Opinion
Case No.: 12-cr-00461-H-1 Case No.: 12-cr-01688-H-1 Case No.: 17-cv-00822-H
07-26-2017
MICHAEL EUGENE STEWART, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER:
(1) DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT THE SENTENCE; AND
[Doc. No. 34 in 12-cr-461.]
(2) DENYING CERTIFICATE OF APPEALABILITY
On April 24, 2017, Petitioner/Defendant Michael Eugene Stewart, proceeding pro se, filed in the United States District Court for the Southern District of California a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence by a person in federal custody. (12-cr-461-Doc. No. 34.) On May 17, 2017, the Government filed a response in opposition to Defendant's motion. (12-cr-461-Doc. No. 36.) On July 10, 2017, Defendant filed a reply. (12-cr-461-Doc. No. 37.) For the reasons discussed below, the Court denies Defendant's § 2255 motion.
Background
On May 1, 2012, a grand jury returned an indictment charging Defendant with: (1) distribution of images of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2); and (2) possession of matters containing images of sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B). (12-cr-1688-Doc. No. 1.) On November 27, 2012, Defendant pled guilty pursuant to a written plea agreement to count one of the indictment, distribution of child pornography in violation of § 2252(a)(2). (12-cr-1688-Doc. Nos. 37, 39, 43.)
In the plea agreement, the parties agreed that Defendant would be subject to a 2-level enhancement to his guideline calculations pursuant to U.S.S.G. § 2G2.2(b)(3). (12-cr-1688-Doc. No. 39 at 7.) In addition, in the plea agreement, Defendant waived "any right to appeal or to collaterally attack his sentence, except a post-conviction collateral attack based on a claim of ineffective assistance of counsel, unless the Court impose[d] a custodial sentence above the high end of the guideline range . . . recommended by the Government pursuant to this agreement at the time of sentencing." (Id. at 10.)
On June 10, 2013, Defendant filed a sentencing summary chart calculating his total offense level as 32 and his criminal history category as II and requesting an 8-level departure, resulting in an advisory guideline range of 57 to 71 months, and recommending a custodial sentence of 60 months. (12-cr-1688-Doc. No. 62.) In calculating Defendant's total offense level, Defendant applied a 2-level enhancement for distribution under U.S.S.G. § 2G2.2(b)(3). (Id.; see also 12-cr-1688-Doc. No. 61 at 2.) On June 12, 2013, the Government filed a sentencing summary chart calculating Defendant's total offense level as 34 and his criminal history category as III, resulting in an advisory guideline range of 188 to 235 months, and recommending a custodial sentence of 188 months. (12-cr-1688-Doc. No. 66.) In calculating Defendant's total offense level, the Government applied a 2-level enhancement for distribution under U.S.S.G. § 2G2.2(b)(3)(F). (Id.; see also 12-cr-1688-Doc. No. 67 at 10.)
On August 12, 2013, the Court held a sentencing hearing. At the hearing, the Court calculated Defendant's total offense level as 34 and his criminal history category as III, resulting in an advisory guideline range of 188 to 235 months. In calculating Defendant's offense level, the Court applied a 2-level enhancement for distribution under U.S.S.G. § 2G2.2(b)(3)(F). The Court then considered the § 3553(a) factors and ultimately sentenced Defendant to 108 months in custody for count one of the indictment, distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). (12-cr-1688-Doc. Nos. 71-72.) The Court granted the Government's oral motion to dismiss count two of the indictment. (Id.) The Court subsequently entered judgment on August 14, 2013. (12-cr-1688-Doc. No. 72.)
On April 24, 2017, Defendant filed the present motion pursuant to 28 U.S.C. § 2255 to vacate and correct his federal prison sentence. (12-cr-00461-Doc. No. 34.) In the motion, Defendant argues that his sentence is unlawful in light of Amendment 801, which clarified the distribution enhancement set forth in U.S.S.G. § 2G2.2(b)(3). (Id. at 1-2.)
The Court notes that Defendant filed the present § 2255 motion in Case No. 12-cr-461 even though his conviction and sentence was entered in Case No. 12-cr-1688.
