United States v. McHenry

• Decision Date: 24 February 2017
• Docket Number: No. 16-1266,16-1266
• Citation: 849 F.3d 699
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Dontre D'Sean MCHENRY, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

849 F.3d 699

UNITED STATES of America, Plaintiff–Appellee

v.Dontre D'Sean MCHENRY, Defendant–Appellant

No. 16-1266

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2016

Filed: February 24, 2017

Counsel who presented argument on behalf of the appellant was Caroline Durham, of Saint Paul, MN.

Counsel who presented argument on behalf of the appellee was Michael L. Cheever, AUSA, of Minneapolis, MN.

Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

LOKEN, Circuit Judge.

Dontre D'Sean McHenry pleaded guilty to one count of sex trafficking a minor in violation of 18 U.S.C. § 1591. The district court¹ varied downwards from his advisory guidelines range, life in prison, and sentenced McHenry to 293 months. McHenry appeals his conviction and sentence, arguing the district court erred in denying his timely motion to withdraw his guilty plea without an evidentiary hearing; committed procedural sentencing error by imposing an obstruction-of-justice enhancement and denying an acceptance-of-responsibility reduction, see U.S.S.G. §§ 3C1.1 and 3E1.1 ; and improperly weighed the 18 U.S.C. § 3553(a) sentencing factors in imposing a substantively unreasonable sentence. We affirm.

I. Background.

A. McHenry's Arrest. On March 12, 2014, Minneapolis Police Sergeant Sherral Schmidt, investigating sex trafficking, discovered an "escort" advertisement on backpage.com featuring photographs of a girl listed as "Available Now" who resembled a juvenile previously rescued from sex traffickers and recently reported missing from her home. Sergeant Grant Snyder reviewed the ad, agreed the girl looked like a known sex trafficking victim, and called the phone number listed in the ad to set up a "date." A female answered, identified herself as "Honey," and told Sergeant Snyder to get a hotel room and call her back. Believing the ad depicted a known juvenile being exploited by sex traffickers, Snyder submitted an Exigent Circumstance Request Form ("E911 Form") to T–Mobile, the service provider for the cell phone number listed in the advertisement. Snyder certified that an emergency existed because a "Juvenile sex trafficking victim [was being] held against her will and trafficked by organized conspiracy." T–Mobile advised that it listed Tony Brown as the subscriber for the phone. T–Mobile also provided real-time location data for the phone number, which soon informed officers that the victim's likely location was a Motel 6 in Roseville, Minnesota.²

When the officers arrived at the Motel 6, staff provided information indicating the juvenile was in room 114, recently rented to Jennifer VonHagen. Observing VonHagen leaving room 114, Sergeant Snyder showed her the advertisement pictures. VonHagen said the juvenile in the ad was in room 114 with an adult male and consented to officers entering the room. Inside, the officers found McHenry with J.E., a 17–year–old juvenile female. J.E. was not the known juvenile they were expecting to find, but J.E. confirmed that the ad depicted photographs of her for the purpose of soliciting sex for money. The officers arrested McHenry, finding a small amount of methamphetamine and a Visa card used to pay for the ad. They secured the room and applied for a search warrant. Minneapolis Police executed the warrant the next day, finding seven cell phones, including the black T–Mobile phone referenced in the advertisement. A subsequent warrant search of the phone revealed that the settings listed J.E.'s email account, and that J.E. used the phone's Instagram application. According to VonHagen, McHenry used a different phone.

McHenry was charged with sex trafficking of minors in violation of 18 U.S.C. §§ 1591 and 1594(c). The district court appointed attorney Paul Edlund to represent McHenry at his June 2014 detention hearing. Edlund had successfully defended McHenry in a state court prosecution charging him with third degree sexual conduct against a 17–year–old victim, a case dismissed in 2013. The district court detained McHenry pending trial and ordered him to refrain from contacting any victim because he had repeatedly called J.E. and had directed his father to visit J.E. A July superseding indictment charged McHenry with three counts of sex trafficking of a minor and one count of sex trafficking by force, fraud, or coercion in violation of 18 U.S.C. §§ 1591 and 1594(a).

