Moore-Powell v. USA

Filing 2

ORDER denying and dismissing with prejudice Petitioner's #1 Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by Chief Judge Martin Reidinger on 6/07/2021. (Pro se litigant served by US Mail.) (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00133-MR
[CRIMINAL CASE NO. 1:18-cr-00139-MR-WCM-1]

ANTHONY RYAN MOORE-POWELL, )
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
________________________________ )

ORDER

THIS MATTER is before the Court on Petitioner’s Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody. [CV Doc. 1].1
I.

PROCEDURAL BACKGROUND
On September 27, 2018, Homeland Security Investigations (HIS)

Special Agent Klarisa Zaffark, while operating in an undercover capacity,
posted an online advertisement on a website intended to arrange sexual
encounters between adults and children. [CR Doc. 33 at ¶ 12: Presentence

Citations to the record herein contain the relevant document number referenced
preceded by either the letters “CV,” denoting that the document is listed on the docket in
the civil case file number 1:21-CV-00133-MR, or the letters “CR,” denoting that the
document is listed on the docket in the criminal case file number 1:18-CR-00139-MRWCM-1.
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Investigation Report (PSR)]. The ad purported to offer a boy, who was
fictitious, available for sex in exchange for payment. In her undercover role,
Agent Zaffark pretended to be the child’s father. [Id.]. Agent Zaffark received
responses from individuals who were seeking such an arrangement,
including from Petitioner Anthony Moore-Powell (“Petitioner”). [Id. at ¶¶ 1213]. Petitioner contacted Agent Zaffark and expressed his interest in paying
for sex with the boy, who Petitioner believed to be eight years old. Over the
next several weeks of communications, Petitioner agreed to pay $1,500.00
to have oral sex and anal intercourse with the 8-year-old boy over the course
of a weekend. [Id. at ¶ 13].
To entice the boy into engaging in sex with him, Petitioner sent child
pornography videos to Agent Zaffark that Petitioner wanted shown to the
boy.

Petitioner also requested that Agent Zaffark provide prescription

muscle relaxers to the boy that Petitioner hoped would facilitate engaging in
anal sex with him. [Id. at ¶ 14]. Petitioner also purchased a Power Ranger
toy that he intended to give the child as a gift. Petitioner told Agent Zaffark
that he would bring a Nintendo Switch handheld gaming system that
Petitioner intended to give the boy to distract him while Petitioner was
sexually assaulting him. [Id.].

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On November 15, 2018, Petitioner flew from Chicago, Illinois to
Asheville, North Carolina. He rented a car and drove to a local hotel and
checked in. He then went to meet the individual he believed to be the child’s
father but was in fact an undercover agent. In this meeting, Petitioner gave
the agent a $200 down payment for the agreement to engage in sex with the
child. After the meeting, Petitioner drove back to his hotel to await delivery
of the boy to his hotel room. Law enforcement then arrested Petitioner in the
parking lot of the hotel. [Id. at ¶ 15]. Agents found the Power Ranger, the
Nintendo Switch system, and $1,300.00 cash in Petitioner’s rental car. [Id.
at ¶ 16]. Agents also found several electronic devices in Petitioner’s car,
which contained depictions of sadomasochism involving prepubescent and
pubescent males and females, including infants and toddlers, and over
30,000 “Torchat” dark web messages reflecting Petitioners desire to abuse
prepubescent children. [Id. at ¶ 7].
On December 4, 2018, Petitioner was charged in an 11-count Bill of
Indictment with one count of coercion and enticement in violation of 18
U.S.C. § 2422(b) (Count One); seven counts of distribution of child
pornography by interstate commerce in violation of 18 U.S.C. §
2252A(a)(2)(A) (Counts Two through Eight); one count of traveling in
interstate commerce for the purpose of illicit sexual conduct in violation of 18
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U.S.C. § 2423(b) (Count Nine); one count of transporting child pornography
by interstate commerce in violation of 18 U.S.C. § 2252A(a)(1) (Count Ten);
and one count of possession and access with intent to view child
pornography involving a prepubescent minor and a minor under 12 years of
age in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count Eleven). [CR Doc. 19:
Bill of Indictment].
The parties entered a plea agreement pursuant to which Petitioner
agreed to plead guilty to Count One and the Government agreed to dismiss
Counts Two through Eleven of the Indictment. [CR Doc. 25 at ¶¶ 1-2: Plea
Agreement]. In the plea agreement, Petitioner acknowledged the 10-year
mandatory minimum sentence for Count One. [Id. at ¶ 5]. The parties
agreed pursuant to Rule 11(c)(1)(B) to jointly recommend that the Court find
a base offense level of 28, U.S.S.G. §2G2.1, and a two-level enhancement
for the use of a computer or interactive computer service, U.S.S.G.
§2G1.3(b)(3). [Id. at ¶ 8(a)]. The parties also agreed to retain their rights to
argue other specific offense characteristics, enhancements, departures, and
adjustments to the offense level. [Id. at ¶ 8(d)]. The parties also agreed that
they could seek departures or variances from the applicable guidelines
range, as permitted by law, at sentencing. [Id. at ¶ 8(e)]. As part of the plea,
Petitioner waived his rights to contest his conviction and sentence in any
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appeal or post-conviction proceeding, except for claims of ineffective
assistance of counsel and prosecutorial misconduct. [Id. at ¶ 17]. Petitioner
pleaded guilty in accordance with the plea agreement.

