Fasone v. USA

Filing 2

ORDER denying 1 Motion to Vacate (2255) as to Vincent Charles Fasone. Signed by Judge Howard D. McKibben on 12/19/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,
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vs.
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VINCENT FASONE,
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Defendant.
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_________________________________ )

3:12-cr-00091-HDM-VPC
3:14-cv-00335-HDM
ORDER

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Presently before the court is defendant’s pro se motion to
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vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §
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2255 (#51).

The government has responded (#53).

Defendant has

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filed a document entitled “supplemental memoranda,” which, because
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it was filed two weeks after the government’s response, defendant
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has not otherwise filed a reply, and the time for filing a reply
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has expired, the court construes as defendant’s reply (#54).
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On September 11, 2012, an undercover officer sent an
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invitation to a chat room entitled “#01111111dad&daughtersex”
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asking if anyone in Nevada or the Sacramento area wanted “to meet
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for real and hangout.”

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private message.

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if the officer had anyone to share, and the officer responded that

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he had a seven-year-old daughter.

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daughter had any friends, the officer mentioned a twelve-year-old

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babysitter.

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officer wanted to meet later that week to “have some fun” with

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“both” girls.

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defendant sent the undercover officer links to adult pornography

A minute later, defendant responded with a

During the ensuing conversation, defendant asked

When defendant asked if the

Later in the conversation, defendant asked whether the

In a series of chats over the following days,

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for the officer to show the girls in order to persuade them to

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engage in sexual activity.

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agreed to meet at the officer’s “apartment” on Thursday, September

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20, 2012.

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time, confirmed that he intended to engage in sexual activity with

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both girls, and was subsequently arrested.

Defendant and the officer eventually

Defendant showed up to the meeting at the designated

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On October 24, 2012, the grand jury returned a two-count

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superseding indictment charging defendant with attempted coercion

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of a minor in violation of 18 U.S.C. § 2422(b) and commission of a

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felony sex offense by an individual required to register as a sex

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offender in violation of 18 U.S.C. § 2260A.

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defendant entered a plea of guilty to both counts without the

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benefit of a plea agreement.

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defendant to a term of imprisonment of 150 months on Count 1, and a

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mandatory consecutive term of 120 months imprisonment on Count 2.

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Defendant appealed his sentence.

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Circuit affirmed.

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motion for relief under 28 U.S.C. § 2255.

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On January 31, 2013,

On May 22, 2014, the court sentenced

On March 18, 2014, the Ninth

On June 25, 2014, defendant filed the instant

Pursuant to § 2255, a federal inmate may move to vacate, set
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aside, or correct his sentence if: (1) the sentence was imposed in

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violation of the Constitution or laws of the United States; (2) the

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court was without jurisdiction to impose the sentence; (3) the

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sentence was in excess of the maximum authorized by law; or (4) the

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sentence is otherwise subject to collateral attack.

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Id. § 2255.

Defendant advances seven grounds for relief in his petition:

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(1) 18 U.S.C. § 2422(b) is unconstitutional; (2) the government

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entrapped defendant into committing the underlying offenses; (3)

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the court erred in applying an eight-level enhancement because the

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offense involved a minor under the age of 12; (4) defendant has

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been shown several conflicting versions of the conditions of his

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supervised release and does not know which bind him upon release;

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(5) the court abused its discretion by sentencing defendant to

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lifetime supervision, prohibiting defendant from consuming alcohol

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for life, and banning defendant from all forms of pornography; (6)

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18 U.S.C. § 2260A is unconstitutional; and (7) the court erred by

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considering and not striking an uncorroborated allegation in the

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PSR that the defendant had sex with a minor in Asia.

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I. Constitutionality of 18 U.S.C. § 2422(b)

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Defendant argues 18 U.S.C. § 2422(b) is unconstitutional

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because a person may be convicted under it solely for having

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illicit thoughts.

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not raise this claim on direct appeal, it is procedurally

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defaulted, and at any rate the claim is without merit.

