Cameron v. United States

• Decision Date: 26 March 2018
• Docket Number: 1:17-cv-00275-JAW,1:09-cr-00024-JAW
• Parties: JAMES M. CAMERON, Petitioner, v. UNITED STATES OF AMERICA, Respondent
• Court: U.S. District Court — District of Maine

JAMES M. CAMERON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

1:09-cr-00024-JAW
1:17-cv-00275-JAW

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

March 26, 2018

RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

In this action, Petitioner James M. Cameron moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 355.) Petitioner was originally convicted on thirteen counts of child pornography-related offenses. (Judgment, ECF No. 241.) Although the First Circuit reversed the conviction and vacated the sentence on six of the counts, see United States v. Cameron, 699 F.3d 621, 654 (1st Cir. 2012), the First Circuit affirmed the 165-month sentence imposed at Petitioner's 2014 sentencing on the seven remaining child pornography counts.¹ United States v. Cameron, 835 F.3d 46, 48 (1^st Cir. 2016).

In Petitioner's section 2255 motion, he contends he is entitled to a reduction in the sentence based on Amendment 801 of the United States Sentencing Guidelines.

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(Motion at 4-8.) Amendment 801 amended USSG § 2G2.2(b)(3)(B), among other sections. USSG App. C. Supp. (Nov. 1, 2016).

Following a review of Petitioner's motion and the Government's request for dismissal, I recommend that the Court grant the Government's request, and dismiss Petitioner's motion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On February 11, 2009, a federal grand jury returned a sixteen-count indictment charging Petitioner with knowingly transporting, receiving, and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(1), (a)(2), and (a)(5)(B). (Indictment, ECF No. 3.) The Government dismissed Count 16 before trial. (Order, ECF No. 183.) After a six-day bench trial in August 2010, the Court acquitted Petitioner of Counts 2 and 8 and found him guilty of the remaining thirteen counts. (Verdict, ECF No. 179; Minute Entry, ECF No. 178.) In March 2011, the Court sentenced Petitioner to a total of 192 months in prison, to be followed by ten years of supervised release. (Judgment, ECF No. 241 at 2-3; Sentencing Order, ECF No. 240 at 42.) United States v. Cameron, No. 1:09-cr-00024-JAW, 2011 WL 890502, at *19; 2011 U.S. Dist. Lexis 24878, at *57-58 (D. Me. Mar. 11, 2011).

The First Circuit affirmed Petitioner's convictions on Counts 6, 7, 9, 10, 12, 13, and 15; however, the Court reversed the convictions on Counts 1, 3, 4, 5, 11, and 14. Cameron, 699 F.3d at 649, 652, 654. The First Circuit remanded the case for further proceedings, including a new trial on the reversed counts. Id. at 654.

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The Supreme Court denied Petitioner's petition for a writ of certiorari. Cameron v. United States, 569 U.S. 939 (2013). Following remand, this Court's amended judgment reflects that, on the Government's motion, the Court dismissed the counts the First Circuit had reversed. (Amended Judgment, ECF No. 342 at 1.)

In his section 2255 motion, Petitioner challenges the Court's decision, in the 2014 sentencing proceeding, to apply a five-level enhancement, pursuant to USSG § 2G2.2(b)(3)(B), for the distribution of child pornography in exchange for the receipt of a thing of value. (Motion at 5-6; Order on Guidelines Calculation, ECF No. 334 at 1.) After reviewing the evidence, the Court concluded there was "sufficient circumstantial evidence from which the Court infers that Mr. Cameron exchanged child pornography for other child pornography." (Order on Guidelines Calculation at 24-25.)

The Court's sentencing guidelines calculation is set forth in the Court's Findings Affecting Sentencing (ECF No. 343-1). The First Circuit summarized this Court's guidelines calculation as follows:

In its sentencing order, the district court decided four contested issues. First, it determined that it would not count the images of child pornography underlying the six counts vacated by this Court. Excluding those images, the district court counted only 179 pornographic images of minors, and so it applied a three-level enhancement under USSG § 2G2.2(b)(7)(B), rather than the four-level enhancement sought by the Government.

Second, the district court determined that some of the 179 images contained sadistic or masochistic depictions and applied a four-level enhancement under USSG § 2G2.2(b)(4).

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Third, the district court added a five-level enhancement to Cameron's offense level pursuant to USSG § 2G2.2(b)(3)(B) because it determined that Cameron distributed images for a thing of value.

Fourth, the district court applied a two-level enhancement for obstruction of justice pursuant to USSG § 3C1.1, but it recognized Cameron's "right to argue that the application of the obstruction of justice enhancement in the Guideline calculation and of a consecutive penalty in the statute for the same conduct results in a sentence that is too harsh" under 18 U.S.C. § 3553(a).

