Opinion
No. 3:00-CR-347-X, 3:01-CV-2030-X
January 9, 2002
FINDINGS CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the United States District Court for the Northern District of Texas, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS Type of case
Robert Eugene Jackson, Jr., Petitioner, seeks to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
Parties
Petitioner is a federal prisoner currently incarcerated at a federal correctional facility. Respondent is the United States of America.
Procedural Background
Petitioner was charged with Using a Facility of Interstate Commerce to Entice a Minor to Engage in Illegal Sexual Activity, in violation of 18 U.S.C. § 2422(b) and Possession of Child Pornography Using a Facility of Interstate Commerce, in violation of 18 U.S.C. § 2252A (a)(5)(B). The indictment also alleged certain of Petitioner's property was subject to a Criminal Forfeiture under 28 U.S.C. § 2253. Petitioner entered a Plea Agreement which included an agreement for a fifty-seven month sentence pursuant to FED. R. CRIM. P.11(e)(1)(C). At the sentencing hearing, the trial court rejected the Rule 11(e)(1)(C) plea agreement. The applicable Guidelines Manual in this case was the November 1, 1998 edition. (PSR ¶ 16.) In the applicable edition, for a violation of 18 U.S.C. § 2422 (b), the Sentencing Guideline Manual uses § 2G1.1, which cross references to § 2A3.1 for the calculation. This gave Petitioner a base level offense of 27, which, with a Criminal History Category of II, resulted in a Guideline Range of Imprisonment of 78 to 97 months. (PSR ¶ 48.) The PSR gave Petitioner notice that an upward departure might be warranted. (PSR ¶ 16.) The trial court warned Petitioner in open court that he would be subject to an upward departure and gave Petitioner the opportunity to withdraw his plea and proceed to trial, or persist in his plea of guilty and be sentenced in accordance with the Presentence Report (PSR), applying the United States Sentencing Guidelines (U.S.S.G.). (Sent. Tr. at 2-4.)
Pursuant to U.S.S.G. § 1B1.11(b)(1), Petitioner's base offense level was calculated using the November 1, 1998 edition of the Guidelines Manual because of ex post facto concerns. (PSR ¶ 16.)
Petitioner consulted with counsel, decided not to withdraw his guilty plea, and informed the trial court he wished to proceed with his sentencing. (Sent. Tr. at 4.) The trial court sentenced Petitioner under the cross-reference to § 2A3.1, departed upward, and sentenced Petitioner to the statutory maximum of 15 years imprisonment and a term of three years supervised relief.
Petitioner appealed to the United States Court of Appeals for the Fifth Circuit, but later sought the appeal's voluntary dismissal. The United States Court of Appeals for the Fifth Circuit dismissed Petitioner's appeal on July 17, 2001. Petitioner then filed this motion pursuant to 28 U.S.C. § 2255. The Government responded, and Petitioner filed a Reply. The § 2255 motion is before the Court for consideration.
No hearing is required on a § 2255 motion if the allegations, "viewed against the record, either fail to state a claim for relief or are `so palpably incredible or patently frivolous as to warrant summary dismissal.'" Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985), quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert denied, 470 U.S. 1058, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985). Petitioner has not requested an evidentiary hearing. A hearing is not required in this case because the record is dispositive of Petitioner's claim.
