Saltzer v. USA

Filing 14

MEMORANDUM DECISION AND ORDER Defendant Saltzer's Motion to Vacate/Set Aside/Correct Sentence Pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1 ) is DENIED. Saltzer's Motion to Seal (Civ. Dkt. 2 ) is DISMISSED as MOOT. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.

Case No. 1:14-cv-00451-BLW
1:13-cr-0172-BLW

MEMORANDUM DECISION AND
ORDER

MARK ALAN SALTZER,
Defendant-Petitioner.

Pending before the Court is Mark Alan Saltzer’s Motion to Vacate Sentence
Pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1) and (Crim. Dkt. 49), as well as a Motion to
File Certain Documents Under Seal (Civ. Dkt. 2). Having reviewed the Motion, the
Government’s Response (Civ. Dkt. 9), and Saltzer’s Reply (Civ. Dkt. 12), as well as the
underlying criminal record, the Court enters the following order dismissing the § 2255
Motion. In light of this conclusion, the Motion to File Certain Documents Under Seal
(Civ. Dkt. 2) shall be denied as moot.
BACKGROUND
In August of 2012, Saltzer was arrested and charged in state court with ten counts
of Sexual Exploitation of Children—each of which carried a maximum punishment of
thirty years in prison. Gov.’s Resp., p. 2, Civ. Dkt. 9; Peterson Aff. ¶ 11, Civ. Dkt. 9-1.
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Soon thereafter, Saltzer retained Charles Peterson to represent him. Peterson Aff., ¶ 6,
Civ. Dkt. 9-1. During their first meeting, Saltzer informed Mr. Peterson that he had
confessed to the investigators who interviewed him, that he had been active in a child
pornography-trading group on the Internet, and that the police had seized his computers
and would soon discover the scope of his involvement. Id. at ¶ 7. Saltzer also indicated
that he was a school counselor at Meridian Middle School, and that he had been having
sex with a former student—a seventeen-year-old male who had been at Saltzer’s home
when police served the warrant. Id. at ¶ 8. Mr. Peterson reports that Saltzer’s primary
objectives at that point were to minimize prison time and to avoid time in the Idaho state
prison system. Id. at ¶ 10. In light of the vast amount of electronic evidence and Saltzer’s
admissions to investigators, Mr. Peterson concluded that Saltzer’s best chance to achieve
those objectives would be to cooperate. Id. Mr. Peterson negotiated a deal on Saltzer’s
behalf whereby Saltzer would cooperate fully with federal investigators, and plead guilty
to the federal charges. In exchange, the state charges were dismissed.
On July 30, 2013, pursuant to a Rule 1 l(c)(l)(B) plea agreement, Saltzer pleaded
guilty to an Information that charged him with one count of Sexual Exploitation of
Children, in violation of 18 U.S.C. § 2251(a). Information, p. 10. Crim. Dkt. 9. The plea
agreement identified eleven minors, ages 10 through 17, whom Saltzer had sexually
exploited over roughly a decade. Plea Agreement, pp. 7–14, Crim. Dkt. 2. The plea
agreement also stated that investigators had located evidence on Saltzer’s media that

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showed he had recorded sexually explicit videos of approximately fifty young males. Id.
at p. 7.
On November 12, 2013, Saltzer was sentenced by the Court to 348 months’
incarceration, based on a guideline range of 324–360 months, followed by 20 years of
supervised release. Judgment, Crim. Dkt. 37; Crim. Dkt. 36. Saltzer did not file an appeal
from the sentence, but now brings a 28 U.S.C. § 2255 motion to vacate the sentence
based upon a claim of ineffective assistance of counsel.
On October 23, 2014, Saltzer timely filed his § 2255 Motion alleging eight
grounds of ineffective assistance of counsel. In particular, Saltzer alleges that counsel
provided ineffective assistance of counsel when he (1) did not object to the testimony of
Lisa Austin at sentencing hearing; (2) did not cite to a particular 9th Circuit case and did
not point out that the Court had authority to grant a larger variance than requested in the
Government’s USSG 5K1.1 motion; (3) did not object to the Government’s alleged
breach of the plea agreement at the sentencing; (4) did not call expert witness Dr. Chad
Sombke at the sentencing hearing; (5) did not argue at the sentencing that the Sentencing
Guidelines applying to possession, production, and distribution of child pornography
should be given less weight; (6) failed to argue that the Guideline sentences were longer
than necessary to achieve a just sentence; and (7) failed to argue that the nature of
Saltzer’s crime would subject him to more dangerous conditions of confinement. Finally,
Saltzer also argued that alleged errors 1–7 cumulatively constitute ineffective assistance
of counsel. § 2255 Mtn., Crim. Dkt. 1. Saltzer asks the Court to vacate his sentence and
MEMORANDUM DECISION AND ORDER - 3

set a new sentencing date.1 Generally, the Government responds that there was no
deficient performance on the part of Mr. Peterson, or any resulting prejudice in Saltzer’s
sentencing.
STANDARD OF LAW
1. 28 U.S.C. § 2255
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may
grant relief to a federal prisoner who challenges the imposition or length of his or her
incarceration: (1) “that the sentence was imposed in violation of the Constitution or laws
of the United States;” (2) “that the court was without jurisdiction to impose such
sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” and
(4) that the sentence is otherwise “subject to collateral attack.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal
district court judge must dismiss a § 2255 motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief.” “Under this standard, a district court may summarily dismiss a § 2255
motion only if the allegations in the motion, when viewed against the record, do not give

1

In the alternative, Saltzer requests an evidentiary hearing on his § 2255 motion. An evidentiary
hearing is not necessary in this case, because the issues can be conclusively decided on the basis of the
evidence in the record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).

