Hoover v. United States
| Decision Date | 21 December 2016 |
| Docket Number | 1:15-cv-00395-JAW,1:13-cr-00018-JAW |
| Parties | WADE ROBERT HOOVER, Petitioner, v. UNITED STATES OF AMERICA, Respondent |
| Court | U.S. District Court — District of Maine |
In this action, Petitioner Wade Robert Hoover moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 65; Attachments, ECF Nos. 65-1 to 65-12.) Following a guilty plea, Petitioner was convicted of sexual exploitation of two minors to create a visual depiction of the conduct, and possession of child pornography. (Judgment, ECF No. 38 at 1.) The Court sentenced Petitioner to 480 months in prison. (Id. at 2.) Petitioner appealed from the sentence, and the First Circuit affirmed. United States v. Hoover, No. 13-1886 (1st Cir. June 25, 2014). The Supreme Court denied Petitioner's petition for a writ of certiorari. Hoover v. United States, 135 S. Ct. 299 (2014).
Petitioner asserts the following grounds, each of which appears to include a related allegation of ineffective assistance of counsel: (1) federal jurisdiction is lacking; (2) Petitioner's initial detention on state charges violated his federal statutory and constitutional pre-trial rights; (3) the Government pursued the charges knowing they were based on false information; (4) Petitioner did not knowingly and intelligently waive indictment or plead guilty; (5) the sentence was based on an unreasonable determination of the facts; (6) the sentencing judge was biased against Petitioner because the victims were male children; (7) the Court erred in finding that a victim of the possession crime met the causation requirement for a grant of restitution; and (8) the cumulative errors violated due process and resulted in a fundamental miscarriage of justice.
The Government filed a response, through which response the Government moved for summary dismissal. (Response, ECF No. 85 at 1.) Petitioner subsequently filed a reply in opposition to the request for dismissal. (Reply, ECF No. 91 at 1.)
Following a review of Petitioner's motion and reply, the Government's request for dismissal, and the record, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.
The following is a summary of the Government's version of the offense, which version Petitioner told the Court at his plea hearing was true to the best of his knowledge. (Prosecution Version, ECF No. 23; Transcript of Initial Appearance, Waiver of Indictment, Arraignment, and Guilty Plea ("Plea Tr."), ECF No. 47 at 19.)
Law enforcement, while monitoring a peer-to-peer network in August and September 2012, identified known child pornography videos associated with a computer at an internet protocol address that law enforcement tracked to Petitioner's then employer, an organization with an office in Augusta, Maine. (Prosecution Version at 1.) Law enforcement visited the location on October 3, 2012. (Id.) A personal laptop computer in Petitioner's office had an assigned internal internet protocol address that matched the one identified by law enforcement. (Id.) Petitioner was excused from a meeting, and, after law enforcement explained to him that he was not under arrest and not obligated to answer questions, Petitioner admitted that he had logged onto a peer-to-peer network and downloaded child pornography to his personal laptop computer while at work. (Id. at 1-2.)
Petitioner consented to a preview of his laptop computer; officers used a mobile forensic laboratory at the scene, and they found twelve still images and one video depicting a young boy's genitals and a man sexually abusing the boy. (Id. at 2.) The officers spoke again with Petitioner; the interview and a subsequent investigation revealed that Petitioner had sexually abused a male minor in April 2012. (Id.) Petitioner photographed the abuse with an Olympus digital camera and stored the pictures on a laptop hard drive. (Id.) Two external hard drives also seized from Petitioner on October 3, 2012, and searched pursuant to warrants, contained images and movies, which Petitioner made, that depicted him sexually abusing a different male minor on various occasions from 2008 to 2011. (Id. at 2-3.)
The computer and external hard drives also contained other images, not made by Petitioner, that depicted minors engaged in sexually explicit conduct. (Id. at 3.) The images included videos that law enforcement had identified through the peer-to-peer network monitoring conducted in August and September 2012. The camera, computer, and external hard drives were manufactured outside Maine. (Id.)
According to the presentence investigation report, which Petitioner told the Court at sentencing was accurate, the State of Maine arrested Petitioner on October 3, 2012, and charged him in Kennebec County with possession of sexually explicit material depicting a minor, and the State charged him on April 2, 2013, in Somerset County with gross sexual assault. (Sentencing Tr., ECF No. 48 at 3-4.)