The government argues that because defendant did

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“If a criminal defendant could have raised a claim of error on

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direct appeal but nonetheless failed to do so, he must demonstrate”

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either “cause excusing his procedural default, and actual prejudice

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resulting from the claim of error,” United States v. Johnson, 988
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F.2d 941, 945 (9th Cir. 1993), or that he is actually innocent of

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the offense, Bousley v. United States, 523 U.S. 614, 622 (1998).

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“[C]ause for a procedural default on appeal ordinarily requires a

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showing of some external impediment preventing counsel from

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constructing or raising the claim.”

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478, 492 (1986).

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of counsel . . . does not constitute cause and will not excuse a

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procedural default.”

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Murray v. Carrier, 477 U.S.

“Attorney error short of ineffective assistance

McCleskey v. Zant, 499 U.S. 467, 494 (1991).

Defendant did not raise this claim on direct appeal.

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Defendant has not argued or established that he is actually

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innocent of this offense and has made no effort to show cause for

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his procedural default.

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as § 2422(b) is not unconstitutional.

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Dhingra, 371 F.3d 557, 559 (9th Cir. 2004); United States v. Meek,

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366 F.3d 705 (9th Cir. 2004).

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person may not be convicted under § 2422(b) solely for having

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thoughts; to prove attempt to persuade, induce, entice or coerce a

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minor into engaging in sexual activity, the government must show

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the defendant took a substantial step toward completing that

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criminal act.

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(9th Cir. 2007).

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case is fully supported by the record, including defendant’s

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arrival at the designated meeting place on September 20, 2012.

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II. Entrapment

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Further, defendant cannot show prejudice,
See United States v.

Contrary to defendant’s argument, a

See United States v. Goetzke, 494 F.3d 1231, 1235
That defendant took a substantial step in this

Defendant argues that his conviction is unlawful because he

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was the target of a sting operation and thus he was entrapped into

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committing the crimes.

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unconditional guilty plea precludes review of this claim.

The government argues that defendant’s

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Where a defendant does not assert that his “guilty plea was

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involuntary” or “that it was made with a misunderstanding of the

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nature of the charge or the consequences of the plea,” a plea of

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guilty waives all defenses.

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578 (9th Cir. 1971).

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antecedent rulings and cures all antecedent constitutional

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defects.”

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Cir. 2005).

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that he did not understand its consequences.

United States v. Davis, 452 F.2d 577,

It also waives “all nonjurisdictional

United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th
Defendant has not asserted his plea was involuntary or
Accordingly,

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defendant’s plea of guilty to the charges waived any defenses he

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may have had thereto, including the defense of entrapment.

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In addition, defendant has procedurally defaulted this claim.

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Defendant did not raise this claim on direct appeal.

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not established that he is actually innocent of this offense and

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has made no effort to show cause for the procedural default.

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can defendant show prejudice.

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government to prove either that it did not induce the crime or that

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the defendant was predisposed to commit the crime before being

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contacted by government agents.

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F.3d 944, 951 (9th Cir. 2003).

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shown that here.

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crime involving child pornography, but he responded to an

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invitation sent by the officer generally to the entire chat room,

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he initiated plans to meet up, and he chose to send various

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pornographic links to the officer with the intent that they be

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viewed by the two minor girls.

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entrapped is thus clearly without merit.

Defendant has

Nor

A defense of entrapment requires the

See United States v. Gurolla, 333
The

government clearly could have

Not only had defendant been convicted of a prior

Defendant’s assertion that he was

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III. Eight-level Enhancement
Defendant argues that the court erred in applying an eight-

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level enhancement for a minor under the age of 12 because the minor

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in this case was fictional.

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enhancement on direct appeal, and the Ninth Circuit affirmed.

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defendant may not use § 2255 to relitigate issues that were decided

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on direct appeal.

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Cir. 1985).

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on appeal, the claim is procedurally defaulted because it was not

Defendant challenged the eight-level
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United States v. Redd, 759 F.2d 699, 701 (9th

To the extent this argument differs from that asserted

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raised on appeal.