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rise to a claim for relief or are ‘palpably incredible or patently frivolous.’” United States
v. Withers, 638 F.3d 1055, 1062–63 (9th Cir. 2011) (citation omitted).
If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the
Government “to file an answer, motion, or other response within a fixed time, or to take
other action the judge may order.”
The Court may dismiss a § 2255 motion at other stages of the proceeding such as
pursuant to a motion by respondent, after consideration of the answer and motion, or after
consideration of the pleadings and an expanded record. See Advisory Committee Notes
following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by
reference into the Advisory Committee Notes following Rule 8 of the Rules Governing
Section 2255 Proceedings.
If the Court does not dismiss the proceeding, the Court then determines under Rule
8 whether an evidentiary hearing is required. The Court need not hold an evidentiary
hearing if the issues can be conclusively decided on the basis of the evidence in the
record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).
2. Ineffective Assistance of Counsel
The well-established two-prong test for evaluating ineffective assistance of
counsel claims is deficient performance and resulting prejudice. See Strickland v.
Washington, 466 U. S. 668 (1984). Mere conclusory allegations are insufficient to state a
claim of ineffective assistance of counsel. See Shah v. United States, 878 F.2d 1156,
1161 (9th Cir. 1989).
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In order to establish deficient performance, a defendant must show that counsel’s
performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S.
at 688. Under the performance prong, there is a strong presumption that counsel’s
performance falls “within the wide range of reasonable professional assistance.” Id. at
689. This is so because for the defendant, “[i]t is all too tempting . . . to second-guess
counsel’s assistance after conviction or adverse sentence. . . .” Id. For the court, “it is all
too easy to conclude that a particular act or omission of counsel was unreasonable in the
harsh light of hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002) (discussing Strickland).
In order to establish prejudice, a defendant must affirmatively prove by a
reasonable degree of probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at 694. The Strickland
standard is “highly demanding.” Kimmelman v. Morrision, 477 U.S. 365, 381–82, 386
(1986) (noting that the court should “assess counsel’s overall performance throughout the
case” when evaluating whether his assistance was reasonable).
Both prongs of the Strickland test must be met “before it can be said that a
conviction (or sentence) ‘resulted from a breakdown in the adversary process that
render[ed] the result [of the proceeding] unreliable’ and thus in violation of the Sixth
Amendment.” United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005) (quoting
Strickland, 466 U.S. at 687).
Whether or not counsel’s performance was deficient is irrelevant if there was no
prejudice as both of Strickland’s prongs must be met to be entitled to relief. In evaluating
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an ineffective assistance of counsel claim, a court may consider the performance and
prejudice components of the Strickland test in either order. Strickland, 466 U.S. at 697.
As recently reiterated by the Supreme Court, a defendant’s right to effective
assistance of counsel has long been held to apply to the plea process. See Missouri v.
Frye, 132 S.Ct. 1399, 1408 (2012); Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012);
Padilla v. Kentucky, 559 U.S. 356, 373 (2010); Hill v. Lockhart, 474 U.S. 52, 57 (1985).
The same Strickland standard applies to claims of ineffective assistance of counsel at the
plea stage. Hill, 474 U.S. at 58.
DISCUSSION
Here, Saltzer seeks to have his sentence vacated based on eight grounds of
ineffective assistance of counsel. At the outset of its discussion, the Court notes the high
level of deference given to attorneys and their decisions during the course of
representation. Mr. Peterson is an experienced criminal defense attorney who has
practiced in Boise for 20+ years and sits on the Idaho Supreme Court criminal rules
committee. This is not to say that Mr. Peterson is infallible, but to show that he does have
significant experience in criminal law, that he is a professional, and that his strategic
decisions during the course of representation should not be disregarded frivolously. In
the “harsh light of hindsight” it is easy to guess how things could have gone “if only . . .”,
but the reality is that the strategic choices attorneys make as to how to defend a case are
“virtually unchallengeable.” See Strickland v. Washington, 466 U.S. 668, 690 (1984).
“Because advocacy is an art and not a science, and because the adversary system requires
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deference to counsel’s informed decisions, strategic choices must be respected in these
circumstances if they are based on professional judgment.” Id. at 681. With this theme in
mind, the Court will address each of the eight allegations.2
1. Testimony of Lisa Austin
At Saltzer’s sentencing, Lisa Austin was allowed to make an unsworn statement
on the record, and was not subject to cross examination. Ms. Austin was the principal at
Meridian Middle School where Saltzer was employed up until his arrest. At sentencing,
the Government explained that Ms. Austin wished to address the Court in order to
respond to the numerous character letters that were submitted in writing on Saltzer’s
behalf. Sent. Trans. Civ. Dkt. 9-2, p. 5, ll. 21–24. The Court explained that it generally
allows family members and friends to offer statements to the Court, unless there is an
objection. Id. p. 6, ll. 9–11. The Court then inquired whether the Defendant had an
objection to Ms. Austin offering an oral statement. Id. at ll. 23–24. Mr. Peterson

2

As an aside, a defendant may waive his statutory right to file a § 2255 motion challenging his
sentence. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993), cert. denied, 508 U.S. 979
(1993). In those cases, the plea agreement must expressly state that the right to bring a § 2255 motion is
waived in order for the waiver to be valid. United States v. Pruitt, 32 F.3d 431 (9th Cir. 1994) Here,
Saltzer’s signed plea agreement specifically states that his right to file a § 2255 motion is waived except
for a § 2255 motion alleging ineffective assistance of counsel based solely on information not known to
him at the time the sentence was imposed. Plea Agreement, Crim. Dkt. 2, pp. 26–27. None of the
allegations Saltzer now advances were unknown to him at the time his sentence was imposed. Thus, at
first blush, it would appear that Saltzer has waived his right to make the arguments he now makes.
However, the Government has not argued that the waiver provision in Saltzer’s plea agreement should
now preclude his claims. And, “[t]his court will not address waiver if not raised by the opposing party.”
United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1995).

