before it.” Howard v. United
States, 533 F.3d 472, 475 (6th Cir. 2008). The judgment
entered on December 1, 2017, addressed only Pierce's
argument that the Court improperly applied the victims
enhancement under U.S.S.G. § 2B1.1(b)(2)(A). [Record
Nos. 226, 227] Pierce cannot seek to amend that judgment by
raising a wholly different argument that the Court improperly
applied the sophisticated means enhancement under U.S.S.G.
§ 2B1.1(b)(10)(C). That argument was rejected
by the Court at sentencing on January 28, 2015, and by the
United States Court of Appeals for the Sixth Circuit on March
3, 2016. [See Record No. 181, p. 6-21; Record No.
194] Pierce cannot challenge those rulings, two years later,
by way of a Rule 59(e) motion.
even if Pierce's argument regarding the sophisticated
means enhancement was properly before the Court, it
would not provide a basis for relief under Rule 59(e). The
Court determined that the sophisticated means enhancement
applied to Pierce's sentence, in part, because the scheme
involved using false information on W-2s, other
individuals' identities, and statements of employment
that were incorrect. [Record No. 181, p. 20-21] Pierce now
argues that this conclusion was based on “clearly
erroneous facts” because he “did not at any time
use or produce any fake W-2 forms to be used concerning this
offense.” [Record No. 230, p. 4');">p. 4] However, Pierce has
already appealed this issue to the Sixth Circuit, which
affirmed on clear error review and found that “Pierce
created fictitious jobs and W-2 forms which ultimately
resulted in over $600, 000 in illegal gain.” [Record
No. 194, p. 4');">p. 4] The fact that the Sixth Circuit has determined
that the Court's application of the sophisticated means
enhancement was not clearly erroneous undermines Pierce's
contention that the application of the sophisticated means
enhancement was based on “clearly erroneous
facts” and represents a “clear error of
law.” [Record No. 230]
Pierce reiterates his argument that the application of the
victims enhancement under U.S.S.G. § 2B1.1(b)(2)(A), was
unwarranted because his offense did not involve ten or more
victims. [Id. at p. 10-13] His argument is not
materially different from the one the Court previously
rejected. [See Record Nos. 211, 226.] “A
motion under Rule 59(e) is not an opportunity to re-argue a
case.” Sault Ste. Marie Tribe of Chippewa Indians
v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (citing
FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir.
1992)). When a party simply disagrees with the Court's
conclusions, the appropriate vehicle for relief is an appeal,
not a motion for amended judgment. See Graham ex rel.
Estate of Graham v. County of Washtenaw, 358 F.3d 377,
385 (6th Cir. 2004).
also appears to argue that the Court should amend its
restitution order of $636, 679.00, and instead hold him
liable for only $326, 000, based on Honeycutt v. United
States, 137 S.Ct. 1626 (2017). [Record No. 230, p. 13-14]
Again, this legal argument was not addressed in the judgment
Pierce seeks to amend, and cannot be raised on a Rule 59(e)
motion. See Roger Miller Music, Inc. v. Sony/ATV
Publ'g, LLC, 477 F.3d 383, 395 (6th Cir. 2007).
Further, even if the Court were to consider this argument, it
fails on the merits. Honeycutt does not apply here
because Pierce was not subject to a forfeiture judgment, but
rather an order of restitution pursuant to a conspiracy
charge. See Ferguson v. United States, 16-10, 2017
WL 5500919, at *2 (S.D. Ohio Nov. 16, 2017) (citing
Bangiyev v. United States, 14-206, 2017 WL 3599640,
at *4 (E.D. Va. Aug. 18, 2017)).
the Court will deny Pierce's request for a Certificate of
Appealability. [Record No. 230, p. 14-15] As the Court
previously determined, Pierce has failed to show that the
issues he raises are debatable among reasonable jurists or
that reasonable jurists would find this Court's
“assessment of the constitutional claims debatable or
wrong.” [Record No. 226] Likewise, reasonable jurists
would not find “it debatable whether the [motion]
states a valid claim of the denial of a constitutional
right.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Accordingly, it is hereby
1. Defendant David Pierce's motion for an amended order
under Federal Rule of Civil Procedure 59(e) [Record No. 230]
2. A Certificate of Appealability shall not issue.
 Although Pierce cites to the Sixth
Circuit's decision in United States v.
Honeycutt, 816 F.3d 362 (2016), that decision was
reversed in Honeycutt v. United ...