Between July 7, 2015 and August 10, 2015, Homeland Security Investigations ("HSI") identified Petitioner's computer as sharing extremely graphic child pornography files. ECF No. 1 at 33:1-13.
On October 29, 2015, HSI executed a federal search warrant at Petitioner's residence, which resulted in seizure of multiple computers, a laptop, and electronic media. ECF No. 1 at 4:10-15. When the agents arrived to execute the search warrant, Petitioner was nude, and his two minor daughters, ages 5 and 6, were in pajamas. ECF No. 39 at 4, ¶ 8. A forensic analysis confirmed that the laptop seized was positive for child pornography, identifying 63 videos and 14 images of child pornography. ECF No. 1 at 4:13-21. The laptop had been seized from a separate pool house occupied and controlled solely by Petitioner and his two minor daughters. ECF No. 1 at 8:9-19. After being Mirandized, Petitioner also admitted he owned the laptop. Id.
On March 24, 2016, Magistrate Judge Mitchell Dembin signed a warrant for Petitioner's Arrest. ECF No. 2. On May 12, 2016, just after midnight, Petitioner was arrested at the port of entry in San Diego as he crossed the border from Mexico. ECF No. 39 at 6, ¶ 17.
Defendant was ultimately sentenced to 78 months of imprisonment and 10 years of supervised release. Judgment, ECF No. 48. According to the Federal Bureau of Prisons inmate located, Petitioner is 38 years old, currently in custody at Englewood Federal Correctional Institution ("FCI"), has served 46 months of his sentence, and is scheduled for release on June 15, 2022. See https://www.bop.gov/inmateloc/.
On March 24, 2016, Respondent, the United States of America (the "Government"), filed a complaint against Petitioner for (1) distribution of images of minors engaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(2), and (2) possession of images of minors engaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(4)(B). ECF No. 1.
On June 7, 2016, Petitioner waived his right to prosecution by indictment and consented to prosecution by information. ECF No. 18. Accordingly, that same day, a two-count Information was filed, charging Petitioner with (1) distribution of images of minors engaged in sexually explicit conduct (Count One), and (2) possession of images of minors engaged in sexually explicit conduct (Count Two). ECF. No. 17.
On August 18, 2016, Petitioner consented to entering a Rule 11 plea. ECF No. 31. That same day, August 18, 2016, Petitioner signed a written plea agreement, pursuant to which he agreed to plead guilty as to Count 2 of the information, which charged Petitioner with possession of child pornography, in exchange for the Government's agreement not to (1) prosecute additional charges (e.g., under Count 1) and/or (2) seek any other upward adjustments or departures unless Petitioner breaches the agreement (the "Plea Agreement"). ECF. No. 32 at 1:21-2:4. As part of the Plea Agreement, Petitioner represented that he "had a fully opportunity to discuss all the facts and circumstances of this case with defense counsel and has a clear understanding of the charges and the consequences of this plea." Id. at 7:5-8. This Plea Agreement was signed by Petitioner on August 18, 2016. Id. at 16. As part of the Plea Agreement, Defendant also represented that he "has consulted with counsel and is satisfied with counsel's representation." Id. at 15:15-19.
The Plea Agreement also contained a provision pursuant to which he waived "to the full extent of the law, any right to appeal or to collaterally attack the conviction . . . or sentence, except a post-conviction collateral attacked based on a claim of ineffective assistance of counsel, unless the Court imposes a custodial sentence above the high end of the guideline range (which if USSG 5G1.1(b) applies, will be the statutorily required mandatory minimum sentence) recommended by the Government pursuant to this agreement at the time of sentencing." ECF No. 32 at 12:28-13:11. It also cautioned as to the ramifications of violating this waiver, providing that "[i]f at any time defendant files a notice of appeal, appeals or collaterally attacks the conviction or sentencing in violation of this plea agreement, said violation shall be a material breach of this agreement as further defined below." Id. at 13:12-14. Finally, also as part of the Plea Agreement, the parties agreed to jointly recommend Petitioner's sentencing be based on the following U.S. Sentencing Guidelines Base Offense Level, Specific Offense Characteristics, Adjustments, and Departures:
| Material involved minor(s) who had not reached age 12 [USSG § 2G2.2(b)(2)]
|
| Acceptance of Responsibility [USSG § 3E1.1]
|
ECF No. 32 at 9:5-21. At sentencing, the Government recommended 97 months. ECF No. 51 at 2:15-19.