Discussion
I. Legal Standards
A sentencing court may "vacate, set aside or correct the sentence" of a federal prisoner if it concludes that "the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Claims for relief under § 2255 must be based on a constitutional or jurisdictional error, "'a fundamental defect which inherently results in a complete miscarriage of justice,'" or a proceeding "'inconsistent with the rudimentary demands of fair procedure.'" United States v. Timmreck, 441 U.S. 780, 783-84 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). A district court may deny a § 2255 motion without holding an evidentiary hearing if "the petitioner fails to allege facts which, if true, would entitle him to relief, or the petition, files and record of the case conclusively show that he is entitled to no relief." United States v. Rodriguez-Vega, 797 F.3d 781, 792 (9th Cir. 2015); see 28 U.S.C. § 2255(b); United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986) ("Where a prisoner's [§ 2255] motion presents no more than conclusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required.").
II. Analysis
In the present §2255 motion, Defendant states that the United States Sentencing Commission recently issued and enacted a clarifying amendment, Amendment 801, which clarifies the scope of the 5-level enhancement provision set forth in U.S.S.G. § 2G2.2(b)(3). (12-cr-461-Doc. No. 34 at 1.) Defendant argues that following that amendment, a 5-level enhancement under U.S.S.G. § 2G2.2(b)(3) should only be applied if the defendant knowingly distributed unlawful images for the specific purpose of obtaining something of valuable consideration from the other person. (Id. at 1-2, 5.) Petitioner argues that in light of Amendment 801, he should not have received an enhancement under U.S.S.G. § 2G2.2(b)(3), and, therefore, his sentence should be corrected. (Id. at 5-7.)
Here, Defendant has failed to state a cognizable claim for relief under § 2255. "Although collateral review under section 2255 is . . . quite broad, 'it does not encompass all claimed errors in . . . sentencing.' If a petitioner does not allege lack of jurisdiction or constitutional error, an error of law will not provide a basis for habeas relief unless that error 'resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure.'" Hamilton v. United States, 67 F.3d 761, 763-64 (9th Cir. 1995) (citations omitted). Defendant's contention that he should be resentenced in light of Amendment 801 raises neither a claim of constitutional nor jurisdictional error. Further, a "'district court's failure to apply a guideline that was not effective at the time of sentencing does not give rise to a complete miscarriage of justice.'" Id. at 764. Accordingly, Defendant's claim is not cognizable under § 2255, and the Court lacks authority to resentence Defendant under § 2255 on this basis. See id. at 764 (holding that the district court lacked authority to resentence the defendant under §2255 where "[the defendant's contention below—that he be resentenced in light of Amendment 433—raised neither a claim of constitutional nor jurisdictional error").
Although the Court could construe Defendant's pro se motion and a request for resentencing under 18 U.S.C. § 3582, see id., the Court declines to do so because Defendant would also not be entitled to relief under that provision. The changes to the sentencing guidelines set forth in Amendment 801 had no effect on Defendant's guideline calculations. Amendment 801 amended U.S.S.G. "§ 2G2.2(b)(3)(F) to provide that the 2-level distribution enhancement applie[s] if 'the defendant knowingly engaged in distribution.'" United States Sentencing Guidelines, Supplement to Appx. C, Am. 801 at 145 (Nov. 1, 2016) ("[T]he Commission determined that the 2-level distribution enhancement is appropriate only in cases in which the defendant knowingly engaged in distribution."). Here, Defendant admitted that he knowingly distributed child pornography. In his written plea agreement, Defendant admitted: "That on or about August 2, 2010, [he] knowingly distributed at least 254 images and 5 videos of visual depictions of minors engaged in sexually explicit conduct via a commercially available file-sharing program." (12-cr-1688-Doc. No. 39 at 3; see also Doc. No. 37.) Thus, the 2-level distribution enhancement under § 2G2.2(b)(3)(F) remains applicable to Defendant following Amendment 801.