Scope of Review
The scope of post-conviction relief pursuant to 28 U.S.C. § 2255 is limited. Issues raised and decided on appeal from a judgment of conviction are not considered in § 2255 motions. United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980); Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). The statute affords judicial review only for constitutional errors and other issues that (1) could not have been raised on direct appeal and (2) will result in a miscarriage of justice if left unaddressed. See United States v. Faubion, 19 F.3d 226, 233 (5th Cir. 1994). Misapplications of the Sentencing Guidelines do not fall into either category and hence are not cognizable in § 2255 motions. See United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994); Faubion, 19 F.3d at 233. Before a Petitioner may raise an issue for the first time in a § 2255 proceeding, he must show "cause" for his procedural default in failing to raise the issue on appeal and "actual prejudice" resulting from the error. United States v. Frady, 456 U.S. 152, 168 (1982); United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992). This high hurdle ensures that final judgments command respect and that their binding effect is not disturbed by an endless series of post-conviction collateral attacks. Frady, 102 S.Ct. at 1593. The cause and prejudice test may be satisfied if it appears that counsel was ineffective. See United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995); see also United States v. Patten, 40 F.3d 774, 775 (5th Cir. 1994), cert. denied, 515 U.S. 1132 (1995). Moreover, ineffective assistance of counsel may constitute an independent basis for post-conviction relief. See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992); see also Shaid, 937 F.2d at 232.
Petitioner's Claim of Ineffective Assistance of Counsel
Petitioner raises a single issue in his § 2255 motion: counsel provided ineffective assistance by failing to object at sentencing to the trial court's application of the cross reference to § 2A3.1 because the November 1, 2000 version of the Guidelines limits the cross reference to offenses that involved criminal sexual abuse or an attempt to commit criminal sexual abuse, as defined in 18 U.S.C. § 2241 or 2242.
The government's response addresses a second issue, i.e., a claim that the trial court erred in its application of the sentencing guidelines. Petitioner's reply clarifies that the only issue for decision is his ineffective assistance of counsel claim. (Reply, filed Jan. 4, 2002.)
Examination of the Issue
The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. U.S. CONST., art. VI. To merit relief pursuant to § 2255 on a claim of ineffective assistance of counsel, a Petitioner must demonstrate that his trial counsel's performance fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 691 (1984). In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance, or that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689.A Petitioner's failure to establish either prong of the Strickland test requires the court to find that counsel's performance was not constitutionally ineffective; hence, courts are free to review ineffective assistance claims in any order and need not address both the "deficient" and "prejudice" prong if one component is found lacking. Strickland, 466 U.S. at 697. The prejudice prong of the Strickland test requires the petitioner to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.
Appendix A of the U.S.S.G. references Guideline 2G1.1 for a violation of 18 U.S.C. § 2422, the charge to which Petitioner pled guilty. Petitioner claims that trial counsel provided ineffective assistance by failing to object to the trial court's application of U.S.S.G. § 2G1.1's cross reference to U.S.S.G. § 2A3.1 as erroneous because the guidelines define the term "criminal sexual abuse" in a specific manner, that is, "if the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse, as defined in 18 U.S.C. § 2241 or 2242." Petitioner relies upon Application Note 10 in the Commentary to the November 1, 2000 edition of the Guidelines to argue that the cross-reference applies only if the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse, as defined in 18 U.S.C. § 2241 or 2242. He claims that because his crime did not meet the statutory definition of attempted criminal sexual abuse, the cross reference is inapplicable. Petitioner fails to recognize that the trial court applied the 1998 version of the Sentencing Guidelines that did not limit the cross reference to the statutory definition. (PSR ¶ 16; Sent. Tr. at 9.) The November 1, 1998 Guidelines provide at § 2G1.1(c)(2) that the Court shall apply § 2A3.1 "if the offense involved criminal sexual abuse, attempted criminal sexual abuse, or assault with intent to commit criminal sexual abuse." Case law provides a broader definition of attempted criminal sexual abuse than that provided in 18 U.S.C. § 2241 or 2242.
Petitioner's reply brief leaves no doubt that its claim is based upon the premise that the cross reference specifically contains the language "as defined in 18 U.S.C. § 2241 or 2242." (Reply brief, filed Jan. 4, 2002.)
