United States v. Fugit

• Decision Date: 31 December 2012
• Docket Number: No. 11–6741.,11–6741.
• Citation: 703 F.3d 248
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Timothy Andrew FUGIT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

703 F.3d 248

UNITED STATES of America, Plaintiff–Appellee,

v.Timothy Andrew FUGIT, Defendant–Appellant.

No. 11–6741.

United States Court of Appeals,Fourth Circuit.

Argued: Oct. 25, 2012.

Decided: Dec. 31, 2012.

ARGUED: Mary Beth Usher, Wake Forest University School of Law, Winston–Salem, North Carolina, for Appellant. Richard Daniel Cooke, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF:John J. Korzen, Director, Melissa Evett, Third Year Law Student, Wake Forest University School of Law, Appellate Advocacy Clinic, Winston–Salem, North Carolina, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, Lisa R. McKeel, Assistant United States Attorney, Office of the United States Attorney, Newport News, Virginia, for Appellee.

Before TRAXLER, Chief Judge, and WILKINSON and AGEE, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge TRAXLER and Judge AGEE joined.

OPINION

WILKINSON, Circuit Judge:

Timothy Andrew Fugit moves for post-conviction relief in connection with his guilty plea for enticing or attempting to entice a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b). The district court denied Fugit's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons that follow, we affirm the judgment.

I.

A grand jury in the Eastern District of Virginia returned a two-count indictment against Fugit on May 24, 2007. Count One charged him with distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1). Count Two charged him with violating 18 U.S.C. § 2422(b), which provides, in pertinent part:

Whoever, using the mail or any facility or means of interstate or foreign commerce, ... knowingly persuades, induces,entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

Count Two alone is at issue here.

On the advice of counsel, Fugit pleaded guilty to both counts on July 20, 2007. Although Fugit and the government did not enter a formal plea agreement, the parties agreed to a stipulated “Statement of Facts.” This document described the following foundations for the charges.

On November 28, 2005, while claiming to be a young girl named “Kimberly,” Fugit held a conversation in an internet chat room with an eleven-year-old girl, “Jane Doe # 2.” He asked her questions regarding her breasts and genitals, her underwear, slumber parties, and whether she had ever appeared naked in front of men. He also obtained her telephone number. Pretending to be Kimberly's father, Fugit telephoned Jane Doe # 2 shortly thereafter and engaged her “in an inappropriate sexual conversation.” He asked whether she had “seen a grown man naked,” whether “she minded if he came in to check on her while she was naked,” whether “she would mind seeing him naked,” and whether she would “get naked for him.” Tracking the text of 18 U.S.C. § 2422(b), the Statement of Facts concluded its discussion of this incident by noting that Fugit “admits that he knowingly persuaded, induced, enticed or coerced Jane Doe # 2 to engage in a sexual activity, to wit; Taking Indecent Liberties with Children, in violation of § 18.2–370 of the Code of Virginia 1950, as amended, for which he could be charged.”

Likewise, on December 12, 2005, once more posing as “Kimberly,” Fugit chatted online with a ten-year-old girl, “Jane Doe # 1,” and obtained her telephone number. Approximately five minutes later, he telephoned her, pretended to be Kimberly's father, and engaged her “in an inappropriate sexual conversation.” The Statement of Facts further described how this latter incident precipitated an extensive police investigation. During the execution of a search warrant at his residence, Fugit told police that he had “attempted to contact children on the computer and telephone” and that an internet account of his had been “bumped” several times because of inappropriate contact with minors. Law enforcement discovered, “among other things” on Fugit's computer, that he had once distributed a child pornography image over e-mail.

Additionally, at his sentencing hearing, Fugit effectively admitted the facts contained in the pre-sentence report (PSR) prepared by the probation office. Specifically, he contested only one allegation, which is not at issue here, and affirmed that the remainder of the factual background was error-free. The PSR revealed a great deal of information beyond that contained in the Statement of Facts.