On October 5, 2012, law enforcement filed a one-count criminal complaint in this Court, charging Petitioner with sexual exploitation, pursuant to 18 U.S.C. § 2251(a), (c). (Complaint, ECF Nos. 1, 7 (redacted version) at 1.) According to the presentence investigation report, the State dismissed the charge of possession of sexually explicit material on December 7, 2012, in lieu ofthe federal prosecution. On December 10, 2012, Petitioner waived a preliminary hearing on the federal charge, and the Court ordered Petitioner detained pending trial. (Waiver, ECF No. 14; Order, ECF No. 15.)
On February 5, 2013, Petitioner was charged, by a two-count information, with sexual exploitation of two minor children, 18 U.S.C. § 2251(a), (e), and with possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B). (Information, ECF No. 19.) At a hearing in February 2013, Petitioner waived indictment, and, following a plea hearing conducted pursuant to Fed. R. Crim. P. 11, he pled guilty to both counts. (Plea Tr. at 9, 24.)
At the sentencing hearing, held in July 2013, the Court made the following sentencing guidelines calculations: As to one of the victims (Male Minor Child "A"), the base offense level was 32, pursuant to U.S.S.G. § 2G2.1(a), to which level the following were added: four levels because the victim was younger than twelve years, pursuant to U.S.S.G. § 2G2.1(b)(1)(A); two levels because Petitioner subjected the victim to anal sex, pursuant to U.S.S.G. § 2G2.1(b)(2)(A); four levels because Petitioner produced videos in which he anally penetrated the victim with his penis, pursuant to U.S.S.G. § 2G2.1(b)(4); and two levels because the minor victim spent the night at Petitioner's house and elsewhere and was in his care and custody, pursuant to U.S.S.G. § 2G2.1(b)(5). (Sentencing Tr. at 38-39.) The resulting adjusted offense level was 44. (Id. at 39.)
As to the other victim (Male Minor Child "B"), the calculations were the same, but the four-level enhancement for the victim, pursuant to U.S.S.G. § 2G2.1(b)(4), was based on the Court's finding that Petitioner penetrated the victim anally with Petitioner's penis and fingers, and with two unidentified objects. (Id.) The resulting adjusted offense level was 44. (Id. at 39.)
As to the possession of child pornography count, the base offense level was 18, pursuant to U.S.S.G. § 2G2.2(a)(1), to which level the following were added: two levels because the victimswere prepubescent minors, pursuant to U.S.S.G. § 2G2.2(b)(2); two levels because Petitioner distributed the pornography, pursuant to U.S.S.G. § 2G2.2(b)(3)(F); four levels because Petitioner possessed images of child pornography that portrayed sadistic or masochistic conduct, or other depictions of violence, pursuant to U.S.S.G. § 2G2.2(b)(4); five levels because Petitioner engaged in a pattern of activity involving sexual abuse or exploitation of a minor, pursuant to U.S.S.G. § 2G2.2(b)(5); two levels because Petitioner used a computer, pursuant to U.S.S.G. § 2G2.2(b)(6); and five levels because Petitioner possessed 600 or more images, pursuant to U.S.S.G. § 2G2.2(b)(7). (Id. at 40.) The resulting adjusted offense level was 38. (Id.)
The Court determined that the multiple count adjustment raised the offense level by three to 47, pursuant to U.S.S.G. § 3D1.4, and the Court raised the level by five to 52, pursuant to U.S.S.G. § 4B1.5(b)(1). (Id. at 40-41.) The Court reduced the offense level by three to 49 because Petitioner accepted responsibility, pursuant to U.S.S.G. § 3E1.1. (Id. at 41.) The Court then concluded that the total offense level was 43 rather than 49, because 43 is the highest offense level recognized in the sentencing guidelines table. (Id.)
The Court determined that Petitioner's criminal history placed him in Category I, which, combined with a total offense level of 43, yielded an applicable sentencing guidelines range of life. (Id.) The Court concluded that the statutory maximum applied because it was less than the guidelines range, and, therefore, the guidelines range was determined to be 480 months of incarceration. (Id.) The guidelines range for supervised release was five years to life. (Id.) The Court noted Petitioner's objections to the presentence investigation report; Petitioner objected to the four-level increase for sadistic behavior, and to the cross-reference set forth in U.S.S.G. § 2G2.2(c).1 (Id. at 41-42; Petitioner's Sentencing Memorandum, ECF No. 29 at 4-8.)
The Court then considered the sentencing factors, particularly the history and characteristics of Petitioner, the nature and circumstances of the offense, and the need to protect the public, pursuant to 18 U.S.C. § 3553(a). (Sentencing Tr. at 42.) Ultimately, the Court sentenced Petitioner to 360 months on Count 1 and to 120 months on Count 2, to be served consecutively, for a total term of 480 months of imprisonment. (Id. at 51.) The Court imposed a life term of supervised release....
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