MEMORANDUM DECISION AND ORDER - 8

responded that he had no objection. Id. at l. 25. It is this failure to object that Saltzer now
alleges constitutes ineffective assistance of counsel. Saltzer argues that the testimony Ms.
Austin put forth was “extremely prejudicial” and “influenced and moved the Court to
impose a harsher sentence than otherwise.” Def.’s Brief, Civ. Dkt. 1, p. 4. In the
alternative, Saltzer argues that it was ineffective for Mr. Peterson not to demand that Ms.
Austin be placed under oath and subject to cross-examination. Id.
According to Mr. Peterson, the decision to not object to Ms. Austin’s statement
was a strategic one. He states that “[a]n objection would not have changed anything for
Mr. Saltzer, and he was better off, in my view as his lawyer, to not make more of what
was axiomatic—school counselors enjoy the trust of their profession and community and
actions like Mr. Saltzer’s do real harm to those in both.” Peterson Aff., Civ. Dkt. 9-1, p. 7.
Mr. Peterson also explains that “[t]here was nothing to gain from requiring Ms. Austin to
take an oath and then be subjected to cross-examination because the documents offered in
mitigation invited a response. Ms. Saltzer’s mitigation centered on his service to
otherwise within the community, including students.” Id. In other words, “[c]ross –
examination would not have changed the very public perception that he was literally and
figuratively ‘the fox in the henhouse.’” Id.
Saltzer’s claim for ineffective assistance of counsel for this failure to object—or,
in the alternative, to place Ms. Austin under oath and subject her to cross examination—
is subject to dismissal because it fails to satisfy either Strickland prong. As the Court
indicated at the sentencing, Ms. Austin’s statement was akin to a character letter, only in
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oral form. Sent. Trans., Civ. Dkt. 9-2, p. 6, ll. 15–24. The thrust of Ms. Austin’s
statement was that Saltzer’s actions were especially reprehensible because he was in a
position of authority and trust as a school counselor, and that his actions hurt not only his
students— perhaps irreparably—but the reputation of his former employer and all who
worked with him. Not to diminish Ms. Austin’s statement, but this was information the
Court easily gleaned from the record. As the Court noted before it imposed Saltzer’s
sentence, this was one of the “most unsettling cases” that the Court has ever encountered.
Id., p. 47, l. 12.
As one example of just how unsettling this case was, Saltzer’s plea agreement
identified eleven minors, ages 10 through 17, whom Saltzer had sexually exploited over
roughly a decade. Crim. Dkt. 2, pp. 7–14. The plea agreement also stated that
investigators had located evidence on Saltzer’s media that showed he had recorded
sexually explicit videos of approximately fifty young males. Id. at 7. If Saltzer had been
fully prosecuted for all of these crimes in either state or federal court, he very likely could
have faced a life sentence. Saltzer’s crimes spoke for themselves—Ms. Austin’s
statement was self-evident and made no difference when the Court imposed the sentence.
Not only did no prejudice result from Mr. Peterson’s failure to object or subject
Ms. Austin to cross, but not doing so does not constitute deficient performance. As
explained, Ms. Austin did not provide any information that was not readily ascertainable
from the record. Accordingly, it was reasonable for Mr. Peterson to not object, since an

MEMORANDUM DECISION AND ORDER - 10

objection would have only required that Ms. Austin take the witness stand, where her
damning observations would have had the further force of sworn testimony.
Moreover, not insisting that Ms. Austin be placed under oath and subject to cross
examination is a classic example of a “virtually unchallengeable” strategic decision. See
Strickland, 466 U.S. at 690. Because Saltzer attempted to mitigate his sentence by
emphasizing his service to others, including students, a vigorous cross-examination of
Ms. Austin would almost certainly have backfired. Indeed, more testimony from Ms.
Austin would have served only to further highlight that Saltzer’s motives in “serving
others” were far from altruistic. In sum, neither Strickland prong is satisfied here and this
claim will be dismissed.3
2. Failure to Cite United States v. Udo
Next, Saltzer claims that Mr. Peterson was ineffective by failing to cite to United
States v. Udo, 963 F.2d 1318 (9th Cir. 1992), and by not urging the Court to impose a
much greater downward variance because of Saltzer’s cooperation. Udo stands for the

3

Mr. Peterson states that his decision to not object to Ms. Austin’s testimony was made “after
first consulting with Mr. Saltzer.” Peterson Aff., Civ. Dkt. 9-1, p. 7. Saltzer disputes this. He states that
Mr. Peterson “did not discuss the matter with me at all.” Saltzer Dec., Civ. Dkt. 12-1, p. 2. Saltzer has
also provided the declaration of Cheryll Salzburg, a friend of his who attended his sentencing. See
Salzburg Dec., Civ. Dkt. 12-3. Ms. Salzburg states in her declaration that she “paid close attention to the
sentencing proceeding” and “[a]t no time did [she] see Mr. Peterson consult with Mark Saltzer before Mr.
Peterson told the court that he had no objection to the prosecutor’s request to have Ms. Austin address the
court.” Id. at p. 1. Taking Saltzer’s version of events as true, the result remains the same. A failure to
consult as alleged here does not rise to the level of ineffective assistance of counsel—it was not deficient
performance to not fight the admittance of what amounted to an oral character letter; nor, again, did any
prejudice result from Mr. Peterson’s alleged failure to consult Saltzer on this matter.

