United States v. Osborne
| Docket Number | 22 C 4484 |
| Decision Date | 18 September 2023 |
| Parties | UNITED STATES OF AMERICA, v. BRYAN OSBORNE, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
After Bryan Osborne pleaded guilty to one count of sex trafficking of a minor in violation of 18 U.S.C. § 1591(a), the Court sentenced him to 264 months in prison. Proceeding pro se, Osborne now moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, asserting that he received ineffective assistance of counsel. Because none of Osborne's contentions have merit, the Court denies Osborne's § 2255 petition and declines to certify any issue for appeal pursuant to 28 U.S.C. § 2253(c)(2).
On June 22, 2017, a federal grand jury returned a twenty-five count superseding indictment against Osborne, charging him with six counts of coercion or enticement of a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Counts 1, 6, 10, 13, 15, and 18); twelve counts of sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a) (Counts 2, 4, 5, 7, 11, 12, 14, 16, 17, 19, 22, and 25); three counts of attempted sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a) and 1594(a) (Counts 3 8, and 21); two counts of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (Counts 9 and 20); and two counts of sexual exploitation of children, in violation of 18 U.S.C. § 2251(a) (Counts 23 and 24).
The charges arose from Osborne's use of false identities on Facebook between May 2014 and January 2017 to recruit at least twelve minor girls and one woman to have sex with him by falsely promising that they were auditioning for pornographic videos. Osborne often posed as a female stripper, offering the victims money filming pornographic videos but telling them that they first had to have sex with the “manager” to prove they could handle the scene. He also promised extra money to the minor victims if they recruited even younger girls, between the ages of seven and eleven, to participate in the videos. Osborne would then meet the minor victims at prearranged locations and have oral, anal, and/or vaginal sex with them. On some occasions Osborne filmed himself having sex with the minor victims. Osborne did not pay the victims as promised, and his female identities on Facebook would provide excuses as to why the victims could not film the scene and would not get paid. Osborne also used his Facebook identities to send victims pornographic images and solicit explicit images from them. He also had images of child pornography on his electronic devices.
On November 19, 2017, Osborne entered a guilty plea to the violation of 18 U.S.C. § 1591(a) charged in Count 22 of the superseding indictment. He also stipulated to multiple other offenses in the written plea agreement, admitting to trafficking eleven minor victims, Minors A, B, C, D, F, G, H I, J, M, and N, and to attempted trafficking of three minor victims, Minors B, E, and K. The plea agreement contained a typographical error, referring in multiple instances to 18 U.S.C. § 1951(a) instead of 18 U.S.C. § 1591(a). The parties corrected this error at the change of plea hearing, crossing out the incorrect section, writing in the correct section, and having Osborne and his counsel initial each correction. The Court also conducted a plea colloquy. Osborne admitted under oath that he understood the charge to which he was pleading guilty, as well as the facts in support of that charge and the factual basis set out in the plea agreement. He acknowledged entering his plea voluntarily and that he had not been threatened or promised anything as an inducement to plead guilty. He admitted that he understood the possible penalties and the Court's discretion at sentencing. He also acknowledged the consequences of his guilty plea. The Court confirmed Osborne's understanding that he was pleading guilty to Count 22 of the superseding indictment, and Osborne corrected the Court when it mistakenly referred to § 1951(a) instead of § 1591(a).
Prior to sentencing, a probation officer prepared a presentence investigation report (“PSR”), calculating Osborne's total offense level as 43, his criminal history as I, and his guideline imprisonment range as life. Osborne's counsel objected to the guidelines calculation and argued for a below-guidelines sentence of fifteen years in prison, the mandatory minimum.
