Potts v. U.S., Civil Action No. 3:06-CV-0201-G.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtA. Joe Fish
Citation566 F.Supp.2d 525
PartiesNorman POTTS, Petitioner, v. UNITED STATES of America, Respondent.
Docket NumberCriminal Action No. 3:04-CR-321-G ECF.,Civil Action No. 3:06-CV-0201-G.
Decision Date17 July 2008
566 F.Supp.2d 525
Norman POTTS, Petitioner,
v.
UNITED STATES of America, Respondent.
Civil Action No. 3:06-CV-0201-G.
Criminal Action No. 3:04-CR-321-G ECF.
United States District Court, N.D. Texas, Dallas Division.
July 17, 2008.

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Norman Potts, Loretto, PA, pro se.

Marc W. Barta, Aisha Saleem, U.S. Attorney's Office, Dallas, TX, for Respondent.

ORDER

A. JOE FISH, Senior District Judge.


After reviewing all relevant matters of record in this case, including the findings, conclusions, and recommendation of the United States Magistrate Judge and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the undersigned district judge is of the opinion that the findings and conclusions of the magistrate judge are correct and they are ACCEPTED as the findings and conclusions of the court.

For the reasons stated in the findings, conclusions, and recommendation, the court DENIES as moot movant's motion for summary judgment and GRANTS the motion to vacate on one claim of ineffective assistance of counsel. The court VACATES petitioner's sentence and will resentence him by separate order in light of the accurately calculated guidelines range.

SO ORDERED.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

IRMA CARRILLO RAMIREZ, United States Magistrate Judge.

Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case

Movant, a current inmate in the federal prison system, brings this Motion to Vacate, Set Aside, or Correct Sentence pursuant to the provisions of 28 U.S.C. § 2255 to challenge his federal sentence in Cause No. 3:04-CR-0321-G. The respondent is the United States of America (government).

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B. Factual and Procedural History

On October 7, 2004, the government charged movant in a two-count information. The first count charged movant with possession of child pornography in interstate commerce in violation of 18 U.S.C. § 2252A(a)(5)(B). The second count subjected certain property to forfeiture upon conviction. Movant waived indictment and entered a plea of guilty. In a Factual Resume, he admitted that on or about January 21, 2004, he "knowingly possessed material containing approximately 345 images of child pornography that had been transported in interstate and foreign commerce by computer, which include visual depictions of prepubescent minors engaged in sexually explicit conduct ... and visual images that are sadistic and depictions of violence." Additionally, he "admitted to using the internet to download images of child pornography on his home computer." He used his computer and a compact disc in the commission of the charged offense.

A probation officer ("PO") completed a Presentence Report ("PSR") from information provided by movant and independent investigation. The PO described movant's offense conduct as including three subscriber access purchases between February and April 2003 from internet sites containing child pornography. Forensic analysis of movant's computers recovered five images from his work computer and approximately 345 images from his personal computer; some of the latter portrayed sadistic conduct or other depictions of violence. The PO re-stated movant's admissions contained in the Factual Resume regarding his possession of child pornography on January 21, 2004.

The PSR reflected movant's law enforcement background, including his employment with the Department of Homeland Security at the time of his arrest. It also reflected recorded personal and family data, including a dysfunctional childhood; siblings who work as federal correctional officers; a wife who works outside the home; and two children adopted from a drug addict—one with emotional problems. According to the PSR, movant "reported a history of mental and emotional illness" ranging from depression caused by his legal situation and an addiction to sex that "came to light as a result of the discovery of the offense." Movant's counselor verified movant's "addiction to Internet pornography, including some child pornography."

Because use of Guidelines Manual ("Sentencing Guidelines" or simply "Guidelines") in effect at the time of sentencing would "violate the `ex post facto clause' of the U.S. Constitution", the PO used the November 1, 2003 Guidelines Manual that was in effect on the date movant committed the offense of conviction to calculate the sentencing range for movant. The PO calculated movant's offense level to be twenty-six with a Criminal History Category I. The offense level was increased due to specific offense characteristics, including (1) a two-level increase because the offense involved possession of more than ten items containing child pornography (§ 2G2.4(b)(2)); (2) a four-level increase due to the sadistic or violent content (§ 2G2.4(b)(4)); and (3) a four-level increase because the offense involved more than 300 images (§ 2G2.4(b)(5) (Q).

In an Addendum to the PSR, the PO rejected five objections lodged by movant: (1) the five pictures found on his work computer were likely advertisements from opened e-mails and he was not the only person who had access to the work computer; (2) two of the five images on his work computer may be duplicates; (3) he did not possess more than ten items containing child pornography because he only possessed two computers and one compact

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disc with such images; (4) he did not actively seek sadistic or violent depictions; and (5) his offense involved fewer than 300 images if duplicates were not included. Only the latter two objections are relevant to this § 2255 action.

The PO recommended rejection of movant's fourth objection because intent is irrelevant to increasing the offense level for possession of sadistic or violent depictions, pursuant to an amendment to the Guidelines that became effective November 1, 2004. Relying on USSG § 1B1.11(b)(2), the PO justified using the later amendment because it provided clarification of the prior provision rather than making a substantive change.1 With respect to the fifth objection, the PO relied on movant's stipulation that he possessed 345 images of child pornography in recommending that it be rejected.

