Amundson v. United States of America

Filing 7

OPINION (also filed in case no 1:07-CR-141-01); signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KURT ALFRED AMUNDSON,
Petitioner,
v.

CASE NO. 1:10-CV-165
CASE NO. 1:07-CR-141-01

UNITED STATES OF AMERICA,

HON. ROBERT J. JONKER

Respondent.
__________________________________/
OPINION
This matter is before the Court on Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence (docket # 1). The United States has not responded to Petitioner’s motion.
The Court has carefully reviewed Petitioner’s motion and determined that an evidentiary hearing is
unnecessary to the resolution of this case. See Rule 8, RULES GOVERNING § 2255 CASES; Arredondo
v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (holding that an evidentiary hearing is not
required when the record conclusively shows that the petitioner is not entitled to relief).
BACKGROUND
In June 2007, Petitioner Kurt Amundson was indicted on charges of sexual exploitation of
a minor and child pornography receipt and possession. (Case No. 1:07-cr-141, docket # 1.) Under
the terms of a written plea agreement (case no. 1:07-cr-141, docket # 40), Petitioner agreed to plead
guilty to two counts in the indictment, one count of sexual exploitation of a minor and one forfeiture
count. In that agreement, Mr. Amundson expressly waived his right “to appeal a sentence that is
within or below the applicable statutory minimum and guideline range as determined by the Court
at sentencing and the manner in which the sentence was determined on the grounds set forth in 18