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proposition that once the government files a motion for downward departure based on
defendant’s substantial assistance, the district court has the discretion to grant a
downward departure to a greater extent than is recommended by the government. Udo,
963 F.2d at 1319.
The record indicates that Mr. Peterson, while not citing to Udo specifically,
nonetheless argued for a sentence between 180 and 360 months. Such a sentence was less
than the guideline range and would have been tantamount to more than a two-point 5K1.1
reduction.
Within his sentencing memorandum, Mr. Peterson argued that in moving for only
a two-level downward departure, the Government was improperly focusing on the value
of the information provided and whether it could be used in future prosecutions, rather
than Saltzer’s cooperation as a whole. Sent. Mem. Crim. Dkt. 35, p. 16. Mr. Peterson
contended that a mere two-level departure was insufficient. He argued that Saltzer gave
all of the information he had to investigators, and offered to do anything else to assist
them. Id. Mr. Peterson noted that Saltzer also handed over passwords and usernames,
explained how the child pornography sharing group functioned, and provided the
identities of his victims. Id. at 15. In closing, Mr. Peterson stated: “A two level reduction
for substantial assistance in this case is really of little consequence in the final analysis. A
just sentence requires more.” Id. at 18.
Further, at the sentencing hearing, Mr. Peterson stated:

MEMORANDUM DECISION AND ORDER - 12

I’ve asked the court at the end of that sentencing memorandum to impose a
sentence of 180 months. But Mr. Peters is absolutely right. It’s not likely,
based on the reduction that would represent, that the court would do that,
and it certainly isn’t something that my client expects. But there is a
number that’s less than 360 that is adequate to meet all the requirements
under 3553(a), and I would suggest to the court that some number less than
360 months is sufficient in this case.
Sent. Trans. p. 36, ll. 3–12. Mr. Peters, attorney for the Government, had pointed out
earlier that:
[I]f the court were to accept the defense’s recommendation of a sentence of
180 months, that would be the equivalent of reducing the defendant’s
offense level, which the probation officer correctly calculated at 52. . . . But
it would be the equivalent of reducing the defendant’s offense level from 52
adjusted downward to 43 by rule to level 35. To accomplish that, the court
would have to exercise its discretion to effectively disregard nearly all—not
all but nearly all of the individualized aggravating factors described in the
sentencing guidelines that pushed that sentencing range so high.
Id. p. 22, ll. 9–21.
As the foregoing demonstrates, there was a discussion at the sentencing about the
Court’s ability to exercise its discretion and reduce Saltzer’s offense level more than
recommended by the Government.
In sum, Mr. Peterson was not ineffective in not citing to Udo specifically when he
argued both in his sentencing memorandum and at the hearing that a downward departure
of two levels based on substantial assistance did not adequately represent the amount of
assistance Saltzer gave. Additionally, the discussion at the hearing plainly recognizes the
Court’s discretion to reduce the defendant’s offense level. Finally, even if the attorneys
had not reminded the Court of its discretion at the hearing, no prejudice would have
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resulted because the Court needed no reminder. It is well-established—and well-known
to the Court—that once the government files a motion for downward departure based on
defendant’s substantial assistance, the district court has the discretion to grant a
downward departure to a greater extent than is recommended by the government.
Accordingly, this claim also fails.
3. Plea agreement breach
Third, Saltzer alleges that Mr. Peterson was ineffective by not objecting to the
Government’s alleged breach of the plea agreement. Saltzer alleges that the plea
agreement was breached because, while the Government moved the Court for a two-level
reduction in offense level based on Saltzer’s cooperation, “it denigrated that very
cooperation” by not asking for a larger reduction. Civ. Dkt. 1, p. 6.
A plea agreement is construed as a contract between the prosecutor and the
defendant. United States v. Gonzalez-Melchor, 648 F.3d 959, 963 (9th Cir. 2011) (citing
United States v. Streich, 560 F.3d 926, 929-30 (9th Cir. 2009)). Accordingly, it is
governed by traditional contract law standards or principles. United States v. Clark, 218
F.3d 1092, 1095 (9th Cir. 2000). Just as in contract law “[i]f ‘the terms of the plea
agreement on their face have a clear and unambiguous meaning, then this court will not
look to extrinsic evidence to determine their meaning.’” Streich, 560 F.3d at 930 (citation
omitted); see also Clark, 218 F.3d at 1095. That said, if there is an ambiguity, the court
will examine extrinsic evidence such as the facts of the case to determine what the parties
reasonably understood and resolve the ambiguity. Id. Here, there is no ambiguity.
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Tellingly, Saltzer does not point to any particular portion of the plea agreement
that was allegedly breached. The plea agreement states:
If the Government determines, in good faith, that the defendant’s
cooperation amounts to “substantial assistance” in the investigation of
others, the Government will request that the Court depart downward from
the applicable sentencing range, pursuant to USSG § 5K1.1 and/or any
mandatory minimum sentence, pursuant to 18 U.S.C. § 3553(e).
...
The Government’s final decision whether to file motions pursuant to §
5K1.1 and/or 18 U.S.C. § 3553(e) will be made after evaluating the
defendant’s cooperation with regards to: 1) the significance and usefulness
of the defendant’s cooperation, 2) the truthfulness, completeness, and
reliability of any information or testimony provided by the defendant, 3) the
nature and extent of the defendant’s assistance, 4) any injury suffered, or
any danger or risk of injury to the defendant or defendant’s family resulting
from the defendant’s cooperation, and 5) the timeliness of the defendant’s
cooperation. The Government’s specific recommendation will turn on the
facts of the case, the sentence that likely would have been imposed absent
an agreement, and the extent and value of the cooperation provided.
Plea Agreement, Crim. Dkt. 2-1, p. 27.
Here, the Government moved for a two-level downward departure based on
Saltzer’s substantial assistance, from the calculated USSG offense level of 43, to offense
level 41. Crim. Dkt. 23, p. 1. Mr. Peters’s declaration filed in support of the motion
explained that Saltzer’s identification of child victims was valuable, as was his
confession that he was the producer of a widely distributed child pornography series
known as the “ResArena” series. Id., p. 9, ¶ 9. On the other hand, Mr. Peters explained
that Saltzer did not disclose any new members of the internet chat group who were not
already known to law enforcement, and that it was not anticipated that Saltzer would be
MEMORANDUM DECISION AND ORDER - 15

