Cruz v. United States
| Decision Date | 19 July 2017 |
| Docket Number | Case No. 15-cv-3188 |
| Parties | BOBBY CRUZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Before the Court are Petitioner Bobby Cruz's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [1] and his motion for leave to amend his petition [18]. For the reasons set forth below, the Court denies Petitioner's 28 U.S.C. § 2255 motion [1] and his motion to amend [18]. The Court declines to certify any issue for appeal pursuant to 28 U.S.C. § 2253(c)(2), and directs the Clerk to enter judgment in favor of Respondent.
In 2011, Petitioner Bobby Cruz was indicted for multiple offenses against children. See United States v. Cruz, Case No. 11-CR-773, Dkt. 6 (N.D. Ill.). He was charged with four counts of production of child pornography in violation of 18 U.S.C. § 2251(a), involving at least three different victims (Counts 1-4). Id. at 1-4. He was charged with "cross[ing] a State line with intent to engage in a sexual act with another person who had not attained the age of 12 years" in violation of 18 U.S.C. § 2241(c), which also involved one of his child pornography production victims (Victim C) (Count 5). Id. at 5. In addition, he was charged with transportation of at least one hundred images of child pornography and a child pornography video in violation of 18 U.S.C. § 2252A(a)(1) (Counts 6-7), and possession of child pornography on a series of computers, external hard drives, and thumb drives in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 8). Id. at 6-8. The indictment alleged that most of this charged conduct occurred in either Des Plaines or Morris, Illinois, while the Aggravated Sexual Abuse Count was alleged to have occurred "in the Northern District of Illinois, Eastern Division, and elsewhere." Id. at 5.
After Petitioner was charged in the Northern District of Illinois, separate charges were filed against him in the Central District of Illinois. See United States v. Cruz, Case No. 11-CR-773, Dkt. 28, ¶ 2(b) (N.D. Ill.) ("Plea Agreement"). Those charges were for two separate counts of production of child pornography, one of which again involved Victim C. Id. ¶¶ 6(b)-(c). On September 19, 2013, Petitioner requested to transfer jurisdiction over that case to the Northern District of Illinois pursuant to Federal Rule of Criminal Procedure 20. United States v. Cruz, Case No. 11-CR-773, Dkt. 26 (N.D. Ill.).
On September 30, 2013, Petitioner entered into a plea agreement in which he pled guilty to Count 5 of the indictment filed in the Northern District of Illinois (the "Aggravated Sexual Abuse Count") and the two child pornography production counts from the indictment filed in the Central District of Illinois. See Plea Agreement ¶ 5. Defendant agreed that he had "read the charges against him," "those charges ha[d] been fully explained to him by his attorney," and he "fully [understood] the nature and elements of the crimes with which he ha[d] been charged." Id. ¶¶ 3-4. He also provided a detailed factual basis supporting his plea to the Aggravated Sexual Abuse Count, admitting that these "facts establish his guilt beyond a reasonable doubt." Id. ¶ 6.
Specifically, Petitioner admitted that "on or about October 22, 2010, in the Northern District of Illinois, Eastern Division, and elsewhere, [Petitioner] crossed a State line with intent to engage in a sexual act" with Victim C. Id. ¶ 6(a). He acknowledged that he "traveled from Des Plaines, Illinois to St. Louis, Missouri, with Victim C and Victim C's family," and Petitionerhad molested and taken nude photographs of Victim C on several different occasions" prior to this trip. Id. Petitioner expressly admitted that "[a]t the time of the travel, [he] intended to engage in a sexual act with Victim C, who was 11 years old, once arriving in Missouri." Id. The plea then recounts how Petitioner abused Victim C in a hotel room after they arrived in Missouri.
