Lehrman v . United States CV-02-323-M 10/29/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Norman Lehrman, Petitioner

v. Civil N o . 02-323-M Opinion N o .

United States of America, Respondent

O R D E R

Petitioner, Norman Lehrman, seeks post-conviction relief

under the provisions of

. Lehrman was convicted

by a jury of one count of conspiracy to commit mail fraud, two

counts of making false statements to an agency of the United

States, and twenty-two counts of mail fraud, in connection with a

scheme designed to defraud the Medicare program. His convictions

were affirmed on appeal. See United States v . Lehrman, N o . 00-

1855, slip o p . (December 2 1 , 2001).

In his petition, Lehrman generally raises the same issues

raised earlier in his direct appeal – e.g., challenging the

applicability of enhancements used in calculating his sentencing

range under the United States Sentencing Guidelines, and

suggesting that Guideline sentencing factors somehow constitute additional crimes, that must be charged in an indictment. He

also claims that his defense counsel provided constitutionally

deficient representation when he failed to recognize either the

inapplicability of various Guideline sentencing factors, o r ,

failed to argue that absent an indictment charging those factors

as “offenses,” no enhancements were legally permissible.

Petitioner is wrong on all aspects of his petition. His

sentence was properly calculated under the Guidelines, and did

not exceed the statutory maximum sentence applicable to his

crimes of conviction.

Secondly, applicability of Guideline

sentencing factors (e.g., “Role in the Offense”) are properly

determined by the sentencing judge, by a preponderance of the

evidence, and not by a jury, beyond a reasonable doubt. See

United States v . Caba,

(1st Cir. 2001). Defense

counsel did not provide constitutionally deficient legal

representation by failing to argue what are meritless legal

points.

Because the petition and the files and records of the case

conclusively show that the petitioner is entitled to no relief,

the petition is denied and the case dismissed.

2 SO ORDERED.

Steven J. McAuliffe United States District Judge

October 2 9 , 2002

cc: Norman P. Lehrman Peter E . Papps, Esq.

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