asked to testify in any other proceedings related to his cooperation. Id. at pp. 9–10. The
plain language of the plea agreement did not mandate that the Government seek more
than a two-level departure; it required only that the Government make its own good faith
determination whether to file a 5K1.1 motion based on the factors enumerated above. The
Government did just this.
Because the Government did not breach the plea agreement, Mr. Peterson could
not have been ineffective by failing to object to any so-called breach. Similarly, no
prejudice could result from this alleged failure. This claim is dismissed.
4. Dr. Sombke’s testimony
Next, Saltzer claims that Mr. Peterson was ineffective because he failed to call Dr.
Chad Sombke, who performed Saltzer’s psycho-sexual evaluation, to testify at the
sentencing hearing. Saltzer takes issue with the Court’s finding that Saltzer’s risk of
recidivism was “substantial” when Dr. Sombke thought the risk was “moderate.”
Prior to the sentencing, the Court had reviewed Dr. Sombke’s evaluation of
Saltzer, as well as the Presentence Report, which included Dr. Sombke’s opinion that
Saltzer’s risk of recidivism was “moderate.” But at the sentencing hearing, the Court
noted the following:
The problem that the defendant has, the conduct in which he has
engaged has lasted, as I noted, since 1989, which means it’s deeply
embedded in the defendant’s makeup. . . . The likelihood of recidivism in
this case, I think, is substantial. I would say that in psychosexual
evaluations, a medium risk is what I think was identified here. One can
view that as a cup half empty or a cup half full. My experience has been it’s
probably much more of a kind of a negative light because so often the
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psychosexual evaluators, I think, tend to think that the chances for
successful counseling is very high in almost every case. I think it is—I
won’t say a rare case, but I think certainly it’s—that the norm is that for the
psychosexual evaluator to suggest that the defendant poses a low risk of
reoffending.
There is the hands-on abuse with the defendant’s victims, which
again is somewhat unusual. The defendant also was involved in a very
sophisticated methodical process in which he not only groomed the victims
in this case, but also used technology as a means of disguising his age and
gender to allow him to have access to victims that otherwise he would not
have had access to.
He is also the member of a clandestine group whose objective was to
not only engage in this conduct, but to come up with ways in which they
could avoid detection.
So, as I balance these factors, it’s not even a close call. This, to me,
is one of the most unsettling cases that I’ve had to deal with for all of the
aggravating reasons that I have mentioned in this case.
Sent. Trans. Civ. Dkt. 9-2, p. 46, ll. 7–26; p. 47, ll. 1–14.
Now, in conjunction with his reply brief, Saltzer filed the declaration of Dr.
Sombke. See Sombke Dec., Civ. Dkt. 12-2. There, Dr. Sombke states in part:
Had I been called as a witness at the sentencing hearing, I would have
elaborated on my reasons for reaching the conclusion I did. I would have
explained in detail why I concluded that Mr. Saltzer was a moderate risk to
recidivate, rather than a “substantial” risk to do so. I could also have
demonstrated to the Court that in appropriate cases I have not hesitated to
conclude that certain persons were indeed a “substantial” risk to recidivate.
Id. at ¶ 5.
Mr. Peterson states that his decision not to call Dr. Sombke was tactical. Peterson
Aff., Dkt. 9-1, p. 8, ¶ 30. He states that placing Dr. Sombke on the stand—and subject to
cross-examination—would have been more damaging than beneficial because “Mr.
Saltzer’s involvement with the seventeen-year-old former student during the summer
MEMORANDUM DECISION AND ORDER - 17