Based on these rulings and other uncontested factors, the district court ruled that Cameron had a total offense level of forty. As the district court explained at the subsequent sentencing hearing, Cameron had a base offense level of twenty-two. To that, the district court added a fourteen-level enhancement from the contested issues discussed above, a two-level enhancement for images of a prepubescent minor, and a two-level enhancement for storing images on a computer, bringing Cameron's total offense level to forty. Cameron had a criminal history category of I, which led to a Guideline sentencing range of 292 to 365 months of imprisonment.

Cameron, 835 F.3d at 49.

This Court reduced the total offense level to 38 in its analysis under 18 U.S.C. § 3553(a), because the two-level obstruction of justice enhancement was addressed in a separate 24-month sentence for obstruction of justice. Cameron, 835 F.3d at 50. The Court applied a guideline range of 235 to 293 months. Id. From the low end of the range, the Court subtracted 70 months (235 - 70 = 165), as it did in Petitioner's prior sentencing. Id. The Court sentenced Petitioner to concurrent prison terms of 165 months for the counts related to the receipt and transportation of child pornography (Counts 6, 7, 9, 10, 12, and 13), and to 120 months for the possession count (Count 15), to be followed by concurrent terms of six years of supervised release. (Amended Judgment at 3-4.) On the charge of criminal contempt, the Court sentenced

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Petitioner to a term of 24 months in prison, to be served concurrently with the sentence on the child pornography counts, and to be followed by a concurrent six-year term of supervised release. (Judgment, No. 1:13-cr-00001-JAW, ECF No. 34 at 2-3.)

Petitioner appealed from the sentence on procedural and substantive grounds; the First Circuit affirmed. Cameron, 835 F.3d at 48. The First Circuit concluded that this Court "correctly treated the Sentencing Guidelines as its starting point in calculating Cameron's sentence" and "was not required to use the national sentencing average as its starting point." Id. at 51. The First Circuit also rejected Petitioner's procedural and other arguments related to the section 3553(a) analysis. Id. at 51. Finally, the First Circuit concluded: "[T]his is plainly not the 'rare below-the-range sentence' that would succumb to a defendant's claim of substantive unreasonableness." Id. at 52 (quoting United States v. King, 741 F.3d 305, 310 (1st Cir. 2014)). The Supreme Court denied Petitioner's petition for a writ of certiorari. Cameron v. United States, 137 S. Ct. 691 (2017).

Petitioner filed his section 2255 motion on July 18, 2017. (Motion at 1.) The Government does not dispute that Petitioner timely filed the motion.² (Response, ECF No. 364 at 2 n.2.)

II. DISCUSSION

Petitioner in essence requests a sentence reduction based on Amendment 801 of the sentencing guidelines. At the time of Petitioner's 2014 sentencing,

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USSG § 2G2.2(b)(3)(B) provided for an increase of five levels to the offense level "[i]f the offense involved . . . [d]istribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain . . . ." After Amendment 801 became effective, section 2G2.2(b)(3)(B) provides: "If the defendant distributed in exchange for any valuable consideration, but not for pecuniary gain, increase by 5 levels." USSG App. C. Supp. (Nov. 1, 2016). Amendment 801 also amended USSG § 2G2.2(b)(3)(F); after the amendment, section 2G2.2(b)(3)(F) provides: "If the defendant knowingly engaged in distribution, other than distribution described in subdivisions (A) through (E), increase by 2 levels."

In addition, Amendment 801 changed some of the language in Note 1 of the Application Notes to the Commentary to section 2G2.2. The pre-amendment language provided in part: "'Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain' means any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit." The post-amendment language provides in part:

"The defendant distributed in exchange for any valuable consideration" means the defendant agreed to an exchange with another person under which the defendant knowingly distributed to that other person for the specific purpose of obtaining something of valuable consideration from that other person, such as other child pornographic material . . . .

USSG § 2G2.2 cmt. n.1.

Although Petitioner filed his request as a section 2255 motion, the Government contends the request is actually a request to modify Petitioner's sentence, which request is governed by 18 U.S.C. § 3582(c)(2) because it is based on an amendment to the sentencing

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guidelines.³ See Trenkler v. United States, 536 F.3d 85, 97 (1st Cir. 2008) (noting that the substance of a motion, rather than the title the petitioner gives it, determines whether it is a section 2255 motion).

Section 3582(c)(2) permits a reduction of a sentence when a defendant has been sentenced based on a sentencing range that was subsequently lowered by the...