B. The Suppression Motion. Attorney Edlund filed a motion to suppress all physical evidence obtained as a result of the "warrantless entry and search of The Motel 6, Room 114, Roseville, Minnesota on March 12, 2014." At the August 13 evidentiary hearing, the government introduced the search warrant into evidence without objection and presented testimony by Officer John Jorgensen Jr. of the Roseville Police Department. Edlund cross-examined Officer Jorgensen at length about his contact with VonHagen, and whether he had consent to enter the motel room and probable cause to arrest McHenry. The defense called no witnesses. The government argued that the warrant contained evidence of probable cause because "Sgt. Snyder had been tracking the phone number listed on that Backpage ad, had made calls, had communication with who he believed to be a minor, identified herself as honey and they were arranging to set up a date." Edlund's post-hearing brief argued the probable cause and consent issues. On August 26, Magistrate Judge Franklin Noel issued a Report and Recommendation recommending the motion to suppress be denied because "GPS data obtained pursuant to a tracking order" supported a finding that the officers had probable cause to arrest McHenry for promotion of prostitution. McHenry did not file objections to the Report and Recommendation, and the district court adopted it. See United States v. McHenry , 2014 WL 4626491 (D. Minn. Sept. 15, 2014).

C. McHenry Pleads Guilty. On October 8, with trial scheduled to begin October 21, the government sent Edlund a letter setting a deadline of October 10 for McHenry to accept a plea agreement the government offered on August 13. McHenry accepted the agreement, pleading guilty to one count of sex trafficking of a minor in violation of 18 U.S.C. § 1591. At the October 17 change-of-plea hearing, the parties revised the plea agreement to allow McHenry to challenge a sentencing enhancement, and the hearing was delayed thirty minutes to allow McHenry to discuss the plea agreement with attorney Edlund. After the prosecutor and Edlund thoroughly explained to McHenry the terms of the plea agreement and the rights he was waiving by pleading guilty, McHenry and attorney Edlund signed the agreement.

Before accepting the guilty plea, the district court asked McHenry several questions to ensure he understood the consequences of pleading guilty:

THE COURT: ... First, I want to ask you whether you're here voluntarily to plead guilty today. Are you?

THE DEFENDANT: Yes.

THE COURT: And in that sense, has anybody forced you to come here, threatened you, coerced you, or done anything to get you to come here this morning to plead guilty?

THE DEFENDANT: No.

* * * * *

THE COURT: Now, once you plead guilty, it's very difficult to unplead; do you understand that?

THE DEFENDANT: Yes.

* * * * *

THE COURT: And that's why I want to go over some of the very same things that you've already been asked about. For example, you have a right to have counsel here ... I know Mr. Edlund has been here before me a number of times. He's a very good lawyer. The question for you is has he been a good lawyer for you?

THE DEFENDANT: Yes.

THE COURT: Has he answered all of your questions?

THE DEFENDANT: Yes.

THE COURT: Has he told you what he thinks would happen if you went to trial in this case?

THE DEFENDANT: Yes.

THE COURT: Has he told you what he thinks will happen—he can't know for sure—but what he thinks will happen under this plea agreement?

THE DEFENDANT: Yes.

THE COURT: And you're willing to accept his advice today?

THE DEFENDANT: Yes.

THE COURT: Have you had enough time to talk with him to discuss all of your concerns?

THE DEFENDANT: Yes.

The court then accepted McHenry's plea as knowing and voluntary.

D. McHenry Moves To Withdraw the Plea. On November 13, 2014, McHenry sent a pro se letter requesting to withdraw his plea, alleging that Edlund rarely visited or spoke with McHenry, never explained McHenry's rights, and pressured McHenry into pleading guilty. McHenry claimed he had difficulty understanding the rights he was waiving at the change-of-plea hearing due to his poor hearing and fetal alcohol syndrome, and he complained that the prosecution was attempting to add new charges and that the guidelines were not being properly applied. McHenry followed with another letter dated November 28. On December 5, attorney Edlund moved to withdraw, and the district court appointed new counsel.

Following appointment of new counsel, the government produced the E911 Form Sergeant Snyder submitted to T–Mobile to obtain GPS tracking of the cell phone number listed in the backpage.com advertisement. In a memorandum supporting McHenry's pro se motion to withdraw the plea, new counsel argued that the E911 Form "confirmed that the Minneapolis Police Department did not obtain a search warrant prior to having T–Mobile place an ‘Emergency 911’ GPS trace on the cell phone that ultimately led law enforcement to ... Mr. McHenry." Therefore, counsel argued, McHenry had a "fair and just reason" to withdraw his guilty plea, see Fed. R. Crim. P. 11(d)(2)(B), either because the E911 Form was new evidence supporting his motion to suppress,³ or because Edlund provided ineffective assistance in failing to challenge the warrantless search of the cell phone's location data. In addition, counsel argued, the combination of McHenry's hearing impairment, fetal alcohol syndrome, the short time he was given to consider the plea agreement, his flawed relationship with Edlund, and confusion during the plea colloquy provided a fair and just reason to withdraw the plea.

The district court denied McHenry's ...