months leading up to his arrest would have been subject to greater scrutiny.” Id. Mr.
Peterson also states that Saltzer was involved in making the decision not to place Dr.
Sombke on the stand, and that Dr. Sombke agreed with Mr. Peterson’s assessment at the
time that if pressed on cross-examination, his answers would negatively impact Saltzer’s
likelihood of a lesser sentence. Id. Saltzer disputes this account. He states that Mr.
Peterson told him Dr. Sombke does not testify in cases like his, “and no further
discussion took place.” Saltzer Dec., Civ. Dkt. 12-1, p. 3, ¶ 8. For his part, Dr. Sombke
does “not have a specific memory of what was said during that conversation” with Mr.
Peterson. Sombke Dec., Civ. Dkt. 12-2, p. 2, ¶ 1.
Whether Mr. Peterson did or did not consult with Saltzer about putting Dr.
Sombke on the stand is irrelevant because his refusal to do so plainly falls “within the
wide range of reasonable professional assistance.” See Strickland, 466 U.S. at 689. Mr.
Peterson’s concerns about opening Dr. Sombke up to cross examination were reasonable
and valid. Providing Dr. Sombke’s evaluation through his report only ensured that
particularly damning facts—including Saltzer’s sexual relationship with a seventeenyear-old former student—were not further highlighted by the Government on cross
examination.
Moreover, no prejudice resulted from Mr. Peterson’s failure to put Dr. Sombke on
the stand. The Court was free to reach a different conclusion than Dr. Sombke regarding
recidivism, and it did so based on the more than ample evidence in the record. The
behavior that spanned decades, the hands-on abuse that occurred, the methodical
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grooming processes utilized by Saltzer, and his abuse of positions of power were all
factors that led the Court to conclude his risk of reoffending was “substantial.” Further
explanation from Dr. Sombke regarding why he concluded Saltzer’s risk of reoffending
was merely “moderate” would not have changed the Court’s conclusion that it was more
so. Accordingly, this claim must likewise be dismissed.
5. Failure to argue child pornography guidelines should be given less weight
Next, Saltzer alleges that Mr. Peterson was ineffective because he did not make
what is commonly referred to as a Kimbrough argument; that is, an argument that child
pornography guidelines “are not a product of the United States Sentencing Commissions’
characteristic institutional role and should therefore be given less weight.” Civ. Dkt. 1, p.
7. This claim must be dismissed because (1) Mr. Peterson did in fact make this very
argument; (2) it is an argument largely inapplicable to child pornography production and
hands-on molestation cases, as was the case here; and (3) the Court was aware of its
discretion to depart from the guidelines based on a disagreement in policy, but chose not
to do so in this case.
The case of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct 558 (2007) stands
for the proposition that a district court has the authority to vary from the crack cocaine
Guidelines based on a policy disagreement with the Guidelines themselves. See U.S. v.
Henderson, 649 F.3d 955, 959–60 (9th Cir. 2011). Later courts have held, however, that
Kimbrough’s rationale is not limited to the crack cocaine Guidelines. Id. 649 F.3d at 960.
The Ninth Circuit has held that “similar to the crack cocaine Guidelines, district courts
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may vary from the child pornography Guidelines, § 2G2.2, based on a policy
disagreement with them, and not simply based on an individualized determination that
they yield an excessive sentence in a particular case.” Id. at 963. Section 2G2.2. applies
when the defendant receives, transports, ships, solicits, advertises, or possesses material
involving the sexual exploitation of a minor. Here, however, Saltzer was sentenced under
§ 2G2.1. That provision governs the sexual exploitation of a minor by producing sexually
explicit material.
Saltzer argues that had a Kimbrough argument been made, “the Court would have
been made aware of the flaws in the formulation of the applicable guidelines and would
likely have placed less weight on the recommended guideline sentencing range that it
did.” This argument fails for at least three reasons.
First, Mr. Peterson cited to Kimbrough in his sentencing memorandum and argued
that the “guidelines for child pornography cases have been the subject of much debate,”
and that the “range for child pornography has steadily increased without any real reason
except, perhaps, politics.” Crim. Dkt. 35, pp. 13–14.
Second, as alluded to above, Kimbrough and its progeny governs child
pornography possession and distribution cases. As the Government points out, none of
those cases involve the production of child pornography, hands-on molestation of minors,
or distribution of self-produced child pornography, all of which occurred here. Again,
Saltzer was sentenced under § 2G2.1 (production), not § 2G2.2 (possession, distribution).

