Opinion
No. 3:00-CR-347-X, No. 3:01-CV-2030-X.
April 8, 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, Petitioner's motion for reconsideration of the denial of his § 2255 motion 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 reconsideration of the District Court's decision to deny his motion 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. Respondent has not filed a response to Petitioner's Motion for Reconsideration.
Procedural History
Petitioner filed a § 2255 motion in which he raised a single issue: counsel provided ineffective assistance by failing to object at sentencing to the trial court's calculation of the guidelines. United States District Judge Joe Kendall, referred the § 2255 motion to United States Magistrate Judge Paul D. Stickney for findings, conclusions and recommendation. Specifically, Petitioner argued that the trial court's application of U.S.S.G. § 2G1.1's cross reference to U.S.S.G. § 2A3.1 was 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 relied 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 claimed that because his crime did not meet the statutory definition of attempted criminal sexual abuse, the cross reference should not have been applied. The United States Magistrate Judge concluded that because the trial court applied the 1998 version of the Sentencing Guidelines that did not limit the cross reference to the statutory definition, counsel did not provide ineffective assistance. The United States Magistrate Judge recommended the § 2255 motion be denied. United States District Judge Joe Kendall adopted the recommendation and denied the § 2255 motion. When Judge Joe Kendall resigned the bench on January 31, 2002, the case was reassigned to United States District Judge Jorge Solis.
Petitioner filed a motion to reconsider the denial of the § 2255 motion. Judge Solis referred the motion for reconsideration to United States Magistrate Judge Paul D. Stickney. Petitioner contends the United States Magistrate Judge's findings and conclusions that the District Court adopted were clearly erroneous and that counsel provided ineffective assistance for failing to object to the trial court's erroneous application of the sentencing guidelines. Petitioner was sentenced on February 5, 2001. Petitioner claims the trial court should have applied the November 1, 2000 version of the guidelines if those sentencing guidelines were more favorable to him or should have applied the November 1, 1998 guidelines and considered the 2000 amendment to be a "clarifying amendment" that would preclude application of the cross-reference to attempted sexual abuse in Petitioner's case. After consideration of Petitioner's arguments, this Court finds that Petitioner's arguments upon reconsideration are correct. The Findings, Conclusions and Recommendation entered January 9, 2002 are, in fact, erroneous. This Court concludes Petitioner should be resentenced using the version of the guidelines which is most favorable to him at the time of the resentencing.
Standard of Review
Petitioner claims that he received ineffective assistance of counsel at sentencing because counsel failed to object to the trial court's use of the wrong guidelines in calculating Petitioner's base offense level. The Sixth Amendment to the United States Constitution provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const., art. VI. To successfully state a claim of ineffective assistance of counsel, a petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Glover v. United States, 531 U.S. 198, 204 (2001) (finding that prejudice flowed from an asserted error in sentencing where it resulted in an increase in a prison sentence of from six to twenty-one months).
Analysis
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). Petitioner entered a plea agreement which called for dismissal of the pornography charge and a fifty-seven month sentence on the § 2422(b) violation pursuant to FED. R. CRIM. P.11(e)(1)(C). The trial court rejected the 11(e)(1)(C) agreement, but after consulting with counsel, Petitioner decided to plead guilty without an agreement with respect to the sentence. The trial court, using the November 1, 1998 version of the United States Sentencing Guidelines, applied a cross reference to criminal sexual abuse and calculated Petitioner's base offense level at 27, which, with a Criminal History Category of II, resulted in a Guideline Range of Imprisonment of 78 to 97 months. After notice to Petitioner, the trial court departed upward six levels to a statutory maximum sentence of one hundred and eighty months. Counsel objected to the departure, but failed to object to the guideline calculation that was set out in the pre-sentence report and adopted by the trial court.