U.S.C. § 3742 or any ground whatever.” (Id. at ¶ 9.) He retained only the right to “appeal on
grounds, preserved at sentencing, that the Court incorrectly determined the guideline range.” (Id.)
Additionally, he expressly waived his “right to challenge such a sentence and the manner in which
it was determined in any collateral attack, including but not limited to, a motion brought under Title
28, United States Code, § 2255.” (Id.) The Court adopted the Magistrate Judge’s recommendation
that the plea agreement be accepted on September 9, 2007. (Case No. 1:07-cr-141, docket # 49.)
On December 10, 2007, the Court sentenced Mr. Amundson to 360 months imprisonment.
His sentence was the statutory maximum under 18 U.S.C. § 2251(a) and within the guideline range
of 360 months to life. During the sentencing, Mr. Amundson’s counsel stipulated to certain
enhancements to the base level of Mr. Amundson’s offense, including 2-level enhancements each
for sexual act or contact and for distribution. (Case No. 1:07-cr-141, docket # 76 at 7.) His counsel
further stipulated that any sentence was subject to a 2-level enhancement for obstruction. (Id. at 8.)
Mr. Amundson appealed his conviction and sentence. During the appeal, his counsel moved to
withdraw under Anders v. California, 386 U.S. 738 (1967), and the Sixth Circuit granted the motion.
(Case no. 1:07-cr-141, docket # 88.) The Sixth Circuit also affirmed Mr. Amundson’s conviction
and sentence. (Id.) The Court held that Mr. Amundson’s waiver of appeal was valid and that his
sentence was procedurally and substantively reasonable. (Id.)
ANALYSIS
A federal prisoner may challenge his sentence by filing in the district court where he was
sentenced a motion under 28 U.S.C. § 2255. A valid section 2255 motion requires a petitioner to
show that “the sentence was imposed in violation of the Constitution or laws of the United States,
the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
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maximum authorized by law or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
Section 2255 affords relief for a claimed constitutional error only when the error had a substantial
and injurious effect or influence on the proceedings. Watson v. United States, 165 F.3d 486, 488 (6th
Cir. 1999). Non-constitutional errors generally are outside the scope of section 2255 relief, and they
should afford collateral relief only when they create a “fundamental defect which inherently results
in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due
process.” Id. (internal quotation marks omitted).
Mr. Amundson moves to vacate his sentence under 28 U.S.C. § 2255, alleging he was denied
his Sixth Amendment right to effective assistance of counsel. Mr. Amundson’s ineffective
assistance claims are based on four different grounds: 1) trial and appellate counsel failed to appeal
the sentencing court’s use of the 2007 sentencing guidelines instead of the 2004 guidelines, which
was a violation of the Ex Post Facto Clause; 2) trial counsel failed to object to the sentencing court’s
obstruction of justice enhancement; 3) trial counsel failed to mount a frontal attack on the severity
of the guidelines regarding sexual exploitation of minors; 4) trial counsel failed to object to the
sentencing court’s reliance on the government’s unproven assertions regarding deterrence. Each of
Mr. Amundson’s claims are precluded by his plea agreement, where Mr. Amundson waived his right
to collaterally attack his sentence. (Case No. 1:07-cr-141, docket # 40 at ¶ 9.) Moreover, even on
the merits, Mr. Amundson’s claims do not warrant relief.
WAIVER
“[A] defendant’s informed and voluntary waiver of the right to collaterally attack a
conviction and sentence is enforceable.” In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007). “When
a defendant knowingly, intelligently, and voluntarily waives the right to collaterally attack his or her
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sentence, he or she is precluded from bring [sic] a claim of ineffective assistance of counsel based
on 28 U.S.C. § 2255.” Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001). However, “when
the ineffective assistance of counsel claims relate directly to the plea agreement or the waiver,” the
plea agreement does not foreclose a collateral attack. Id. “[I]n cases where a defendant argues that
his plea was not knowing or voluntary, or was the product of ineffective assistance of counsel under
Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985), it would be entirely circular
for the government to argue that the defendant has waived his right to an appeal or a collateral attack
when the substance of his claim challenges the very validity of the waiver itself.” In re Acosta, 480
F.3d at 422. This case falls clearly on the enforceable waiver side of the line.
Indeed, the Sixth Circuit has already determined that Mr. Amundson knowingly, intelligently,
and voluntarily waived his right to collaterally attack his sentence, and this Court agrees with that
determination. (Case No. 1:07-cr-141, docket # 88 at 3.) Specifically, the Sixth Circuit noted that
Mr. Amundson “waived his right to collaterally attack his sentence. At the guilty plea hearing, the
district court directly addressed Amundson concerning his waiver, and Amundson expressed his
understanding and agreement with the terms of the plea bargain.” (Id.) The record supports this
finding. At the plea hearing, the Magistrate Judge explained to Mr. Amundson his right to
collaterally attack his sentence under 28 U.S.C. § 2255, and that he was “giving up that right in
exchange for concessions made by the Government.” (Case No. 1:07-cr-141, docket # 48 at 27-28.)
Mr. Amundson stated that he understood that he was giving up the right. (Id. at 28.) He signed the
plea agreement and stated that he did so voluntarily and under his own free will. (Id. at 30.)
Mr. Amundson’s knowing and voluntary waiver of his right to collaterally attack his sentence
is enforceable and precludes him from bringing ineffective assistance of counsel claims in a section
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2255 motion. He does not fall under the exception that allows for such claims when they are based
on allegations that a plea was involuntary or the product of ineffective assistance of counsel, because
Mr. Amundson does not challenge either the voluntariness of the plea or counsel’s performance in
connection to it. Rather, he attacks counsel’s performance as it relates to sentencing. Accordingly,
Mr. Amundson waived his claims.
MERITS
Had the Court needed to rule to rule on Mr. Amundson’s allegations, his motion would still
be denied. Normally, to establish a claim of ineffective assistance, a criminal defendant must show
deficient performance and actual prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). Actual prejudice means “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. The “actual prejudice” standard girds the Sixth Amendment
right to effective counsel because that right is not an abstract idea recognized for its own sake, but
rather a pragmatic guarantee that all criminal defendants receive a fair trial process. Roe, 528 U.S.
at 483 (citing United States v. Cronic, 466 U.S. 648, 658 (1984)). “Absent some effect of challenged
conduct on the reliability of the process, the effective counsel guarantee is generally not implicated.”
Id. (internal quotations omitted).
Regarding his second, third, and fourth claims, Mr. Amundson has not shown he suffered
actual prejudice. See Strickland, 466 U.S. at 694. Mr. Amundson’s allegation that his counsel was
deficient for stipulating to the obstruction enhancement is without merit. As Mr. Amundson
correctly notes, his co-defendant, Robert Shafer, did not receive an obstruction enhancement. The
two cases can be distinguished, however, because evidence that both Mr. Amundson and Mr. Shafer
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destroyed material evidence was protected by Mr. Shafer’s proffer and could not be used against
him. (Case No. 1:07-cr-141, docket # 73 at 57.) Mr. Amundson did not have the benefit of any such
protection, and thus even if his counsel had objected to the obstruction enhancement, there is no
reasonable probability that the Court would have sustained the objection. Likewise, even if his
counsel had objected to the severity of the guidelines as they relate to crimes of sexual exploitation
or the Court’s reliance on the Government’s deterrence assertions, there is no indication that
Mr. Amundson would have received a different sentence because of it. The sentencing record fully
expresses the Court’s rationale for the guideline determinations and the actual sentence of the Court.
The rationale justifies the sentence independent of the Government’s deterrence theory, and is
consistent with § 3553 factors independent of the guidelines.
Mr. Amundson’s claim of ineffective assistance based on the failure to raise an ex post facto
violation challenge merits more extensive discussion than his other contentions. Even though
Mr. Amundson pleaded guilty to a crime that occurred in June 2004, he was sentenced under the
2007 sentencing guidelines, which were in effect at the time of his sentencing. “Guidelines policy
statements provide that a sentencing court must apply the version of the Guidelines in effect at the
time of sentencing unless doing so would violate the Ex Post Facto Clause.” United States v. Duane,
533 F.3d 441, 447 (6th Cir. 2008). Mr. Amundson alleges that use of the 2007 guidelines was an
ex post facto violation, since the 2007 guidelines raised his base offense level by five points and
allowed two two-point sentencing enhancements (for sexual act or contact and for distribution) that
did not exist in the 2004 guidelines. Mr. Amundson’s guideline range, using the 2004 guidelines,
would be 210 to 262 months, as opposed to the 2007 guideline range of 360 months to life. The