In connection with Count 1 of the indictment from the Central District of Illinois, Petitioner admitted that he "created at least 167 photographs and 1 video of Victim C engaging in sexually explicit conduct" while Victim C was between 7 and 10 years old. Id. ¶ 6(b). Petitioner admitted that these photographs document his direct sexual abuse of Victim C. Id. The plea then provides additional graphic details about these photos and how Petitioner directed Victim C to expose himself so he could be photographed. Id. The agreement provides a similarly detailed factual basis for the second count from the Central District of Illinois indictment and other conduct that the parties agreed would be counted as relevant conduct for sentencing purposes. Of note, Petitioner "admit[ed] the following facts and that those facts constitute relevant conduct" related to his production of child pornography involving Victims D, E, F, G, and H, whose ages ranged from 2 to 11 years old. Id. ¶ 8.
By pleading guilty to the Aggravated Sexual Abuse Count, Petitioner faced a mandatory minimum sentence of 30 years and a maximum sentence of life imprisonment. Id. ¶ 10(a). For purposes of his advisory Sentencing Guidelines calculations, the parties agreed that Petitioner's base offense level for the Aggravated Sexual Abuse Count was 38 and he would receive a two-level enhancement pursuant to Guideline § 2A3.1(b)(3) because Victim C was in his supervisory control. Id. ¶ 12(b)(i)-(ii). Likewise, Petitioner's offense level for the two counts from Central District indictment was 40 based on the agreed applicability of various enhancements. Id.¶ 12(b)(iii)-(vii). For the other relevant conduct related to the production of child pornography involving Victims D through H, his total offense level was 38. Id. ¶ 12(b)(viii)-(x).
Pursuant to Guidelines §§ 3D1.2(d), 3D1.4, and 2G2.1, the parties agreed that Petitioner was required to receive a five-level enhancement from the highest offense level applicable to this group of offenses. Plea Agreement ¶ 12(xii). As a result, his offense level of 40 was increased to 45. Petitioner then received a three-point reduction for acceptance of responsibility (id. ¶¶ 12(b)(xiii)-(xiv)), but a five-level increase pursuant to Guidelines § 4B1.5(b) because Petitioner's "instant offenses of conviction [were] covered sex crimes" and Petitioner "engaged in a pattern of activity involving prohibited sexual conduct" (id. ¶ 12(c)). Since these calculations ultimately resulted in total offense level of 47, Plaintiff was treated as having an offense level of 43—the maximum. See U.S.S.G. § 5, Part A, App. N.2. And even though Petitioner was placed in criminal history category I, his advisory Sentencing Guidelines range was still life. See U.S.S.G. § 5, Part A; Plea Agreement ¶ 12(e). However, Government agreed to recommend a sentence of not more than 50 years' imprisonment. Plea Agreement ¶ 13.
In securing that concession from the Government, Petitioner agreed to give up various rights. Id. ¶ 24. He acknowledged that he understood that "[i]f the trial is a jury trial, the jury would be instructed that [he] is presumed innocent, that the government has the burden of proving [him] guilty beyond a reasonable doubt, and that the jury could not convict him unless, after hearing all the evidence, it was persuaded of his guilt beyond a reasonable doubt," and he was giving up that right. Id. ¶ 24(a)(iii). He stated that he "understands he is waiving all appellate issues that might have been available" and "knowingly waives the right to appeal his conviction, any pre-trial rulings by the Court, and any part of the sentence (or the manner in which that sentence was determined), including any term and fine within the maximumsprovided by law * * * in exchange for the concessions made by the United States in this Agreement." Id. ¶ 24(b). He also "waive[d] his right to challenge his conviction and sentence, and the manner in which the sentence was determined * * * in any collateral attack or future challenge, including but not limited to a motion brought under Title 28, United States Code, Section 2255." Id. This waiver "d[id] not apply to a claim of involuntariness, or ineffective assistance of counsel, which relates directly to this waiver or its negotiation." Id. Petitioner further acknowledged that if he violated any term of this agreement, the Government could move to prosecute Petitioner or resentence him regardless of the concessions agreed to in the plea. Id. ¶ 34. In signing the plea, Petitioner represented that he "understands and voluntarily accepts and each and every term and condition of this Agreement." Id. ¶ 36.
Id. at 7. In discussing the effect of civil commitment laws on the incapacitation purpose of sentencing embodied in 18...
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