[CR Doc. 27:

Acceptance and Entry of Guilty Plea].
Before Petitioner’s sentencing hearing, a probation officer prepared a
PSR. [CR Doc. 33]. Consistent with the parties’ Rule 11(c)(1)(B) agreement,
the probation officer recommended a base offense level of 28 and a twolevel enhancement for the use of a computer for enticement. [Id. at ¶¶ 2223; see id. at ¶ 9]. The probation officer also recommended an eight-level
enhancement because the offense involved a minor under the age of 12,
U.S.S.G. §2G1.3(b)(5).

[Id. at ¶ 24].

Finally, the probation officer

recommended a three-level reduction for acceptance of responsibility,
U.S.S.G. §3E1.1(a), (b), for a total offense level (TOL) of 35. [Id. at ¶¶ 3133]. With a TOL of 35 and a criminal history category of I, the applicable
guidelines imprisonment range was 168 to 210 months. [Id. at ¶ 55].
Neither party objected to the PSR. Petitioner, however, moved for a
downward variance from the guidelines range. [CR Doc. 35]. Petitioner
argued that the minor involved was fictitious and, but for the Agent’s
“decision to select an age that would increase the Total Offense Level by 8
levels,” Petitioner’s TOL would have been 27, yielding a guidelines range of
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70 to 87 months’ imprisonment. [Id. at 4]. Recognizing the mandatory
minimum sentence of 10 years’ imprisonment, Petitioner requested a
downward variance allowing him to receive a sentence consistent with that
minimum. [Id.]. In support of his motion, Petitioner presented the recidivism
findings from a Psychological Evaluation of Petitioner performed by
psychologist Ashley King, Ph.D., and submitted a copy of the full evaluation
report to the Court. [Id.]. Petitioner provided, in pertinent part, as follows:
Dr. King specifically found that [Petitioner’s] score is
similar to others who were categorized in the Above
Average risk category for predicted sexual
recidivism. It is important to note that his score was
not considered in the “high” category for predicted
sexual recidivism.
Further, sexual recidivism
decreases with age. At the age of 35, in nine years
from now, his STATIC99-R score will decrease to a
four with a reduced predicted sexual recidivism rate.
At age 40, his STATIC99-R score would be a three
corresponding to an “average” category [of]
predicted sexual recidivism.
[Id. at 4].

Petitioner argued for downward variance to the mandatory

minimum sentence based on what would be an average risk of sexual
recidivism on release from prison, his lack of criminal history, and because
he would have to register as a sex offender.2 [Id. at 5].

Of note, however, if Petitioner had been sentenced to 120 months in prison, he would
have been approximately 37 years old on release, not 40. The Psychological Evaluation
did not predict Petitioner’s risk of recidivism at age 37. [See Doc. 35-1 at 11].
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Before sentencing, the Government moved for a two-level downward
departure to a TOL of 33 based on substantial assistance pursuant to
U.S.S.G. §5K1.1. [CR Doc. 37]. The guidelines imprisonment range for a
TOL of 33 and a criminal history category of I was 135 to 168 months. [See
id. at 3].
Petitioner was sentenced on August 22, 2019.