The November 1, 2000 amendment to the Guidelines clarified that for the cross reference to criminal sexual abuse or an attempt to commit criminal sexual abuse to apply, the offense must involve criminal sexual abuse or attempt to commit criminal sexual abuse, as defined in 18 U.S.C. § 2241 or 2242. Petitioner's crime did not involve criminal sexual abuse or attempted criminal sexual abuse as defined in the statute. Accordingly, the trial court erred by applying the cross reference to U.S.S.G. § 2A3.1. Counsel's failing to object to the incorrect use of the cross-reference was a constitutionally deficient performance. The sentencing court should have used the cross references to § 2A3.2, the guideline for statutory rape. Under that cross-reference, using the November 1, 1998 version of the Guidelines, Petitioner's base offense level would have been 15.
At sentencing, the trial court stressed the egregious nature of Petitioner's conduct and clearly articulated and justified its upward departure. The trial court might have considered the fifteen-year statutory maximum to be a reasonable departure even from the lower guideline range and imposed the same sentence despite counsel's objection. Nevertheless, the record is not conclusive on this point. Counsel's failure to object prejudiced Petitioner because the great disparity between a base offense level of 27 and a level of 15 and the degree of upward departure that would have been required to reach fifteen years give rise to a reasonable possibility that had counsel objected to the erroneous application of the guidelines, the trial court might have sentenced Petitioner to less than fifteen years.
Counsel strongly objected to the trial court's upward departure, and tried to convince the trial court that with counseling and defendant's strong family support and steady employment history, an upward departure was not warranted. (Sentencing transcript at 11-15.) The trial court overruled counsel's objections to the departure, stressing Petitioner's egregious conduct:
When you look at the underlying conduct of those priors, as well as this one, it's — I guess the word I could use would be frightening. I mean, if — so that we don't soft-pedal the deferred adjudication, which there could be any number of reasons why that happened, if I were a betting man, I bet it was because the 10-year-old-boy who had his penis bitten by your client and left tied to a tree may have been so traumatized that the family thought it in the best interests not to take the case to trial and put the child through additional emotional trauma. I mean, I'm just — that conjecture on my part, but that's certain within the realm of possibility.
And the other one, the other prior, that was seven years later, so apparently the deferred adjudication, the probation or whatever counseling you got, it certainly apparently didn't cure him. And I say that tongue-in-cheek because, like I said, everything I've read is that, unfortunately, pedophilia is something that you don't usually cure.
Let me turn to the — to the other prior and just for the record talk about it. The presentence report will be part of the record, but — oh, yes, I left out, the little boy that was left tied to the tree, choked him, left him tied to a tree naked with his feet barely touching the ground and bit his penis after forcing him with his hands tied, after being thrown in the trunk of a car, taken out, I guess, to the woods where the tree was, he had been forced to perform oral sex.
The second child abuse case — of course, there were two other dismissed sexual abuse of children cases in November of '79 and September of '79 that were dismissed for whatever reason that I don't know anything about the alleged facts there. But since they're dismissed, I'm not even going to consider them anyway.
But the other one, which was in '87, seven years — seven or eight years after the little-boy-tied-to-the-tree incident, he exposed his genitals to two little — two juvenile girls, 13 and 14, and was arrested and had a pistol and a pair of handcuffs along with a University City Fire Department badge all in his possession.
Oh, and I — let me backtrack. On the 10-year-old boy, he abducted that little boy after convincing him he was a policeman because he had some lights affixed to the top of his car and used that show of authority to get the little boy to go with him. And he just exposed himself to the girls, although he was armed with a pistol, had a badge and handcuffs.
And then now we have this case where I guess we've gotten more high tech where he is soliciting little boys to have oral sex with him over the internet.
And so against that history and backdrop, I am frightened that it's not really a question if there will be other child victims out there; it's more of a question of how soon that they are out there, where is why I'm contemplating what I'm contemplating.
