this issue. See Belford, 975 F.2d at 313. Parolin is therefore procedurally barred from raising
this issue in his § 2255 Motion. See id.

Even if this assertion is not procedurally barred, it is meritless. “It is well-established
that simply a preponderance of the evidence is all that is required for a factual finding under the
Sentencing Guidelines.” United States v. Johnson, 342 F.3d 731, 735 (7th Cir. 2003) (quoting

United States v. Porter, 23 F.3d 1274, 1277 (7th Cir. 1994)); see also United States v. Kroledge,

201 F.3d 900, 909 (7th Cir. 2000). In rare cases where “the government appear[s] to [be using]
the sentencing hearing to retry the substantive offense,” however, a higher standard may be
required. See Kroledge, 201 F.3d at 909. This is not one of those cases. Parolin pled guilty to
these offenses, and admitted to his criminal conduct in his signed plea agreement. See
Superceding Plea Agreement of Nov. 2, 1999. Parolin’s claim that his due process rights were
violated at his sentencing hearing therefore fails. See Kroledge, 201 F.3d at 909 (noting that it is
a “rare instance where a higher standard [of proof] might be justified”).

2. Parolin’s sentence did not violate Apprendi

Parolin next asserts that his sentence exceeds the maximum allowed by the rule laid down

in Apprendi, Blakely, and Booker. That rule states, “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490; Blakely,

124 S. Ct. at 2536; Booker, 125 S. Ct. at 756. Parolin brought this claim before the Seventh

Circuit in his direct appeal, and the Seventh Circuit rejected his arguments. Parolin, 239 F.3d at

930 (“the total sentence was 196 months, and thus well within the statutory maximum of 240

months. Therefore, there has been no Apprendi violation because Parolin’s sentence does not

5


his or her family”). These hardships, however, are “brought upon [the family] exclusively by
{defendant’s] criminal behavior.” Id, Parolin’s claim that his continued incarceration is cruel

and unusual punishment therefore fails.
III. CONCLUSION
For the foregoing reasons, Parolin’s Motion under 28 U.S.C. § 2255 to vacate, set aside,
or correct his sentence is denied.

IT IS SO ORDERED.

ENTER:

Cfrte fe Ay —

CHARLES RONALD NORGLE, Judge

United States District Court

DATED: August 9, 2005


There are two exceptions to the procedural default rule: (1) if the movant demonstrates
cause for failing to raise the issue and actual prejudice resulting therefrom; or (2) the court’s
refusal to consider the Constitutional issue would result in a fundamental miscarriage of justice,
which requires a showing of actual innocence. See Belford, 975 F.2d at 313 (collecting
authority); see also McCleese, 75 F.3d at 1177-78 (discussing fundamental miscarriage of
justice). In light of these principles, the court examines Parolin’s Motion.

B. Parolin’s Claims for Relief under § 2255

Parolin first asserts that his due process rights were violated at his sentencing hearing,
when the court applied a “preponderance of the evidence” standard to certain factual findings,
rather than a more rigorous “beyond a reasonable doubt” standard. See Mot. Pursuant to Title 28
§ 2255, at 3-6 (“Mot. I”). Parolin next argues that his sentence violates the rule laid down in
Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 124 S. Ct. 2531 (2004),

and United States v. Booker, 125 S. Ct. 738 (2005). See Mot. I, at 7-10; Amend. to Pending §

2255 Mot. (filed July 1, 2004), at 2-5 (Mot. III”). Parolin also challenges the court’s application
of the federal Sentencing Guidelines. See Mot. I, at 11-14. Finally, Parolin asserts that due to
his suffering from Parkinson’s disease, his continued incarceration violates the “cruel and
unusual punishments” clause of the Eighth Amendment. See Amend. to Pending 2255 Mot.
(filed December 24, 2002) (Mot. II”).