[CR Doc. 50:

Sentencing Tr.]. The Court accepted the PSR as written, finding that the
applicable guidelines range calls for a term of imprisonment between 168 to
210 months. [Id. at 10]. The Court granted the Government’s motion for
downward departure and operated from a TOL of 33 in sentencing Petitioner.
[Id. at 10-11]. Petitioner’s counsel argued consistent with his motion for a
downward variance. [Id. at 12-16]. The Government thoroughly responded.
[Id. at 17-21]. Relative to Petitioner’s argument that Petitioner’s TOL would
have been 27 but for the Agent’s decision to select an age under 12 for the
fictitious boy victim, the Government made this age available to Petitioner
and gave Petitioner the opportunity to select it. [Id. at 17]. Furthermore,
based on the child pornography Petitioner possessed, which was primarily
of infants and toddlers, Petitioner would have rejected an older child as
outside of his age of interest. [Id.]. The Government advocated for a “at
least” a 168-month sentence, citing the “heartbreaking” and “graphic”
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relevant conduct, Petitioner’s pedophilic disorder as described in the report,
and the substance of Petitioner’s communications with other like-minded
individuals on the dark web in which he facilitated the rape of another small
child and found humor in the possibility of such child being kidnapped, raped,
and murdered. [Id. at 18-20].
The Court sentenced Petitioner to a term of imprisonment of 168
months and a lifetime term of supervised release. [Id. at 27, 33]. The Court
stated its reasons for imposing this sentence as follows:
There are several factors in the sentencing statute
that the Court is required to take into account.
Among those are the history and characteristics of
the defendant. In that sense, the defendant presents
a somewhat conflicting history and set of
characteristics because, on the one hand, the
defendant has been law-abiding with the exception
of the events related to this particular matter and
seemed to be someone who has conducted himself
well in society.
But, then, on the other hand, he presents
himself with the history and characteristics of one
who takes pleasure, and has taken pleasure for
some extended period, in some of the most extreme
forms of child abuse and viewing those extreme
forms of child abuse on the internet.
The statute also says that the Court should
take into account the nature and circumstances of
the offense and fashion a sentence that reflects the
seriousness of the offense. Here the count of
conviction isn’t even related to all of the child
pornography which would have come with a fairly
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serious sentence all unto itself. Here the defendant
undertook to move from being a passive viewer of
extreme child abuse but actually undertook to act to
become such an abuser, even to the point of
traveling a great distance, being willing to pay a
substantial amount of money in order to, himself,
abuse a child in a most egregious way. Taking all of
that into account is in some senses difficult to do.
Congress, in its wisdom, has said that under
this particular statute that the least serious offense
warrants a 120-month term of incarceration, and
defense counsel has advocated that that is what
should be imposed here as though these facts
present the least egregious form of a violation under
this statute. However, this does not present the least
egregious form of a violation under this statute,
particularly when I take into account the history and
characteristics of the defendant and his use of this
extensive collection of child pornography, and his
extensive connection with similarly minded
individuals on the internet, even with those who
actually harm children, to encourage the harm of
small children in such an egregious way. This is not
the least serious form of a violation under this statute.
Defense counsel also has argued that it was
mitigating in some respect that the defendant
understood himself to be communicating with an
adult rather than the child – rather than actually
enticing the child. I do not see that as a mitigating
factor. In fact, if anything, it is an aggravating factor
because that is consciously participating in what the
defendant understood to be the trafficking of a young
child for sexual purposes. That is something that I
see as a serious violation of the statute.
In addition to looking to the seriousness of the
offense and the nature and circumstances of the
offense, and even wanting to deter criminal conduct,
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I look to the psychological report that has been filed
with the Court. That psychological report reflects that
the defendant is one who certainly has a higher risk
of re-offending than other defendants I have seen
who have pleaded guilty under this statute, and I find
that very troubling.
The psychological report also reflects that the
defendant exhibits no empathy for children. That’s
very troubling. Because one of the factors for
sentencing under the statute is that the Court should
fashion a sentence that protects the public from
further crimes. That psychological report, in many
respects, says that the longer the defendant is
incarcerated the less likely he is to re-offend, but the
shorter term that he is incarcerated the more likely he
is to re-offend. That’s very concerning, particularly in
light of the argument that the defendant should
receive the statutory mandatory minimum sentence.
Quite candidly, under the facts of this case, I
would have imposed a term of incarceration longer
than the one that I imposed but for the government’s
motion for a downward departure. And I would have
done that largely because of the seriousness of the
offense as well as to protect the public from further
acts on the part of the defendant. However, the
defendant did provide the assistance to the
government that he did, and I believe the defendant
should be entitled to some reduction for that. I have
included that in this overall sentencing calculus
regarding the term of incarceration.
[CR Doc. 50 at 30-33]. Judgment on Petitioner’s conviction was entered on
August 26, 2019.