Undercover sting cases are treated for sentencing purposes as if the defendant attempted to engage in illegal sexual activity with a real child victim. See United States v. Farner, 251 F.3d 510 (5th Cir. 2001). Any sexual indecency with a child is a crime of violence because it involves the serious risk of physical harm implicit in the disparity in size and age between an adult and child and the coercive power of an adult authority figure in relation to a child. See United States v. Velazquez, 100 F.3d 418, 422-423 (5th Cir. 1996). See also United States v. Zavala-Sustaita, 214 F.3d 601, 607 (5th Cir. 2000) (holding that conviction under Texas law which involves intentionally and knowingly exposing one's genitals to a minor for sexual arousal or gratification, without physical contact, constitutes "sexual abuse of a minor" for purposes of aggravated felony sentence enhancement of an alien convicted of reentry after removal under the Immigration and Nationality Act); United States v. Padilla-Reycs, 247 F.3d 1158, 1164 (11th Cir. 2001) (noting that where Congress intended an aggravated felony subsection to depend on federal statutory law, it explicitly included the statutory cross-reference; therefore, lack of an explicit statutory cross reference in 8 U.S.C. § 1101(a)(43)(A) indicates Congress's intent to rely on the plain meaning of the terms); United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999) (interpreting the term "sexual abuse of a minor" for purposes of 8 U.S.C. § 1101(a)(43)(A) by employing the ordinary contemporaneous common meaning of the word).
The Ninth Circuit applied U.S.S.G. § 2A3.1 to an attempted sexual crime involving minors in United States v. Butler, 92 F.3d 960 (9th Cir. 1996). In Butler, the defendant answered an ad placed by an undercover police officer posing as the mother of three young children who was looking for someone to teach her children all about sex. Butler traveled from Washington to Oregon and spoke with the "mother" in an attempt to engage in various sexual acts with three children. Butler was charged under 18 U.S.C. § 2423(b). On appeal, he argued that because the operation was a sting without young children involved, no violence or force would have been brought against them, making the trial court's application of U.S.S.G. § 2A3.1 incorrect. The appellate court held that the defendant's intent and conduct constitute attempted criminal sexual abuse of three young children.
The United States District Court for the Northern District of Texas followed Butler in a factual situation nearly identical to that in Butler, and the Fifth Circuit Court of Appeals affirmed the decision. See United States v. Rhodes, 253 F.3d 800, 805 (5th Cir. 2001). Rhodes pled guilty to traveling in interstate commerce to attempt to engage in sexual acts with a juvenile in violation of 18 U.S.C. § 2423(b). Rhodes traveled from North Carolina to Dallas, Texas in response to an internet advertisement placed by an undercover police office who impersonated a parent looking for someone to teach their 12 and 10 year old daughters how to have sex. In Rhodes, the Fifth Circuit approved the District Court's application of the rationale of the Butler decision and held that the application of U.S.S.G. § 2A3.1 to violations of 18 U.S.C. § 2423(b) was appropriate. Rhodes, 253 F.3d at 805.
"The decision to apply a guideline cross-reference is fact dependent." United States v. Morgan, 164 F.3d 1235, 1238 (9th Cir. 1999). The cross reference's applicability is determined by considering "all acts . . . committed . . . by defendant during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense," U.S.S.G. § 1B1.3(a)(1)(A), and "all harm that resulted from" and "was the object of such acts . . . ." U.S.S.G. § 1B1.3(a)(3).
According to the PSR, Petitioner engaged in the following offense conduct:
. . . On August 25, 1999 Robert Eugene Jackson, Jr. placed an advertisement on an internet site using the screen name of `Lucky Jack 11 @ yahoo.com.' Yohoo.com is an internet service provider and is a facility of interstate commerce. The ad stated that the defendant was looking for young boys to engage in oral sex in the in the Dallas/Fort Worth area and indicated he was willing to travel. On August 31, 1999, an undercover Dallas police officer, working in the Dallas Division of the Northern District of Texas, received the defendant's solicitation and responded to the ad, indicating that he was a 13 year old male.