1. Parolin’s due process rights were not violated at the sentencing hearing

Parolin asserts that the court used an incorrect “preponderance of the evidence” standard
at his sentencing hearing. However, Parolin failed to raise this issue on direct appeal See

Parolin, 239 F.3d at 924. Parolin has not shown cause for, or prejudice from, his failure to raise

4


exceed the statutory maximum”). Parolin is thus procedurally barred from bringing this claim in
his § 2255 Motion. See Belford, 975 F.2d at 313; see also McCleese, 75 F.3d at 1177 (§ 2255
motions are “neither a recapitulation of nor a substitute for a direct appeal”). Parolin’s

Apprendi claim therefore fails.

3. Parolin may not challenge the court’s application of the Sentencing Guidelines in
his § 2255 Motion

Parolin also asserts that the court improperly applied the Sentencing Guidelines to his
case. He argues that the court wrongly enhanced his sentence pursuant to Sentencing Guideline §
3B1.1. That Guideline provides that a defendant’s sentence may be enhanced if the defendant
was “‘an organizer or leader of a criminal activity.” Parolin, however, is barred from bringing this

claim in his § 2255 Motion, as he failed to bring this claim on direct appeal. See Belford, 975

F.2d at 313. Moreover, challenges to the application of the Sentencing Guidelines must
generally be brought on direct appeal. See United States v. Redding, 104 F.3d 96, 99 n.3 (7th
Cir. 1996) (“arguments based on the Sentencing Guidelines must be raised on direct appeal or
not atall....”); see also Martin v. United States, 109 F.3d 1177, 1178 (7th Cir. 1996).

The Seventh Circuit, however, has recognized that where there has been a “fundamental
miscarriage of justice,” it may be possible, in a § 2255 motion, to bring a claim that a district

court failed to properly follow the Sentencing Guidelines. See Allen y. United States, 175 F.3d

560, 563 (7th Cir. 1999); see also Martin, 109 F.3d at 1178. There has been no ‘fundamental

miscarriage of justice” in this case. Parolin used his position as an attorney to gain the trust of
vulnerable individuals and entities, whom he then defrauded of a total of $2.5 million. See

Parolin, 239 F.3d at 922. Parolin admitted to these criminal actions in a signed, written plea


IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JOHN F. PAROLIN, )
)
Movant, ) 02 C 4510
)
v. )
) Honorable Charles R. Norgle
UNITED STATES of AMERICA, )
)
Respondent. )

OPINION AND ORDER

CHARLES R. NORGLE, District Judge

Before the court is John F. Parolin’s Motion to vacate, set aside, or correct his sentence
brought pursuant to 28 U.S.C. § 2255. Movant, John F. Parolin (“Parolin”), challenges his
sentences for mail fraud and interstate transportation of stolen property. For the reasons stated
below, the Motion is denied.

I. INTRODUCTION!

A. Facts

Until his disbarment in May of 1995, Parolin was an attorney in the state of Illinois.
Parolin used his status as an attorney to win the trust of numerous vulnerable individuals and
entities, whom he then defrauded out of a total of approximately $2.5 million dollars. The
following is a brief description of some of Parolin’s schemes. Matilda Moss (“Moss”), a South

American woman with a limited understanding of the English language, sought Parolin’s

' The facts underlying Parolin’s convictions are recited in United States v. Parolin, 239
F.3d 922 (7th Cir. 2001).


agreement. See Superceding Plea Ag. of Nov. 2, 1999. Even with this sentence enhancement,

Parolin’s sentence was well short of the statutory maximum. See Parolin, 239 F.3d at 930. The

exception for a “fundamental miscarriage of justice” thus does not apply to this case. Parolin’s
challenge to the court’s application of the Sentencing Guidelines therefore fails.
4. Parolin’s continued incarceration is not cruel and unusual punishment

Finally, Parolin asserts that because he presently suffers from Parkinson’s disease, his
continued imprisonment constitutes cruel and unusual punishment under the Eighth Amendment.
Parolin argues that his one hundred and ninety four month sentence, because of his illness,
amounts to a life sentence. Such a sentence, he claims, would be unusually difficult for him, his
wife, and his family to bear.