The Court held Osborne's sentencing hearing on September 30, 2019. The Court agreed with Osborne's counsel that U.S.S.G. § 2G2.1 provided the appropriate base offense level and that enhancements pursuant to § 3A1.1(b)(1) for targeting vulnerable victims and § 4B1.5(b) for engaging in a pattern of activity involving prohibited conduct were not appropriate. The Court did increase the offense level for each victim over twelve but under sixteen years old pursuant to § 2G2.1(b)(1)(B) and for each encounter that entailed the commission of a sexual act or sexual contact pursuant to § 2G2.1(b)(2)(A). Osborne did not object to these enhancements. With the highest offense level before any reductions for acceptance of responsibility being 38, the Court then applied a five-level enhancement for grouping pursuant to § 3D1.4 and a three-level reduction for acceptance of responsibility pursuant to § 3E1.1. This resulted in a total offense level of 40, which, for Osborne as a Category I offender, translated into an advisory guidelines range of 292 to 365 months' imprisonment. The Court then heard from counsel for the government and Osborne, as well as three victims and Osborne himself. The government requested the imposition of a life sentence to reflect the seriousness of the damage Osborne inflicted and to protect the public from Osborne's habitual abuse of children. Osborne's counsel argued for imposition of the mandatory minimum sentence of fifteen years. Osborne took responsibility for his actions and apologized for his actions. After considering the sentencing guidelines, the § 3553(a) factors, all the arguments made by the parties, the victim statements, Osborne's allocution, and the documents submitted to the Court, the Court sentenced Osborne to 264 months' imprisonment, a below-guidelines sentence. The Court also imposed $142,481 in restitution, a $100 special assessment, and a twelve-year term of supervised release.
Osborne filed a notice of appeal, but his appellate attorney sought to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). The Seventh Circuit agreed with counsel that Osborne's appeal was frivolous and granted the motion to withdraw. United States v. Osborne, 828 Fed.Appx. 326 (7th Cir. 2020). The Seventh Circuit found that any argument that Osborne did not plead guilty knowingly and voluntarily would be frivolous, as would any challenges to his below-guidelines sentence. Osborne, pro se, argued that he received ineffective assistance of counsel and that the Court lacked subject matter jurisdiction because he is a Moorish citizen. The Seventh Circuit noted that he should raise his ineffective assistance claim in a § 2255 motion but found his jurisdictional argument frivolous.
“A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Where the movant “alleges facts that, if true, would entitle him to relief,” the Court should hold an evidentiary hearing to “determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b); Lafuente v. United States, 617 F.3d 944, 946 (7th Cir. 2010). However, the Court does not need to hold an evidentiary hearing where the movant “makes allegations that are vague, conclusory, or palpably incredible, rather than detailed and specific.” Boulb v. United States, 818 F.3d 334, 339 (7th Cir. 2016) (citation omitted); see also Lafuente, 617 F.3d at 946 (“To warrant further investigation, a petitioner must support a request with more than ‘mere unsupported assertions[.]'”). Ultimately, the Court may deny a § 2255 motion without a hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b); McCleese v. United States, 75 F.3d 1174, 1182 (7th Cir. 1996).
In Osborne's wide-ranging petition, he asserts twenty-two grounds for relief, which the government in responding and the Court in ruling interpret as bases for finding that his counsel provided him with ineffective assistance. See Massaro v. United States, 538 U.S. 500, 504 (2003) (although claims generally not raised on direct appeal may not be raised in a § 2255 petition absent a showing of cause and prejudice, ineffective assistance of counsel claims need not be raised first on direct appeal). Specifically Osborne claims: (1) his attorneys failed to move to quash his arrest and to suppress searches (Counts 1-4); (2) his plea agreement was breached (Count 5); (3) he improperly pleaded to a violation of 18 U.S.C. § 1951 instead of 18 U.S.C § 1591 (Count 6); (4) witness tampering occurred (Count 7); (5) the Court lacked jurisdiction over his case (Count 8); (6) the Adam Walsh Child Protection and Safety Act (the “Walsh Act”) is unconstitutional (Count 9); (7) the government improperly used patient records to prosecute him (Count 10);...
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