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Ochocki v. United States

United States District Court, D. South Dakota, Southern Division

March 13, 2019

SCOTT ALLEN OCHOCKI, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION

          Lawrence L. Piersol United States District Judge

         Scott Allen Ochocki ("Ochocki"), a federal inmate, has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, Docs. 1 & 3, and Motion to Proceed In Forma Pauperis, Doc. 4. The Court has conducted a preliminary review required by Rule 4(b)[1] of the Rules Governing Section 2255 Proceedings, and the Court has determined that Ochocki is not entitled to relief under § 2255.

         BACKGROUND

         On August 5, 2008, Ochocki was indicted on one count of possession of child pornography in violation 18 U.S.C. §§ 2252A(a)(2)(A), 2256(8)(A). Ochocki was arraigned and entered a plea of guilty on March 25, 2009.

         Sentencing for Ochocki's possession of child pornography offense occurred on July 6, 2009. Ochocki's total offense level was 25. With a criminal history category of V, the sentencing guideline range was 100 to 125 months imprisonment. However, since the statutory maximum penalty for the offense charged was 10 years, 18 U.S.C. § 2252A(b)(2) (effective Oct. 13, 2008 to Nov. 30, 2009), the applicable guideline range was 100 to 120 months imprisonment. Because Ochocki pleaded guilty to a "sex offense," his guideline range for a term of supervised release was 5 years to life. 18 U.S.C. § 3583(k); see also United States Sentencing Guidelines ("USSG") § 5D 1.2(b)(2).

         The Court sentenced Ochocki to 100 months imprisonment and 8 years supervised release. On April 9, 2010, taking into consideration Ochocki's substantial assistance under Rule 35 of the Federal Rules of Criminal Procedure, the Court amended Ochocki's sentence to 60 months imprisonment and 8 years supervised release.

         Ochocki's term of supervised release for his possession of child pornography offense commenced on December 26, 2012.

         On September 30, 2013, Ochocki pleaded guilty to a violation of Special Condition No. 12, of his Supervised Release ordering Ochocki to refrain from going or loitering "near any school yards, parks, playgrounds, arcades, or other places primarily used by children under the age of 18." Ochocki's supervised release was revoked and Ochocki was sentenced to a term of imprisonment of 12 months and 1 day and 5 years supervised release.

         On October 19, 2015, Ochocki pleaded guilty to conduct which constitutes a violation of state law, that is Ingestion, in violation of his Mandatory Conditions of Supervised Release and to a violation of Special Condition No. 17 of his Supervised Release for possessing and using a computer with access to online computer services without the prior approval of the probation office. Ochocki's supervised release was revoked and Ochocki was sentenced to a term of imprisonment of 8 months and 5 years supervised release.

         On June 5, 2017, Ochocki pleaded guilty to a violation of Special Condition No. 1 of his Supervised Release for inhaling an intoxicant. Ochocki's supervised release was revoked and Ochocki was sentenced to a term of imprisonment of 7 months and 5 years supervised release.

         On June 25, 2018, Ochocki pleaded guilty to "engag[ing] in conduct which constitutes a violation of state law, that is, Driving After cancellation-Inimical to Public Safety, Gross Misdemeanor," in violation of his Mandatory Conditions of Supervised Release. Ochocki's supervised release was revoked and Ochocki was sentenced to a term of imprisonment of 12 months and 1 day, concurrent to any sentence imposed by the State of Minnesota for the offense and to 3 years supervised release.

         On September 24, 2018, Ochocki filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. In Ochocki's § 2255 motion, he alleges that the term of supervised release imposed by the Court for his underlying offense and for 3 of his 4 revocations each exceeded the statutory maximum of 3 years for his underlying offense and that the aggregate time he was on supervised release also exceeded the 3-year statutory maximum for his underlying offense.[2] On October 9, 2018, Ochocki filed a Motion for Leave to Proceed in Forma Pauperis. Doc. 4.

         DISCUSSION

         I. Motion to ...


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