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defendant has made no attempt to show cause, and he cannot show

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prejudice as the eight-level enhancement is proper even where the

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victim is fictitious. See U.S.S.G. § 2G1.3; United States v.

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Waltman, 529 Fed. App’x 680, 684 (6th Cir. 2013); United States v.

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Anderson, 509 Fed. App’x 868, 875 (11th Cir. 2013).

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IV. Conflicting Conditions of Supervised Release

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The procedural default is not cured because

Defendant asserts he was shown several different versions of

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the conditions of supervised release and does not know which

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version controls.

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sentencing were different from those shown to him by the Probation

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Office which were different from those in the judgment.

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government argues that because defendant did not raise this claim

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on direct appeal, it is procedurally defaulted.

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also argues that defendant’s assertion that he is confused about

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his conditions of release is belied by his clear citation to his

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conditions of supervised release.

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He asserts the conditions he was shown at

The

The government

Defendant did not raise this claim on direct appeal.
Defendant has not argued or demonstrated cause for failing to raise
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this argument on appeal, nor has he identified in which ways the

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various documents allegedly conflicted such that the failure to

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raise the argument caused him prejudice.

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is confused about which conditions control, the court advises

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defendant he is bound by the conditions set forth in the judgment

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of conviction. (See Doc. #40).

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V. Alcohol, Pornography and Lifetime Supervision Conditions

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To the extent defendant

Defendant argues the court abused its discretion by sentencing
defendant to lifetime supervision, prohibiting defendant from

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consuming alcohol for life, and banning defendant from all forms of

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pornography without setting forth on the record the basis for such

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conditions.

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raise this claim on direct appeal, it is procedurally defaulted.

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The government argues that because defendant did not

Defendant did not raise this claim on appeal and he has made

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no effort to show cause for the failure to do so.

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cannot show prejudice.

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the conditions of supervised release were apparent from the record

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and were proper.

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supervision for a sex offense, which this case involved.

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U.S.S.G. § 5D1.2(b)(2) & app. n. 1; United States v. Daniels, 541

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F.3d 915, 924 (9th Cir. 2008) (“The district court was within its

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discretion to conclude that a lifetime term of supervised release

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was necessary to punish [defendant] for his crime, to rehabilitate

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him, and to protect the public from future crimes by

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[defendant].”).

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vague and was properly applied to rehabilitate the defendant and

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protect the public.

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v. Rearden, 349 F.3d 608, 620 (9th Cir. 2003).

Further, he

The reasons for the court’s imposition of

Lifetime supervision is the recommended term of
See

The pornography prohibition is not overly broad or

See Daniels, 541 F.3d at 927-28; United States

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Finally, the court

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did not impose a lifetime ban on alcohol but instead banned

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defendant’s excessive use of alcohol and use of alcohol while

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participating in the required mental health treatment program.

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any rate, limitation of the defendant’s alcohol consumption was

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proper as there was evidence in the record that defendant had a

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history of substance abuse.

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743, 748 (9th Cir. 2008); United States v. Betts, 511 F.3d 872, 878

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(9th Cir. 2007).

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VI. Constitutionality of 18 U.S.C. § 2260A

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At

See United States v. Vega, 545 F.3d

Defendant asserts that § 2260A is unconstitutional under the

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Fifth, Eighth, Ninth, and Fourteenth Amendments because it applies

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only to sex offenders.

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defendant did not raise this claim on direct appeal, it is

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procedurally defaulted.

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give substantial deference to the legislature’s determination of

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the punishment for certain crimes.

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The government argues that because

Further, it argues that the court must

Defendant did not raise this claim on direct appeal and has

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not argued that he is actually innocent of this offense.

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defendant demonstrated any cause for his failure to raise the issue

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on appeal, and he cannot show any prejudice.

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held that § 2260A does not violate various constitutional

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provisions, including the Eleventh Circuit in an unpublished

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decision rejecting many of the same arguments defendant has raised

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here.