On August 31, 1999, and continuing through October 6, 1999, Jackson continued his internet correspondence with the undercover officer, whom the defendant believed was a young boy and in graphic detail, described sexual activity that he wished to engage in with the boy. A summary of the defendant's comments include: `I am very oral, I will suck you as long as you want, you can cum in my mouth if you want, I hope that you live close to me so we can meet sometime soon, sounds like we are heading for some real good times, I can hook up most anytime you want to, am real horny right now, want to suck you good tonight, I like giving head.
The defendant arranged to meet the boy on October 6, 1999, at a shopping mall located in the Northern District of Texas, Dallas, Division, for the purpose of engaging in sexual activity. Jackson failed to show up at the agreed upon place and time, and later disclosed that he had been in an accident on the way to meet the child and wanted to set up another meeting date.
From October 6 through 11, 1999, Jackson continued his internet correspondence with the undercover officer and again arranged a date and time he would meet the young boy for the purpose of sexual activity. The internet message sent by the defendant contained graphic descriptions of sexual activity in which the defendant intended to persuade, induce and entice the 13 year old male to engage. Some of Jackson's messages included the following comments' `This time, just be ready to be sucked real good, I have been so horny the last few days, jacking off does not seem to help, see you Wednesday.'
On October 13, 1999 Jackson arrived at the prearranged location, a shopping mall in the Northern District of Texas, Dallas Division, approached an undercover officer who was posing as a 13 year old male, and asked if he was the young boy he had arranged to meet over the internet. The defendant was then arrested by authorities and taken to the Child Exploitation Office at the Dallas Police Department where he was interviewed by investigating officers. During this interview, Jackson admitted corresponding with the investigating officer whom he believed to be a 13 year old male. The defendant also gave consent to search his vehicle. During this search, authorities found 4 tablets of Viagra, a map to the meeting location and a cellular telephone.
On October 13, 1999, a search [pursuant to a] warrant was conducted at the defendant's residence in Boyd, Texas. Authorities located and seized various computer equipment, discs, photographs, and videos which contained child pornography or which were utilized to receive distribute or view child pornography. Special Agent Flinchbaugh revealed that authorities found in excess of 1,000 pornographic images depicting both male and female children engaging in illegal sexual acts with adults. Some of the photographs were of prepubescent children. One such image was that of a female child, approximately 4 to 5 years of age, being penetrated vaginally by an adult male.
Petitioner was released on bond, but the trial court revoked Petitioner's bond and ordered him detained when pretrial services officers found a 12 gauge shotgun with five shotgun shells on Petitioner's premises.
Petitioner claims the body of case law which interprets attempted criminal sexual abuse of a minor broadly has no application here; nevertheless, Petitioner has not pointed to any case holding that (1) facts constituting a violation of 18 U.S.C. § 2241 or 2242 are a requisite for the application of the cross reference under the November 1, 1998 sentencing guidelines, or (2) a counsel's failure to object to the cross reference under similar circumstances constitutes ineffective assistance of counsel. The Nov. 1, 1998 guidelines did not bind the trial court to the statutory definition of attempted sexual assault and preclude the trial court's application of the cross reference in this case. Given the facts and nature of Petitioner's crime and the lack of a specific guideline reference to 18 U.S.C. § 2241 or 2242, Counsel was not deficient for failing to object to the application of the cross-reference. Petitioner has failed to prove the trial court would have sustained the objection. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) (holding counsel's failing to make meritless objection is not ineffective assistance; it is the very opposite). Moreover, Petitioner has failed to prove that had counsel objected, the outcome would have been more favorable.
Petitioner's argument that an upward departure without the cross reference to an attempt to commit criminal sexual abuse would have resulted in a more favorable outcome is based upon the assumption that the November 1, 2000 Guidelines for Statutory Rape are applicable.
RECOMMENDATION
The Court recommends that Petitioner's Motion to Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255 be denied.INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417(5th Cir. 1996) (en banc).