Apparently referencing the incidents discussed above, the PSR described how Fugit, in claiming to be Kimberly's father, asked Jane Doe # 2 “to masturbate and take her shirt off” and repeatedly demanded that she remove her pants. And with regard to Jane Doe # 1, among other statements, Fugit “informed her of the rules he would impose” if she spent the night at his house, “instructed her to call him ‘Daddy,’ ” and stated that he “would perform a ‘finger test’ on [her] by rubbing her all over with his finger.” Additionally, he said “that he would allow her to touch his penis” and asked her “to take her clothes off.”

Moreover, the PSR made clear that the incidents involving Jane Does # 1 and # 2 were anything but isolated occurrences. Investigation revealed that Fugit had participated in internet chats with 129 individuals who appeared to be children, twelve of whom police confirmed were indeed minors between nine and twelve years old. During these dozen conversations, which occurred between March 2005 and January 2006, Fugit “always represented himself to be a child and often asked inappropriate questions,” including

the child's breast size, whether or not the child had pubic hair, whether or not the child slept in the nude, whether or not the child engaged in masturbation, what type of underwear the child wore, and whether or not the child had been naked in front of a member of the opposite sex.

As with Jane Does # 1 and # 2, Fugit often proceeded to engage these children in telephone conversations involving “inappropriate sexual comments.”

Finally, the PSR disclosed that 289 still images and twenty-four videos of child pornography—at least some of which were extremely graphic—were found on Fugit's computers. In addition to the single occasion described in the Statement of Facts, the PSR revealed that law enforcement identified forty-three instances of child pornography distribution between September 2004 and January 2006, some involving multiple images.

Following a hearing on December 19, 2007, the district court sentenced Fugit to 240 months of imprisonment on Count One (the statutory maximum) and seventy months of imprisonment on Count Two, to be served consecutively, yielding a sentence of 310 months from a guideline range of 292 to 365 months. Represented by the same counsel as during the initial plea proceedings, Fugit appealed only his sentence, and this court affirmed the judgment of the district court. United States v. Fugit, 296 Fed.Appx. 311 (4th Cir.2008) (per curiam).

On October 1, 2009, Fugit filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255. He contested his convictions on ten grounds. The district court denied the motion in its entirety, rejecting each of Fugit's claims on the merits and also seeming to find that several were procedurally defaulted. This court granted a certificate of appealability on the following issues, which relate to Count Two only: (1) “whether Fugit's stipulated conduct constituted attempted inducement of ‘sexual activity’ of a minor within the meaning of 18 U.S.C. § 2422(b)” and (2) “whether Fugit's counsel rendered ineffective assistance by advising him to stipulate to the inducement of ‘sexual activity’ and guilt under 18 U.S.C. § 2422(b).”

II.

We underscore at the outset of our review the interest of the criminal justice system in the finality of convictions, an interest repeatedly confirmed the Supreme Court. See, e.g., McCleskey v. Zant, 499 U.S. 467, 492–93, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Henderson v. Kibbe, 431 U.S. 145, 154 n. 13, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). “The historical evidence demonstrates that the purposes of the writ [of habeas corpus], at the time of the adoption of the Constitution, were tempered by a due regard for the finality of the judgment of the committing court.” Schneckloth v. Bustamonte, 412 U.S. 218, 256, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). Relitigation of a conviction is a rear-view mirror, while a respect for finality encourages those in custody to contemplate the future prospect of “becoming a constructive citizen.” Id. at 262, 93 S.Ct. 2041.

The Supreme Court has declared, moreover, that “the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). In explaining this corollary to the finality principle, the Court remarked:

Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas.

Id. (quoting United States v. Smith, 440 F.2d 521, 528–29 (7th Cir.1971) (Stevens, J., dissenting)). In addition to emphasizing the sheer volume of guilty pleas, the Supreme Court has located independent value in the fact that such a plea “usually rest[s] ... on a defendant's profession of guilt in open court,” United States v. Dominguez Benitez, 542 U.S. 74,...