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2011) (holding § 2260A does not violate the Eighth Amendment);

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United States v. Carver, 422 F. App’x 796, 802 (11th Cir. 2011)

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(unpublished disposition) (finding that § 2260A does not

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criminalize the “status” of being a sex offender and thus does not

Nor has

Several courts have

See United States v. Wellman, 663 F.3d 224, 232 (4th Cir.

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violate the Fifth, Eighth, Thirteenth and Fourteenth Amendments).

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Cf. United States v. Hardeman, 704 F.3d 1266, 1269 (9th Cir. 2013)

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(upholding conviction under § 2260A and holding that the statute

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does not violate the Ex Post Facto Clause).

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that 18 U.S.C. § 2260A is not unconstitutional.

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VII. Uncorroborated Allegation in Presentence Report

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The court concludes

The PSR noted that during the online chat sessions with the

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undercover officer, defendant stated that he had previously engaged

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in sexual activity with children, specifically with a minor in

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Asia.

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because the court did not make specific findings as to its

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reliability, it should have been stricken from the PSR.

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government argues that because defendant did not raise this claim

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on direct appeal, it is procedurally defaulted.

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Defendant argues that this statement was uncorroborated and

The

Defendant failed to raise this claim on direct appeal and has

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not shown any cause for doing the failure.

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any prejudice, as the court’s failure to make specific findings as

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to the statement’s reliability was not error.

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state that defendant had sex with a minor in Asia; rather, it

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stated that during chat sessions defendant told the undercover

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officer that he had.

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made that statement, although he argued that it was factually

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untrue.

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defendant admitted he made, was properly included in the PSR.

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Certificate of Appealability

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Nor can defendant show

The PSR did not

Defendant admitted at sentencing that he had

(Sent. Tr. 18).

Accordingly, the statement, which

The standard for issuance of a certificate of appealability

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calls for a “substantial showing of the denial of a constitutional

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right.”

28 U.S.C. § 2253(c).

The Supreme Court has interpreted 28
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U.S.C. § 2253(c) as follows:
Where a district court has rejected the
constitutional claims on the merits, the
showing required to satisfy §2253(c) is
straightforward: The petitioner must
demonstrate that reasonable jurists would find
the district court’s assessment of the
constitutional claims debatable or wrong. The
issue becomes somewhat more complicated where,
as here, the district court dismisses the
petition based on procedural grounds. We hold
as follows: When the district court denies a
habeas petition on procedural grounds without
reaching the prisoner’s underlying
constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of
reason would find it debatable whether the
petition states a valid claim of the denial of
a constitutional right and that jurists of
reason would find it debatable whether the
district court was correct in its procedural
ruling.

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Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v.

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Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000).

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further illuminated the standard for issuance of a certificate of

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appealability in Miller-El v. Cockrell, 537 U.S. 322 (2003).

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Court stated in that case:

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The Supreme Court

The

We do not require petitioner to prove, before
the issuance of a COA, that some jurists would
grant the petition for habeas corpus. Indeed,
a claim can be debatable even though every
jurist of reason might agree, after the COA has
been granted and the case has received full
consideration, that petitioner will not
prevail. As we stated in Slack, “[w]here a
district court has rejected the constitutional
claims on the merits, the showing required to
satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable
jurists would find the district court’s
assessment of the constitutional claims
debatable or wrong.”
Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484).
The court has considered the issues raised by defendant with
respect to whether they satisfy the standard for issuance of a
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certificate of appeal and determines that none meet that standard.

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The court will therefore deny defendant a certificate of

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appealability.

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Conclusion

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To the extent any of defendant’s specific arguments have not

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been not addressed in this order, the court finds them to be

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without merit.

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motion to vacate, set aside, or correct sentence pursuant to 28

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U.S.C. § 2255 (#51) is DENIED.

In accordance with the foregoing, defendant’s

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IT IS SO ORDERED.

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DATED: This 19th day of December, 2014.

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____________________________
UNITED STATES DISTRICT JUDGE

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