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statutory maximum sentence for Mr. Amundson’s crime is 360 months. See 18 U.S.C. § 2251(a),
(e).
The Sixth Circuit has not yet decided “whether a change to the Guidelines even implicates
the Ex Post Facto Clause” after United States v. Booker, 543 U.S. 220 (2005). Duane, 533 F.3d at
445. In Duane, the Sixth Circuit “assume[d] arguendo that a retroactive change to the Guidelines
could implicate the Ex Post Facto Clause.” Id. at 447. In an earlier decision addressing a related
issue, the Sixth Circuit strongly suggested that the advisory nature of the guidelines obviates ex post
facto concerns: “Now that the Guidelines are advisory, the Guidelines calculation provides no such
guarantee of an increased sentence, which means that the Guidelines are no longer akin to statutes
in their authoritativeness. As such, the Ex Post Facto Clause itself is not implicated.” United States
v. Barton, 455 F.3d 649, 655 n. 4 (6th Cir. 2006). The Seventh Circuit has expressly held that
because “the ex post facto clause should apply only to laws and regulations that bind rather than
advise,” applying retroactively revised guidelines does not violate the Clause. United States v.
Demaree, 459 F.3d 791, 795 (7th Cir. 2006). The Court recognizes that most circuits “have
continued, post-Booker, to analyze whether applying revised Guidelines retroactively violates the
Ex Post Facto Clause,” Duane, 533 F.3d at 447, n. 1, but agrees with the reasoning and holding of
Demaree, and the dicta of Barton. The guidelines for Mr. Amundson, under any version, were
merely advisory. The only binding sentencing range for him was the statutory range of zero to 30
years, a range honored by the actual sentence of 360 months. A change in the sentencing
guidelines–even one that increases the guideline score–does not subject Mr. Amundson to higher
punishment exposure after the fact of the offense. See Michael v. Ghee, 498 F.3d 372, 383 (6th Cir.
2007) (the relevant inquiry is “whether the new guidelines present a significant risk of increasing the
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plaintiff’s amount of time served”). In both 2004 and 2007, the potential punishment was the same,
a fact he knew from the plea agreement and plea colloquy. Accordingly, there is no ex post facto
problem.
Even assuming the retroactive application of revised guidelines is an ex post facto violation,
and that his counsel had objected to the use of the 2007 guidelines, it is not reasonably probable that
the result in Mr. Amundson’s case would change. Since Booker, the sentencing guidelines are
advisory, not mandatory, and district courts may deviate from the guideline range. Here, the only
concrete limits on Mr. Amundson’s sentence was the 360-month statutory maximum. Moreover,
a sentencing judge must consider relevant conduct when sentencing a defendant. See United States
v. Howes, 478 F.3d 729, 733 (6th Cir. 2007) (“the Guidelines require courts to consider all relevant
conduct when determining the sentencing guideline range”). “A district court may not include
conduct in its sentencing calculation . . . unless the conduct at issue amounts to an offense for which
a criminal defendant could potentially be incarcerated.” United States v. Shafer, 199 F.3d 826, 831
(6th Cir. 1999). Even though Mr. Amundson only pleaded guilty to a crime that occurred in June
2004, he engaged in related conduct which could have resulted in incarceration, as outlined in the
pre-sentencing report, in 2005 and 2006. See Duane, 533 F.3d at 448 (“because a defendant is on
notice that new Guidelines will apply to previous crimes if he commits additional crimes, the
defendant is not disadvantaged by the amended Guidelines . . . but by his election to continue
criminal activity after the amendments became effective”) (internal quotation marks omitted). The
sentencing court referenced the “stomach-turning” nature of the pre-sentencing report and stated it
was one reason for the imposition of the statutory maximum sentence of 360 months. (Case No.
1:07-cr-141, docket # 76 at 39, 40.) Mr. Amundson admitted, during his plea hearing, that he took
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pictures of the child in question on more than one occasion, with some activity perhaps occurring
later than June 2004, even “a couple years” later. (Case No. 1:07-cr-141, docket # 48 at 33.)
Because the sentencing court considered Mr. Amundson’s post-2004 history in the pre-sentence
report and based Mr. Amundson’s imprisonment term, at least in part, on the relevant conduct found
in that report, it is not reasonably probable that Mr. Amundson’s counsel would have changed that
outcome by objecting to the use of the 2007 sentencing guidelines.
Mr. Amundson effectively waived the right to assert the collateral attacks he now brings.
Even if he had not effectively waived them, he would not prevail on the merits.
An order consistent with this opinion will be entered.

Dated:

April 29, 2011

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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