The court is sympathetic to Parolin’s health concerns. However, Parolin’s poor health is

not a legitimate basis to grant relief under § 2255. See United States v. Grene, 455 F.2d 376, 377

(Sth Cir. 1972) (“t]he basis of appellant[’s] 2255 motion is that the ten consecutive two-year
sentences originally imposed . . . constitute cruel and unusual punishment since he is in poor
health .... The district court was not moved by these arguments, nor are we”); see also Garvin
v. United States, 882 F. Supp. 68, 71 (S.D.N.Y. 1995) (“*§ 2255 petitioner’s infection with AIDS
does not raise constitutional issue and does not constitute miscarriage of justice”); Biancone v.
Norton, 421 F. Supp. 1043, 1047 (D. Conn. 1976) (continued incarceration of an inmate with a
short life expectancy “does not constitute cruel and unusual punishment”).

Moreover, the court is well aware of the hardships imposed on the families of

incarcerated individuals. See United States v. Hanhardt, 353 F. Supp. 2d 957, 961 (N.D. I.

2004) (Norgle, J.) (“A defendant’s criminal conduct oftentimes has unfortunate consequences for

7


assistance regarding financial matters after the death of her husband. At the time, Moss had three
children, a second mortgage on her home, significant financial problems, and no experience in
business or financial matters. Parolin defrauded her out of $75,000 in proceeds from a life
insurance policy. Parolin defrauded Elisabeth J esswein, an elderly and financially
unsophisticated woman whose husband had also recently died, out of $315,000 in a phony loan
and stock purchase scheme. In a phony real estate scam, Parolin defrauded Klaus Wieske and
Hans Meng out of $712,500. Parolin was eventually caught and indicted under various federal
charges, including fraud and forgery.

B. Procedural History

On November 2, 1999, Parolin pled guilty to two counts of mail fraud, in violation of 18
U.S.C. § 1341, and one count of transportation of stolen property, in violation of 18 U.S.C. §
2314. On March 2, 2000, the court sentenced Parolin to one hundred and ninety-four months
imprisonment and three years of supervised release. The court also ordered Parolin to pay $2.5
million in restitution. Parolin appealed this sentence, and the Seventh Circuit affirmed. See
Parolin, 239 F.3d at 922.

Parolin filed his Motion under § 2255 on June 24, 2002. Parolin later filed two separate
amendments to this Motion. The Government filed its Response to Parolin’s amended Motion
on March 8, 2005. Parolin filed his Reply on April 18, 2005. The Motion is fully briefed and
before the court.

II. DISCUSSION
A. Standard of Decision

Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct


his sentence. This relief is available only in limited circumstances, such as where an error is

jurisdictional, of Constitutional magnitude, or there has been a “complete miscarriage of justice.”

See Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). This statute states:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set aside, or correct the
sentence.

28 U.S.C. § 2255 4 1. If the court determines that any of these grounds exists, it “shall vacate
and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28 U.S.C. § 225542. In making that
determination, the court must review the evidence and draw all reasonable inferences from it ina

light most favorable to the Government. See United States v. Galati, 230 F.3d 254, 258 (7th Cir.

2000); Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992). “Relief under § 2255 ‘is

reserved for extraordinary situations.’”” Hays v. United States, 397 F.3d 564, 566 (7th Cir. 2005)

(quoting Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996)).

Section 2255 petitions are subject to various bars, including that of procedural default.
Section 2255 petitions are “‘neither a recapitulation of nor a substitute for a direct appeal.”

McCleese v. United States, 75 F. 3d 1174, 1177 (7th Cir. 1996) (citations omitted). Therefore, a

§ 2255 motion cannot raise: (1) issues that were raised on direct appeal, unless there is a
showing of changed circumstances; (2) non-Constitutiona! issues that could have been raised on
direct appeal, but were not; and (3) Constitutional issues that were not raised on direct appeal.

See Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (overruled on other grounds by

Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994)).

3