At movant's sentencing hearing held February 1, 2005, the Court adopted the recommendations in the Addendum to the PSR and in the original PSR to the extent not inconsistent with the Addendum. (Tr. at 4.) The Court also stated on the record that it had received and reviewed four letters from friends or family of movant. (Id. at 4-5.) Movant's therapist testified about movant's addiction to fantasy and pornography and his need for treatment. (Id. at 5-7.) Movant also testified as to his continuing need for treatment and how his incarceration would impact his daughter who has a detachment disorder. (Id. at 9-10.) He testified about efforts he made to assist law enforcement personnel in apprehending other sex offenders. (Id. at 12.) Although an Assistant United States Attorney confirmed movant's cooperation, she stated that the efforts were insufficient to recommend "a 5K downward departure." (Id. at 13-14.) With very limited reservations, she recommended a sentence at the lower end of the applicable sentencing range. (Id. at 14.)

The Court recognized that although United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (decided Jan. 12, 2005) made the Sentencing Guidelines advisory only, they still provided the appropriate starting point for determining the length of movant's sentence. (Id. at 15.) From the Guidelines, it computed a sentencing range of sixty-three to seventy-eight months imprisonment consistent with the PSR presented to it. (Id. at 15-16.) After considering the various factors set forth in 18 U.S.C. § 3553 and movant's particular situation as presented to it in the PSR as well as letters from family members, it concluded that "a sentence at the lower end of the guidelines is sufficient to achieve [the] objectives for sentence in this case." (Id. at 16-18.) In reaching that conclusion, the Court stated: "I cannot find anything in this record which seems to take this case out of the guidelines range, as hard as I think that is to say, and as sympathetic I am to Mr. Potts' situation both his personal situation and his family situation." (Id. at 17.) It pronounced a sixty-three month sentence and indicated that it would recommend placement in an institution where movant could receive appropriate treatment for his sexual addiction. (Id. at 18, 22.) The Court also recommended that the placement decision take into account movant's "status as a former law enforcement officer and also the status of his two siblings as current officers in the Bureau of Prisons system." (Id. at 23.) On February 2, 2005,

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the Court entered judgment upon movant's plea and sentenced him to sixty-three months imprisonment. Movant did not appeal.

On February 1, 2006, the Court received the instant pro se motion to vacate pursuant to 28 U.S.C. § 2255 and later accepted a lengthy memorandum in support. Movant asserts that he is entitled to relief under § 2255 because he received ineffective assistance of counsel at and before sentencing. He also mentions that his attorney had "possible conflicts of interest." He does not challenge the validity of his plea. The government has filed a response in opposition to the motion to vacate with an affidavit from movant's defense attorney. Movant responded to the response with a reply brief and an affidavit from his wife attached to a motion for leave to expand the record. The government thereafter proffered a second affidavit from the defense attorney to respond to the wife's affidavit....

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  • United States v. Bacon, CRIMINAL ACTION NO. 2:09-CR-456
    • United States
    • U.S. District Court — Southern District of Texas
    • 17 Septiembre 2013
    ...46. Those statutes are part of Chapter 110. Diminished capacity does not apply in child pornography cases. See Potts v. United States, 566 F. Supp.2d 525, 543 & n.7 (N.D. Tex. 2008). Although the guidelines are no longer mandatory, this Court is required to consider them and use them as a s......
  • Lincks v. United States, 3:20-cv-01603-B-BT
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • 27 Agosto 2021
    ...47 F.3d 739, 742 (5th Cir. 1995); United States v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994)); see also Potts v. United States, 566 F.Supp.2d 525, 537 (N.D. Tex. 2008). Each of these arguments or objections would have failed on the merits.[2] Consequently, Lincks's ineffective assistance o......
  • Newkirk v. State, No. 06–15–00160–CR
    • United States
    • Court of Appeals of Texas
    • 9 Noviembre 2016
    ...counsel's failure to request the sudden-passion instruction, he would have received a less harsh sentence. See Potts v. United States , 566 F.Supp.2d 525, 537 (N.D. Tex. 2008) ("[I]n the case of ineffective assistance at sentencing, prejudice is established if the movant demonstrates that h......
  • Barajas-Sanchez v. United States, 3:11-CV-3226-K
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • 4 Diciembre 2012
    ...what the investigation would have revealed and how it would have altered the outcome of the proceeding. Potts v. United States, 566 F. Supp. 2d 525, 537 (N.D. Tex. 2008), quoting United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). This he has not done because he has cited to no witn......
  • Request a trial to view additional results
10 cases
  • United States v. Bacon, CRIMINAL ACTION NO. 2:09-CR-456
    • United States
    • U.S. District Court — Southern District of Texas
    • 17 Septiembre 2013
    ...46. Those statutes are part of Chapter 110. Diminished capacity does not apply in child pornography cases. See Potts v. United States, 566 F. Supp.2d 525, 543 & n.7 (N.D. Tex. 2008). Although the guidelines are no longer mandatory, this Court is required to consider them and use them as a s......
  • Lincks v. United States, 3:20-cv-01603-B-BT
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • 27 Agosto 2021
    ...47 F.3d 739, 742 (5th Cir. 1995); United States v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994)); see also Potts v. United States, 566 F.Supp.2d 525, 537 (N.D. Tex. 2008). Each of these arguments or objections would have failed on the merits.[2] Consequently, Lincks's ineffective assistance o......
  • Newkirk v. State, No. 06–15–00160–CR
    • United States
    • Court of Appeals of Texas
    • 9 Noviembre 2016
    ...counsel's failure to request the sudden-passion instruction, he would have received a less harsh sentence. See Potts v. United States , 566 F.Supp.2d 525, 537 (N.D. Tex. 2008) ("[I]n the case of ineffective assistance at sentencing, prejudice is established if the movant demonstrates that h......
  • Barajas-Sanchez v. United States, 3:11-CV-3226-K
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • 4 Diciembre 2012
    ...what the investigation would have revealed and how it would have altered the outcome of the proceeding. Potts v. United States, 566 F. Supp. 2d 525, 537 (N.D. Tex. 2008), quoting United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). This he has not done because he has cited to no witn......
  • Request a trial to view additional results

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