United States v. Bacon, CRIMINAL ACTION NO. 2:09-CR-456
| Decision Date | 17 September 2013 |
| Docket Number | CIVIL ACTION NO. 2:12-CV-310,CRIMINAL ACTION NO. 2:09-CR-456 |
| Parties | UNITED STATES OF AMERICA v. WELLES D BACON |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court is Movant Welles D. Bacon's (Bacon) motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, along with his Memorandum in Support. D.E. 98, 99. The government filed a combined response and motion to dismiss, and also filed affidavits from defendant's counsel. D.E. 107, 108, 109. Bacon filed a reply, a supplemental reply, medical records, and a second affidavit. D.E. 112, 113, 114, 118, 119. After considering the motion, the evidence, and the record from Bacon's original criminal proceedings, and for the reasons stated herein, the Court denies Bacon's motion and denies him a certificate of appealability.
This Court has jurisdiction pursuant to 28 U.S.C. § 2255.
Bacon was indicted on June 10, 2009, on five counts of possession of child pornography. D.E. 1. He was charged with multiple violations of 18 U.S.C. §§ 2252(A)(a)(5)(B), 2252A(b)(2), and 2256(8)(A). Each count alleged possession of a different computer file stored on at least three different mediums, all on or about February 6, 2009. Id.
Bacon was arrested on June 11, 2009. He appeared in federal court with his retained counsel Grant Jones. He was released on bond. D.E. 7, D.E. 65. Bacon was advised of the charges against him and his constitutional rights. Id. at 3-5.
Id. at 4-5 (emphasis added). Bacon denied that he had been recently treated for mental illness or drug or alcohol addiction. Id. at 5.
Bacon entered into a plea agreement with the government in July 2009. D.E. 25. In exchange for his plea of guilty to count four of the indictment, the government agreed to recommend that he be given maximum points for acceptance of responsibility, to recommend a sentence at the lowest end of the applicable guideline range, and to dismiss the remaining counts of the indictment after sentencing. Id. at ¶¶ 1, 2. The plea agreement also stated that "Neither the Government nor any law enforcement officer can or does make any promises or representations as to what sentence will be imposed by the Court." Id. at ¶ 5. The agreement also acknowledgedthat Bacon's sentence would be determined with reference to the sentencing guidelines, and stated that "the Court may impose any sentence not more than 10 years imprisonment which is the maximum term provided for a violation of 18 U.S.C. § 2252, and that the sentence to be imposed is within the sole discretion of the Court . . . ." Id. at ¶ 6. The agreement further pointed out that any estimate of the probable sentencing range he received from his attorney, the Probation Office of the government was "a prediction, not a promise" and is not binding on the Court. Id. at ¶ 7. The agreement was signed by Bacon and attorney Jones. Id. at p. 5.
At rearraignment, Bacon was questioned by the Court. He testified that he had attended college, spent 29 years in the Marine Corps, was in good physical condition, had never had any substance abuse problems, had never been treated for a mental condition and believed he was competent to proceed. D.E. 67 at 6-7. Counsel Jones agreed he was competent. Id. at 8. Bacon further testified that he had enough time with counsel, had discussed the charges against him, counsel answered his questions and made time to see him or talk to him as necessary and Bacon did not need more time with counsel. Id. Bacon professed to be satisfied with the advice and efforts of counsel. Id. at 9. The government recited the elements of the offense of possession of child pornography. Id. at 10.The Court reviewed Bacon's trial rights with him. Id. at 11-13. Bacon testified he understood these rights and had discussed them with counsel. Id. at 13.
The government summarized the provisions of the plea agreement. Id. at 13-15. Bacon testified that the agreement was the entire agreement and he understood it. Id. at 15. The Court admonished Bacon that the Court was not a party to the plea agreement and the agreement was not binding on the Court, that Bacon would not know until sentencing whether the Court would accept any of the recommendations and at that time it would be too late for Bacon to withdraw his guilty plea. Bacon testified he understood. Id. at 16. Bacon identified his signature on theagreement and testified that he read it completely and discussed it with counsel before he signed it. Id. at 16.1 The Court advised Bacon of the maximum punishment.2 Id. at 16-17. The Courtalso advised Bacon that if he violated his supervised release, he could be subject to revocation and a new term of imprisonment and could go in and out of the Bureau of Prisons several times beginning with his guilty plea. Id. at 18-19. Bacon testified he understood the full consequence of entering a guilty plea. Id. at 19. The Court discussed potential enhancements to Bacon's guideline calculation such as distribution, the number of images, the sadistic and masochistic nature of the images, involvement of children under age 12, the use of a computer, and whether there was a pattern of activity involving the sexual abuse or exploitation of children which would add 5 levels. Id. at 19-20. Bacon testified he had discussed these concepts with his attorney and understood them. Id. at 21.
The Court advised Bacon that counsel's view of the guidelines was not necessarily the same as the Court's and until after the preparation of the Presentencing Investigation Report (PSR), and after the sentencing hearing, the Court would not know what his sentence would be. Id. Bacon acknowledged that the images in count four involved a real child, not a computer generated image, that the child was under 12 years old, that the acts portrayed were, by definition, sadistic/or masochistic for the child. Id. at 21-24.3 Bacon testified that it was his decision to plead guilty and his decision was made voluntarily.4
The AUSA summarized the facts related to count four of the indictment and related to relevant conduct. Id. at 25-31. Bacon agreed to the factual recitation, except for the allegation that he removed images from his laptop computer to avoid detection by Customs. Bacon acknowledged he used his personal computer to download child pornography while he wasoverseas and after he returned to Corpus Christi, Texas. Id. at 31-32.5 Bacon then pled guilty to count four of the indictment. Id. at 32.
The Court ordered preparation of the PSR. D.E. 16. After his guilty plea at rearraignment, Bacon substituted new counsel. D.E. 18, 19.
The PSR calculated Bacon's base offense level to be 18 pursuant to U.S.S.G. § 2G2.(a)(1). D.E. 22 at ¶ 24. His base offense level was increased by two points due to the age of the victim, less than 12 years old, pursuant to U.S.S.G. § 2G2.2(b)(2). Id. at ¶ 25. He received four more points because the offense involved sadistic or masochistic conduct, two more because the offense involved the use of a computer, and five additional because the offense involved 600or more images. Id. at ¶¶ 26-28. His adjusted offense level was 31. After credit for acceptance of responsibility, Bacon's total offense level was 28. Id. at ¶ 36.
The Probation Department interviewed Bacon's daughters. During those interviews, Probation learned of allegations that two of Bacon's daughters were sexually abused by him beginning at ages 3 and 5 and continuing until each daughter's mid-teens. Id. at ¶¶ 44-45.
Id. at ¶ 77. Additionally, the PSR noted that if the number of images substantially under represents the number of minors depicted, an upwards departure may be warranted. Bacon possessed 22 still images and 109 videos which equate to 8197 images. Id. at ¶ 78.
After the PSR was prepared,...
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