Available at https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/APPENDIX_C_Supplement.pdf (last visited July 25, 2017). --------
In his motion, Defendant notes that Amendment 801 also clarified the scope of the 5-level distribution enhancement set forth in U.S.S.G. § 2G2.2(b)(3)(B). (12-cr-461-Doc. No. 34 at 4-5.) But this fact is of no consequence because the Court did not apply a 5-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) at Defendant's sentencing. At sentencing, the Court applied a 2-level enhancement for distribution under § 2G2.2(b)(3)(F), not subsection (B). Accordingly, Defendant is not entitled to relief under §2255 in light of Amendment 801. /// /// ///
III. Waiver
In addition, as part of his written plea agreement, Petitioner waived his right to challenge his sentence under § 2255. (12-cr-1688-Doc. No. 39 at 9-10.) The Ninth Circuit has upheld the enforceability of waivers in plea agreements like Defendant's, explaining that the right to appeal or collaterally attack one's sentence is derived by statute, and "[a] knowing and voluntary waiver of a statutory right is enforceable." United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). The Ninth Circuit has further explained that "public policy strongly supports" plea agreements containing such waivers, reasoning that finality is "perhaps the most important benefit of plea bargaining." United States v. Navarro-Botello, 912 F.2d 318, 322 (9th Cir. 1990).
A waiver of the right to appeal or collaterally attack a sentence or conviction is "is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made." United States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016) (internal citations omitted) (citing United States v. Medina-Carrasco, 815 F.3d 457, 461 (9th Cir. 2016)); see, e.g., United States v. McTiernan, 552 F. App'x 749, 750 (9th Cir. 2014). Further, an otherwise valid waiver is not rendered unenforceable by a subsequent change in the applicable sentencing law. See United States v. Johnson, 67 F.3d 200, 202 (9th Cir. 1995) ("The fact that [a defendant] did not foresee the specific issue that he now seeks to appeal does not place the issue outside the scope of the waiver."); see also United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005) (collecting case and stating "there is abundant case law that appeal waivers worded as broadly as this one are effective even if the law changes in favor of the defendant after sentencing").
Defendant's plea agreement states in relevant part:
In exchange for the Government's concessions in this plea agreement, . . . defendant also waives, to the full extent of the law, any right to appeal or to collaterally attack his sentence, except a post-conviction collateral attack based on a claim of ineffective assistance of counsel, unless the Court imposes a custodial sentence above the high end of the guideline range . . .
recommended by the Government pursuant to this agreement at the time of sentencing.(12-cr-1688-Doc. No. 39 at 9-10.) Here, Defendant does not allege a claim of ineffective assistance of counsel in the present § 2255 motion. (See 12-cr-461-Doc. No. 34.) In addition, the Court did not impose a sentence above the high end of the guideline range recommended by the Government. Pursuant to the plea agreement, the Government recommended that the Court sentence Petitioner to 188 months in custody based on an advisory guideline range of 188 to 235 months. (12-cr-1688-Doc. No. 66.) The Court sentenced Petitioner to 108 months in custody after considering the advisory sentencing guidelines and the 18 U.S.C. § 3553(a) factors. (12-cr-1688-Doc. Nos. 71-72.) Because the present § 2255 motion is not based on a claim of ineffective assistance of counsel, and the Court imposed a sentence well below the high end of the guideline range recommended by the Government, Defendant's waiver encompasses the present § 2255 motion. See Lo, 839 F.3d at 783.
Further, in his plea agreement, Defendant represented that his waiver of his right to appeal or collaterally attack his conviction and sentence was knowing and voluntary, and Defendant does not argue otherwise. (12-cr-1688-Doc. No. 39 at 6, 12; see also Doc. No. 37.) Accordingly, Defendant waived his right to appeal or collaterally attack his sentence. See Abarca, 985 F.2d at 1014. Thus, even if Defendant's § 2255 claim had merit, it would be barred by the waiver in his plea agreement. Accordingly, the Court also denies Defendant's §2255 motion on the grounds that it is barred by the waiver in his written plea agreement.
IV. Certificate of Appealability
An appeal cannot be taken from the district court's denial of a § 2255 motion unless a certificate of appealability is issued. See 28 U.S.C. § 2253(c)(1); Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012). A certificate of appealability may issue only if the defendant "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a district court has denied the claims in a § 2255 motion on the merits, a defendant satisfies the above requirement by demonstrating "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court concludes that reasonable jurists would not find the Court's assessment of Defendant's claims debatable or wrong. Accordingly, the Court declines to issue a certificate of appealability.
Conclusion
For the reasons above, the Court denies Defendant's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. In addition, the Court denies Defendant a certificate of appealability.
IT IS SO ORDERED. DATED: July 26, 2017
/s/_________
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT