Stewart v. USA

Filing 2

ORDER: (1) Denying Motion to Vacate, Set Aside, or Correct the Sentence; and (2) Denying Certificate of Appealability as to Michael Eugene Stewart (1). Signed by Judge Marilyn L. Huff on 7/26/2017.(All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL EUGENE STEWART,
Petitioner,

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Case No.: 12-cr-00461-H-1
12-cr-01688-H-1
17-cv-00822-H

v.
ORDER:

UNITED STATES OF AMERICA,
Respondent.

(1) DENYING MOTION TO
VACATE, SET ASIDE, OR
CORRECT THE SENTENCE; AND

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[Doc. No. 34 in 12-cr-461.]

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(2) DENYING CERTIFICATE OF
APPEALABILITY

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On April 24, 2017, Petitioner/Defendant Michael Eugene Stewart, proceeding pro

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se, filed in the United States District Court for the Southern District of California a motion

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pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence by a person in

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federal custody. (12-cr-461-Doc. No. 34.) On May 17, 2017, the Government filed a

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response in opposition to Defendant’s motion. (12-cr-461-Doc. No. 36.) On July 10, 2017,

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Defendant filed a reply. (12-cr-461-Doc. No. 37.) For the reasons discussed below, the

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Court denies Defendant’s § 2255 motion.
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Background

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On May 1, 2012, a grand jury returned an indictment charging Defendant with: (1)

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distribution of images of minors engaged in sexually explicit conduct in violation of 18

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U.S.C. § 2252(a)(2); and (2) possession of matters containing images of sexually explicit

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conduct in violation of 18 U.S.C. § 2252(a)(4)(B).

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November 27, 2012, Defendant pled guilty pursuant to a written plea agreement to count

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one of the indictment, distribution of child pornography in violation of § 2252(a)(2). (12-

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cr-1688-Doc. Nos. 37, 39, 43.)

(12-cr-1688-Doc. No. 1.)

On

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In the plea agreement, the parties agreed that Defendant would be subject to a 2-

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level enhancement to his guideline calculations pursuant to U.S.S.G. § 2G2.2(b)(3). (12-

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cr-1688-Doc. No. 39 at 7.) In addition, in the plea agreement, Defendant waived “any right

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to appeal or to collaterally attack his sentence, except a post-conviction collateral attack

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based on a claim of ineffective assistance of counsel, unless the Court impose[d] a custodial

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sentence above the high end of the guideline range . . . recommended by the Government

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pursuant to this agreement at the time of sentencing.” (Id. at 10.)

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On June 10, 2013, Defendant filed a sentencing summary chart calculating his total

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offense level as 32 and his criminal history category as II and requesting an 8-level

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departure, resulting in an advisory guideline range of 57 to 71 months, and recommending

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a custodial sentence of 60 months. (12-cr-1688-Doc. No. 62.) In calculating Defendant’s

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total offense level, Defendant applied a 2-level enhancement for distribution under

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U.S.S.G. § 2G2.2(b)(3). (Id.; see also 12-cr-1688-Doc. No. 61 at 2.) On June 12, 2013,

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the Government filed a sentencing summary chart calculating Defendant’s total offense

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level as 34 and his criminal history category as III, resulting in an advisory guideline range

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of 188 to 235 months, and recommending a custodial sentence of 188 months. (12-cr-

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1688-Doc. No. 66.) In calculating Defendant’s total offense level, the Government applied

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a 2-level enhancement for distribution under U.S.S.G. § 2G2.2(b)(3)(F). (Id.; see also 12-

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cr-1688-Doc. No. 67 at 10.)

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On August 12, 2013, the Court held a sentencing hearing. At the hearing, the Court
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calculated Defendant’s total offense level as 34 and his criminal history category as III,

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resulting in an advisory guideline range of 188 to 235 months. In calculating Defendant’s

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offense level, the Court applied a 2-level enhancement for distribution under U.S.S.G. §

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2G2.2(b)(3)(F). The Court then considered the § 3553(a) factors and ultimately sentenced

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Defendant to 108 months in custody for count one of the indictment, distribution of child

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pornography in violation of 18 U.S.C. § 2252(a)(2). (12-cr-1688-Doc. Nos. 71-72.) The

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Court granted the Government’s oral motion to dismiss count two of the indictment. (Id.)

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The Court subsequently entered judgment on August 14, 2013. (12-cr-1688-Doc. No. 72.)

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On April 24, 2017, Defendant filed the present motion pursuant to 28 U.S.C. § 2255

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to vacate and correct his federal prison sentence. 1 (12-cr-00461-Doc. No. 34.) In the

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motion, Defendant argues that his sentence is unlawful in light of Amendment 801, which

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clarified the distribution enhancement set forth in U.S.S.G. § 2G2.2(b)(3). (Id. at 1-2.)

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Discussion
I.

Legal Standards

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A sentencing court may “vacate, set aside or correct the sentence” of a federal

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prisoner if it concludes that “the sentence was imposed in violation of the Constitution or

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laws of the United States.” 28 U.S.C. § 2255(a). Claims for relief under § 2255 must be

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based on a constitutional or jurisdictional error, “‘a fundamental defect which inherently

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results in a complete miscarriage of justice,’” or a proceeding “‘inconsistent with the

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rudimentary demands of fair procedure.’” United States v. Timmreck, 441 U.S. 780, 783-

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84 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). A district court may

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deny a § 2255 motion without holding an evidentiary hearing if “the petitioner fails to

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allege facts which, if true, would entitle him to relief, or the petition, files and record of the

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case conclusively show that he is entitled to no relief.” United States v. Rodriguez-Vega,

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797 F.3d 781, 792 (9th Cir. 2015); see 28 U.S.C. § 2255(b); United States v. Quan, 789

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The Court notes that Defendant filed the present § 2255 motion in Case No. 12-cr-461 even
though his conviction and sentence was entered in Case No. 12-cr-1688.
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F.2d 711, 715 (9th Cir. 1986) (“Where a prisoner’s [§ 2255] motion presents no more than

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conclusory allegations, unsupported by facts and refuted by the record, an evidentiary

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hearing is not required.”).

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II.

Analysis

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In the present §2255 motion, Defendant states that the United States Sentencing

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Commission recently issued and enacted a clarifying amendment, Amendment 801, which

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clarifies the scope of the 5-level enhancement provision set forth in U.S.S.G. § 2G2.2(b)(3).

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(12-cr-461-Doc. No. 34 at 1.) Defendant argues that following that amendment, a 5-level

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enhancement under U.S.S.G. § 2G2.2(b)(3) should only be applied if the defendant

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knowingly distributed unlawful images for the specific purpose of obtaining something of

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valuable consideration from the other person. (Id. at 1-2, 5.) Petitioner argues that in light

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of Amendment 801, he should not have received an enhancement under U.S.S.G. §

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2G2.2(b)(3), and, therefore, his sentence should be corrected. (Id. at 5-7.)

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Here, Defendant has failed to state a cognizable claim for relief under § 2255.

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“Although collateral review under section 2255 is . . . quite broad, ‘it does not encompass

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all claimed errors in . . . sentencing.’ If a petitioner does not allege lack of jurisdiction or

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constitutional error, an error of law will not provide a basis for habeas relief unless that

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error ‘resulted in a complete miscarriage of justice or in a proceeding inconsistent with the

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rudimentary demands of fair procedure.’” Hamilton v. United States, 67 F.3d 761, 763–

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64 (9th Cir. 1995) (citations omitted).

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resentenced in light of Amendment 801 raises neither a claim of constitutional nor

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jurisdictional error. Further, a “‘district court’s failure to apply a guideline that was not

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effective at the time of sentencing does not give rise to a complete miscarriage of justice.’”

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Id. at 764. Accordingly, Defendant’s claim is not cognizable under § 2255, and the Court

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lacks authority to resentence Defendant under § 2255 on this basis. See id. at 764 (holding

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that the district court lacked authority to resentence the defendant under §2255 where “[the

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defendant]’s contention below—that he be resentenced in light of Amendment 433—raised

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neither a claim of constitutional nor jurisdictional error”).

Defendant’s contention that he should be

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Although the Court could construe Defendant’s pro se motion and a request for

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resentencing under 18 U.S.C. § 3582, see id., the Court declines to do so because Defendant

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would also not be entitled to relief under that provision. The changes to the sentencing

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guidelines set forth in Amendment 801 had no effect on Defendant’s guideline calculations.

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Amendment 801 amended U.S.S.G. Ҥ 2G2.2(b)(3)(F) to provide that the 2-level

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distribution enhancement applie[s] if ‘the defendant knowingly engaged in distribution.’”

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United States Sentencing Guidelines, Supplement to Appx. C, Am. 801 at 145 (Nov. 1,

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2016) (“[T]he Commission determined that the 2-level distribution enhancement is

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appropriate only in cases in which the defendant knowingly engaged in distribution.”). 2

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Here, Defendant admitted that he knowingly distributed child pornography. In his written

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plea agreement, Defendant admitted: “That on or about August 2, 2010, [he] knowingly

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distributed at least 254 images and 5 videos of visual depictions of minors engaged in

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sexually explicit conduct via a commercially available file-sharing program.” (12-cr-1688-

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Doc. No. 39 at 3; see also Doc. No. 37.) Thus, the 2-level distribution enhancement under

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§ 2G2.2(b)(3)(F) remains applicable to Defendant following Amendment 801.

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In his motion, Defendant notes that Amendment 801 also clarified the scope of the

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5-level distribution enhancement set forth in U.S.S.G. § 2G2.2(b)(3)(B). (12-cr-461-Doc.

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No. 34 at 4-5.) But this fact is of no consequence because the Court did not apply a 5-level

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enhancement under U.S.S.G. § 2G2.2(b)(3)(B) at Defendant’s sentencing. At sentencing,

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the Court applied a 2-level enhancement for distribution under § 2G2.2(b)(3)(F), not

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subsection (B). Accordingly, Defendant is not entitled to relief under §2255 in light of

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Amendment 801.

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Available at https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/
APPENDIX_C_Supplement.pdf (last visited July 25, 2017).
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III.

Waiver

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In addition, as part of his written plea agreement, Petitioner waived his right to

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challenge his sentence under § 2255. (12-cr-1688-Doc. No. 39 at 9-10.) The Ninth Circuit

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has upheld the enforceability of waivers in plea agreements like Defendant’s, explaining

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that the right to appeal or collaterally attack one’s sentence is derived by statute, and “[a]

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knowing and voluntary waiver of a statutory right is enforceable.” United States v. Abarca,

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985 F.2d 1012, 1014 (9th Cir. 1993). The Ninth Circuit has further explained that “public

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policy strongly supports” plea agreements containing such waivers, reasoning that finality

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is “perhaps the most important benefit of plea bargaining.” United States v. Navarro–

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Botello, 912 F.2d 318, 322 (9th Cir. 1990).

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A waiver of the right to appeal or collaterally attack a sentence or conviction is “is

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enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds

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raised, and (2) the waiver is knowingly and voluntarily made.” United States v. Lo, 839

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F.3d 777, 783 (9th Cir. 2016) (internal citations omitted) (citing United States v. Medina–

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Carrasco, 815 F.3d 457, 461 (9th Cir. 2016)); see, e.g., United States v. McTiernan, 552 F.

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App’x 749, 750 (9th Cir. 2014). Further, an otherwise valid waiver is not rendered

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unenforceable by a subsequent change in the applicable sentencing law. See United States

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v. Johnson, 67 F.3d 200, 202 (9th Cir. 1995) (“The fact that [a defendant] did not foresee

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the specific issue that he now seeks to appeal does not place the issue outside the scope of

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the waiver.”); see also United States v. Bownes, 405 F.3d 634, 636 (7th Cir. 2005)

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(collecting case and stating “there is abundant case law that appeal waivers worded as

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broadly as this one are effective even if the law changes in favor of the defendant after

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sentencing”).

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Defendant’s plea agreement states in relevant part:

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In exchange for the Government’s concessions in this plea agreement, . . .
defendant also waives, to the full extent of the law, any right to appeal or to
collaterally attack his sentence, except a post-conviction collateral attack
based on a claim of ineffective assistance of counsel, unless the Court imposes
a custodial sentence above the high end of the guideline range . . .

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recommended by the Government pursuant to this agreement at the time of
sentencing.

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(12-cr-1688-Doc. No. 39 at 9-10.) Here, Defendant does not allege a claim of ineffective

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assistance of counsel in the present § 2255 motion. (See 12-cr-461-Doc. No. 34.) In

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addition, the Court did not impose a sentence above the high end of the guideline range

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recommended by the Government. Pursuant to the plea agreement, the Government

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recommended that the Court sentence Petitioner to 188 months in custody based on an

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advisory guideline range of 188 to 235 months. (12-cr-1688-Doc. No. 66.) The Court

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sentenced Petitioner to 108 months in custody after considering the advisory sentencing

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guidelines and the 18 U.S.C. § 3553(a) factors. (12-cr-1688-Doc. Nos. 71-72.) Because

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the present § 2255 motion is not based on a claim of ineffective assistance of counsel, and

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the Court imposed a sentence well below the high end of the guideline range recommended

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by the Government, Defendant’s waiver encompasses the present § 2255 motion. See Lo,

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839 F.3d at 783.

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Further, in his plea agreement, Defendant represented that his waiver of his right to

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appeal or collaterally attack his conviction and sentence was knowing and voluntary, and

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Defendant does not argue otherwise. (12-cr-1688-Doc. No. 39 at 6, 12; see also Doc. No.

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37.) Accordingly, Defendant waived his right to appeal or collaterally attack his sentence.

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See Abarca, 985 F.2d at 1014. Thus, even if Defendant’s § 2255 claim had merit, it would

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be barred by the waiver in his plea agreement. Accordingly, the Court also denies

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Defendant’s §2255 motion on the grounds that it is barred by the waiver in his written plea

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agreement.

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IV.

Certificate of Appealability

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An appeal cannot be taken from the district court’s denial of a § 2255 motion unless

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a certificate of appealability is issued. See 28 U.S.C. § 2253(c)(1); Muth v. Fondren, 676

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F.3d 815, 818 (9th Cir. 2012). A certificate of appealability may issue only if the defendant

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“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

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2253(c)(2). When a district court has denied the claims in a § 2255 motion on the merits,
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a defendant satisfies the above requirement by demonstrating “that reasonable jurists would

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find the district court’s assessment of the constitutional claims debatable or wrong.” Slack

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v. McDaniel, 529 U.S. 473, 484 (2000).

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The Court concludes that reasonable jurists would not find the Court’s assessment

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of Defendant’s claims debatable or wrong. Accordingly, the Court declines to issue a

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certificate of appealability.

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Conclusion

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For the reasons above, the Court denies Defendant’s motion under 28 U.S.C. § 2255

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to vacate, set aside, or correct his sentence. In addition, the Court denies Defendant a

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certificate of appealability.
IT IS SO ORDERED.
DATED: July 26, 2017
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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