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Finally, the argument Saltzer is now making is not a novel one. The Court is—and
was at the time of sentencing—well aware of Kimbrough’s rationale and application to
child pornography guidelines. Indeed, the Court has departed from such guidelines when
appropriate; for example, this Court will often not apply the suggested two-level
enhancement when an offense involves the use of a computer pursuant to § 2G2.2(b)(6),
since almost all child pornography possession cases now involve the use of a computer.
In sum, Mr. Peterson was not ineffective in this regard because he did raise the
very argument that Saltzer claims he did not. Even if he had not, that failure would not
have constituted ineffective assistance because Kimbrough and its progeny are relevant to
child pornography possession and distribution cases—not necessarily child pornography
production cases sentenced under § 2G2.1. Finally, no prejudice could have possibly
resulted from this alleged failure because the Court was aware of its discretion to depart
from the guidelines and has done so before. This claim is dismissed.
6. Guidelines longer than necessary
Saltzer next argues that Mr. Peterson provided ineffective assistance “by not
arguing that the advisory guidelines in general, and specifically as applied in this case,
were too long and greater than necessary to achieve the purposes of sentencing.” Civ.
Dkt. 1, p. 8. Saltzer points to six specific arguments that Mr. Peterson did not make, but
which he posits would have led the Court to impose a lesser sentence: (1) current federal
guidelines have led to an ever-increasing rate of incarceration; (2) Americans imprison
more of our citizens—and for longer periods of time—than any other country; (3) certain
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prominent scholars’ opinions that American punishment is “comparatively harsh;” (4)
Justice Anthony Kennedy—at an ABA Annual Meeting—stated that sentencing
guidelines should be revised downward; (5) a former Florida AUSA has called the
guidelines “too harsh;” and (6) Attorney General Eric Holder has noted that “too many
Americans go to too many prisons for far too long.” Id. pp. 8–13. Saltzer’s claim that Mr.
Petersons’s failure to point out these opinions somehow rises to ineffective assistance of
counsel is absurd. This is not binding precedent that Mr. Peterson failed to point out, but
commonly known statistics and excerpts from scholarly articles and ABA meetings.
And, contrary to Saltzer’s assertion, Mr. Peterson did argue that the advisory
guidelines were greater than necessary to achieve the purposes of sentencing under §
3553(a). As Mr. Peterson points out in his affidavit:
At page 1, I urged the court that Mr. Saltzer’s sentence should be “the type
and length . . . that is sufficient, not greater than necessary to comply
with . . . § 3553(a).” I did the same at page 2, identifying the four purposes
set forth at§ 3553(a)(2). At page 9, I urged the court to impose a sentence
“less than thirty-years [which] can fulfill all the objectives of a just
sentence, and leave open the possibility that Mr. Saltzer can return to a life
with meaning and service.” I reiterated the message on page 10—that a
“sentence in the range of 180 months fulfills the objectives of promoting
respect for the law and provides just punishment for this offense.” At page
11—“A sentence of 180 months is more than adequate . . . .” At page 14 I
argued that in view of Mark’s “acceptance of responsibility, his history of
service as a social worker and the others matters set out . . . a sentence . . .
of 180 months is sufficient to meet the goals of punishment, rehabilitation,
deterrence and protection of society.” I did the same on page 18. In
simplest terms, I did what they suggest should have been done.
To conclude, Mr. Peterson did argue that the Guidelines as applied to this case
were too long. Pointing out that many scholars, prosecutors and judges have opined that
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American punishment is comparatively harsh would have—without a doubt—made no
difference whatsoever in Saltzer’s sentence. Accordingly, neither Strickland prong is
satisfied and this claim must fail.
7. Nature of Saltzer’s crime
Seventh, Saltzer argues that Mr. Peterson was ineffective in failing to argue that
the nature of Saltzer’s crimes would subject him to physical and sexual abuse in prison.
Saltzer again claims that Mr. Peterson was ineffective for not pointing the Court to
various sources indicating that sex offenders are particularly vulnerable to physical and
sexual abuse in prison. Again, failing to cite specifically to certain studies, law review
articles, and non-controlling case law does not rise to the level of ineffective assistance of
counsel. As far as controlling authority goes, Saltzer makes two arguments: (1) that Mr.
Peterson should have argued USSG § 5H1.4 authorized the Court to consider Saltzer’s
physical appearance as warranting a downward departure; and (2) Mr. Peterson was
ineffective in failing to cite to United States v. Parish, 308 F.3d 1025 (9th Cir. 2002).
Each argument will be discussed in turn.
First, USSG § 5H1.4 provides:
Physical condition or appearance, including physique, may be relevant in
determining whether a departure is warranted, if the condition or
appearance, individually or in combination with other characteristics, is
present to an unusual degree and distinguishes the case from the typical
cases covered by the guidelines.
USSG § 5H1.4. Perhaps Mr. Peterson did not argue for a departure under this provision
because there is nothing unusual or distinguishable about Saltzer’s physical condition or
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appearance. At the time of sentencing, Saltzer was forty-six years-old, standing
approximately 5’10” tall and weighing approximately 170 pounds. He reported being in
good health, with no history of mental or emotional problems, and no history of alcohol
dependence or abuse. Saltzer most certainly does not possess any physical conditions that
are present to an unusual degree, or somehow distinguishes his case from other typical
cases. In sum, this provision could not be more inapplicable. Accordingly, neither
Strickland prong is satisfied under this argument.
Second, in Parish, a plurality held that the district court did not abuse its discretion
when it departed downward eight levels, on two grounds: (1) the defendant’s conduct fell
outside the “heartland” of the offense of possessing child pornography; and (2) the
defendant was unusually susceptible to abuse by other inmates in prison because of his
stature, demeanor, naiveté, and the nature of the offense. Saltzer does not argue that his
conduct somehow fell outside the “heartland” of the offenses charged; rather, he argues
that his homosexuality, physical appearance, and gentle, non-threatening demeanor are
additional factors that make him “prey for aggressive inmates.” Civ. Dkt. 1, p. 14.
Mr. Peterson was not ineffective for failing to cite to Parish, because as the
Government points out, Parish can be easily distinguished. Central to the district court’s
decision in that case was its finding that Parish’s conduct was “less culpable” and
“outside the heartland” of child pornography possession cases. Parish, 308 F.3d at 1028.
Here—in stark contrast—Saltzer’s conduct was very much within the heartland of child
pornography production cases. Indeed, his conduct was even more culpable than most.
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As stated, Saltzer’s case involved hands-on molestation of multiple victims, child
pornography production with numerous victims, and distribution of that pornography to a
vast network of other child pornographers. In sum, none of the authorities Saltzer cites to
suggest that the failure to raise this argument violates Strickland’s performance standard.
Simply put, it does not.
Furthermore, no prejudice resulted from Mr. Peterson’s failure to argue Saltzer’s
homosexuality, physical appearance, gentle demeanor, and the nature of the offense make
him more of a target in prison. At the time of sentencing, the Court considered the history
and characteristics of the defendant. See U.S.C. § 3553(a)(1). The Court noted:
Turning to the defendant’s history and characteristics, the defendant is a 46year-old male. He has never married nor does he have any children. He has
no prior criminal history of any type, no substance abuse history of any
type. The defendant is well-educated and has maintained significant
employment as a counselor, was also employed—I was going to say
ironically but I don't think “irony”' is the right term—as a counselor
providing sex therapy treatment for offenders and victims and as a school
counselor. The defendant had no prior mental health diagnosis or substance
abuse history to consider. He comes from a family well established in the
Treasure Valley, very well respected, and from a very accomplished family
I might add.
Sent. Trans., Civ. Dkt. 9-2, pp. 42, ll. 24–5; p. 43, ll. 1–10.
Saltzer’s homosexuality, physical appearance, and demeanor were simply not
factors that warranted noting, let alone factors that warranted a departure. Moreover, it is
common knowledge that sex offenders face an elevated risk of abuse in prison. But this
factor “is equally present for all similarly situated sex offenders who face prison
sentences” and is therefore not unusual. See United States v. Stoterau, 524 F. 3d 988,
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1013 (9th Cir. 2008) (“mere membership in a class of offenders that may be targeted by
other inmates,” is insufficient grounds for a downward departure) (citing United States v.
Kapitzke, 130 F.3d 820, 822 (8th Cir. 1997) (reversing a downward departure for
susceptibility to abuse in prison that was based on defendant’s status as a child
pornographer)). In short, Mr. Peterson’s failure to raise these factors with the Court did
not change the outcome of the proceeding and no prejudice occurred. Accordingly, this
claim is also dismissed.
8. Cumulative errors
Lastly, Saltzer contends that all of these errors, looked at cumulatively, constitute
ineffective assistance of counsel.
The Ninth Circuit recognizes the concept of cumulative errors resulting in
prejudice where no one error alone is prejudicial. See Mak v. Blodgett, 970 F.2d 614, 622
(9th Cir.1992). See also Harris v. Wood, 64 F.3d 1432, 1438–39 (9th Cir.1995); United
States v. Frederick, 78 F.3d 1370, 1381 (9th Cir.1996). However, that concept does not
apply where the alleged errors are not errors at all. See United States v. Lindsay, 634 F.3d
541, 555 (9th Cir.2011). The Court has found none here.
CONCLUSION
Dismissal of all of Saltzer’s ineffective assistance of counsel claims requires
further comment. Strickland directs the Court to “eliminate the distorting effects of
hindsight” to the extent possible and to evaluate the challenged conduct “from counsel's