(Sentencing Transcript at 12-14.) The trial court stated his concern that defendant's offenses span two decades which indicated his likelihood of recidivism was great. (Sentencing Transcript at 18.) The trial court continued:
And, again, I mentioned what the literature indicates about the social science with regard to those individuals who have your problem. And not all persons with your problem does it work itself outside a fantasy life use of pornography and masturbation which, you know, even though the child pornography is illegal — because it creates victims. When you have pictures of children, someone had to get those children and abuse those children to produce the product that causes people like yourself to satisfy their fantasies.
But having said that, when you've got outside of a fantasy life and start involving innocent third parties, it's a whole different ball game. And that's when people like us and me get involved.
And given everything I've read about you, I believe that — and what I know and what has prompted the Sentencing Commission to promulgate the guideline that encourages an upward departure in cases like this, I believe and do find that the likelihood of you being a recidivist is great.
You weren't charged, as I understand it, or at least it was dropped, where you were in possession of child pornography, including depictions and images of prepubescent children. And I think one was a — it just causes my skin to crawl — at one point in time was a four-or five-year-old girl being penetrated. Anyway, that offense that you're not being charged with — and this kind of indicates why an upward departure is even further indicated — you're getting the benefit of not being charged with that, and the penalties for that offense are very significant.
I believe that the criminal history category understates the seriousness of your prior offenses and the likelihood that you will be a recidivist as an additional but not necessarily strong component of a reason for upward departure. Again, the encouragement the Guidelines provide is sufficient, more than sufficient.
But additionally, as I said, there's a greater likelihood of recidivism with you, given everything that is before the Court at this time, and I'm going to depart upward because I believe, because of the likelihood of recidivism, that a proper reason for sentencing you particularly is incapacitation because it is the only way that anyone can have any assurance that you are not going to have additional children who are victims of the type of trauma you have wrought and sought to wrought in the past.
The other counts in this case were dropped which provides a statutory maximum — well, let me just — I am — I do find there's grounds for upward departure, as I've stated. I am going to depart upward. Now, the question is how much.
The other counts in this case were dropped, which provides for a statutory maximum of fifteen years. Well, with the crime you are convicted of, someone in Congress — well, I say someone, whoever proposed the bill, but a majority of the Congress of the United States of America and at least a president who signed the bill that made it the law believed that someone out there could engage in the type of conduct with which you have pled guilty to that would merit a 15-year sentence.
And with your record and for the reasons I've stated and because the instant offense before the Court is similar to your priors and because of your dangerousness to children demonstrated by your previous conduct, that all indicates to roe that you are such a person.
And so again, I am going to depart. I'm going to depart upward six levels. I'm going to sentence you at an offense level — let me get the — an offense level 33, criminal history category II. That provides for a range of 151 to 188 months.
I'm going to sentence you, Mr. Jackson, to 180 months. The 180-month sentence — again, I don't know how it will interplay with the state sentence that you said Judge Meier is going to sentence you on, but, I don't know, that's not before me. But I'm sentencing you to 180 months.
(Sentencing Transcript at 20-1.)
Petitioner urges that the trial court would have (1) found merit in counsel's objection to the application of the sentencing guidelines and then (2) departed six levels from the corrected guideline level to a sentence in the range of either 41-53 months or 51-63 months. This is unlikely because the trial court refused to accept an agreed sentence of 57 months pursuant to Fed.R.Crim. p. 11(e)(1)(C). Clearly, the trial court would have departed upward more than six levels, but how much more would require speculation.
RECOMMENDATION
This Court's Findings, Conclusions and Recommendation entered January 9, 2002, were incorrect. This Court now recommends that Petitioner's Motion to Reconsider the denial of his Motion Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255 be granted. Petitioner's § 2255 motion should be granted to the extent that the judgment should be vacated, Petitioner should be resentenced in accordance with the United States Sentencing Guidelines, and the District Court should enter a new Judgment and conviction.
Petitioner was awaiting sentencing on a state charge at the time of his sentencing in this case; his criminal history score may be different upon resentencing.
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).