On August 18, 2016, a change of plea hearing was held before Magistrate Judge William V. Gallo. ECF No. 34. After Petitioner was placed under oath, the Court found, inter alia, that the plea was knowing and voluntarily entered,4 there was factual and legalbasis for the plea, and with limited exceptions, Petitioner effectively waived his right to appeal or collaterally attack his sentence. Id. at 2:23-27. Accordingly, the Magistrate issued Findings and Recommendations, recommending that the district judge accept Petitioner's guilty plea to Count 2 of the information. ECF No. 34 at 4:14-16.
On September 14, 2016, after no objections were received, the Court ordered that the Findings and Recommendations of the Magistrate Judge were adopted and accepted Petitioner's guilty plea. ECF No. 38.
On November 1, 2016, after Petitioner signed his Plea Agreement but before his sentencing, the Federal Sentencing Commission revised § 2G2.2(b)(3)(F) of the Sentencing Guidelines ("Guideline 2G2.2(b)(3)(F)"), one of the factors that the parties agreed would be considered by the Court at sentencing under the Plea Agreement, to require that a defendant must have "knowingly engaged in distribution" before applying the two-level enhancement.5 U.S. SENTENCING GUIDELINES MANUAL app. C, amend. 801 (U.S. SENTENCING COMM'N (Nov. 1, 2016) (the "801 Amendment").
On November 8, 2016, prior to sentencing, a Pre-Sentence Investigation Report ("PSR") was prepared by the Probation Department indicating Petitioner had a criminal history category of "I"6, a base offense level of 18, a guideline range of 97-121 months, ECF No. 39, ¶¶ 102, and recommended a sentence of 90-months pursuant to 18 U.S.C. § 3553(a), id. at ¶ 140.
On November 16, 2016, the Government filed its Sentencing Memorandum and Sentencing Summary Chart, in which it concurred with Probation's calculation of the base offense level and guideline range but ultimately, recommended a higher sentence of 97-months. ECF. No. 41 at 9:6-9.
On December 5, 2016, Petitioner filed his Sentencing Memorandum, in which defense counsel proffered an 18-month sentencing recommendation arguing that Petitioner's guideline range could be either (1) 78 to 97-months "if the court adopts the advisory guideline range for the adjusted offense level of 28" or (2) "97 to 121-months if the court adopts the adjusted offense level of 30" and applied the +2 enhancement for "distribution" under § 2G2.2(b)(3), See ECF. Nos. 42 and 43. Although Petitioner's counsel did not mention the revision to the Sentencing Guidelines in this brief, his counsel did argue that the 2+ enhancement for distribution should not apply. See ECF No. 42 at 7-8. Petitioner's Sentencing Memorandum also noted that Petitioner was "remorseful," "accepted full responsibility for his conduct," and honestly believed that "his arrest and conviction will make him a better man and father to his children." Id. at 10:24-28.
On December 12, 2016, the Court held a sentencing hearing and began the hearing by noting that "under Booker, the Guidelines are advisory." Sentencing Hearing Transcript, ECF No. 51 at 2:14-15. The Court discussed the fact that the offense had "a base offense level of [1]8,7 increased by two levels under 2G2.2(b)(2), increased by four levels under 2G2.2(b)(4), increased by a further two levels under 2G2.2.(b)(6), increased by an additional two levels under 2G2.2(b)(3), and then increased by an additional five levels under 2G2.2(b)(7)," which resulted "in an adjusted offense level of 33." Id. at 31:15-22. The Court noted that "the Government had recommended a three-level reduction for acceptance of responsibility," and due to the fact that Petitioner had "no prior criminal history," the recommended guideline range was "97 to 121 months." Id. at 31:23-32:1...