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perspective at the time.” Strickland, 466 U.S. at 690. Recognizing the difficulty of doing
so, Strickland explained further:
[A] court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances,
the challenged action “might be considered sound trial strategy.” There are
countless ways to provide effective assistance in any given case. Even the
best criminal defense attorneys would not defend a particular client in the
same way.
Id. (citations omitted) (emphasis added).
As shown above, virtually all of the acts and omissions of which Saltzer complains
were the result of strategic decisions generally left to counsel and not to the demands of a
client. But a difference of opinion regarding tactical decisions is not proof of ineffective
assistance of counsel. See Cox v. Ayers, 613 F.3d 883, 893 (9th Cir.2010) (citing United
States v. Mayo, 646 F.3d 369, 375 (9th Cir.1981) (per curiam)).
CERTIFICATE OF APPEALABILITY
A § 2255 movant cannot appeal from the denial or dismissal of his § 2255 motion
unless he has first obtained a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b). A certificate of appealability will issue only when a movant has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this standard when the court has dismissed a § 2255 motion (or claims within a
§ 2255 motion) on procedural grounds, the movant must show that reasonable jurists
would find debatable (1) whether the court was correct in its procedural ruling, and (2)
whether the motion states a valid claim of the denial of a constitutional right. Slack v.
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McDaniel, 529 U.S. 473, 484 (2000). When the court has denied a § 2255 motion or
claims within the motion on the merits, the movant must show that reasonable jurists
would find the court’s decision on the merits to be debatable or wrong. Id.; Allen v.
Ornoski, 435 F.3d 946, 951 (9th Cir. 2006).
After carefully considering the record and the relevant case law, the Court finds
that reasonable jurists would not find the Court’s rulings on Saltzer’s motion to be
debatable or wrong. Accordingly, a certificate of appealability will not issue.
ORDER
IT IS ORDERED:
1. Defendant Saltzer’s Motion to Vacate/Set Aside/Correct Sentence Pursuant
to 28 U.S.C. § 2255 (Civ. Dkt. 1) is DENIED.
2. Saltzer’s Motion to Seal (Civ. Dkt. 2) is DISMISSED as MOOT.
3. No certificate of appealability shall issue. Saltzer is advised that he may
still request a certificate of appealability from the Ninth Circuit Court of
Appeals, pursuant to Federal Rule of Appellate Procedure 22(b) and Local
Ninth Circuit Rule 22-1. To do so, he must file a timely notice of appeal.
4. If Saltzer files a timely notice of appeal, and not until such time, the Clerk
of Court shall forward a copy of the notice of appeal, together with this
Order, to the Ninth Circuit Court of Appeals. The district court’s file in this
case is available for review online at www.id.uscourts.gov.

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DATED: December 8, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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