[CR Doc. 40: Judgment].

Petitioner appealed his

sentence, alleging a single claim of ineffective assistance of counsel. [CR

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Doc. 42; see CR Doc. 51]. The Court of Appeals granted the Government’s
motion to dismiss Petitioner’s appeal as barred the appellate waiver in the
plea agreement. [CR Doc. 51].
On May 11, 2020, Petitioner timely filed the instant Section 2255
Motion to Vacate. [CV Doc. 1]. In his motion, Petitioner argues that he
received ineffective assistance of counsel where his attorney assured him
that most of the report on Petitioner’s Psychological Evaluation would be
redacted when submitted to the Court, “leaving only the statistical
information that counsel desired to use for the sentencing hearing.” [CV Doc.
1-1 at 1]. Petitioner claims that he realized the “very real detrimental effect
of such a report being submitted” and he “was severely hesitant to admit it.”
[Id.]. Petitioner notes that the report “greatly exaggerated [his] level of
recidivism and possibly took literally dreams [he] had involving a minor more
than five years younger than [Petitioner] when [he] was twelve.” Petitioner
states that the “report did not exactly differentiate fantasy from reality leaving
the choice to the reader.”3 [Id.]. Petitioner also argues that his attorney failed

Of note, the Psychological Evaluation report provides that Petitioner admitted that “at
around age 12 he engaged in sexual touching with [another minor], who was about age
six.” Petitioner stated that the touching was his idea, but the minor was “willing.”
Petitioner reported that this occurred multiple times over a two-year period. [CR Doc. 351 at 4]. Dr. King later stated in the report that, “it is unclear if this is actually true. It is not
uncommon for sex offenders to report similar fantasies as if they actually happened.” [Id.
at 11].
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to timely “share legal strategy and documents with [his] acting advisors,”
including his mother, who is a retired Chicago Police Officer, and his cousin,
who was then a prosecutor for the City of Chicago, as instructed. Rather,
counsel did not share the report until a few days before sentencing after it
had already been submitted to the Court. [Id.]. Petitioner contends that “the
Court found the evaluation as the primary basis to impose the maximum
sentence proposed by the guideline range.” [Id.]. Other than this bare claim,
Petitioner does not state how he was prejudiced because of these alleged
errors by counsel or show how his sentence would have been lower without
the report. [See id. at 1-2].
For relief, Petitioner seeks appointment of new counsel and
resentencing. [Id. at 13].
II.

STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides

that courts are to promptly examine motions to vacate, along with “any
attached exhibits and the record of prior proceedings” to determine whether
the petitioner is entitled to any relief on the claims set forth therein. After
examining the record in this matter, the Court finds that Petitioner’s Motion
to Vacate can be resolved without an evidentiary hearing based on the
record and governing case law. See Raines v. United States, 423 F.2d 526,
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529 (4th Cir. 1970).
III.

DISCUSSION
The Sixth Amendment to the U.S. Constitution guarantees that in all

criminal prosecutions, the accused has the right to the assistance of counsel
for his defense. See U.S. Const. Amend. VI. To show ineffective assistance
of counsel, Petitioner must first establish deficient performance by counsel
and, second, that the deficient performance prejudiced him. See Strickland
v. Washington, 466 U.S. 668, 687-88 (1984). The deficiency prong turns on
whether “counsel’s representation fell below an objective standard of
reasonableness ... under prevailing professional norms.” Id. at 688. A
reviewing court “must apply a ‘strong presumption’ that counsel’s
representation was within the ‘wide range’ of reasonable professional
assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting
Strickland, 466 U.S. at 689). The Strickland standard is difficult to satisfy in
that the “Sixth Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.” See Yarborough v. Gentry,
540 U.S. 1, 8 (2003).

The prejudice prong inquires whether counsel’s

deficiency affected the judgment. See Strickland, 466 U.S. at 691. A
petitioner must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
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A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694.

In considering the prejudice prong of the

analysis, a court cannot grant relief solely because the outcome would have
been different absent counsel’s deficient performance, but rather, it “can only
grant relief under . . . Strickland if the ‘result of the proceeding was
fundamentally unfair or unreliable.’” Sexton v. French, 163 F.3d 874, 882
(4th Cir. 1998) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).
Under these circumstances, the petitioner “bears the burden of affirmatively
proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If
the petitioner fails to meet this burden, a reviewing court need not even
consider the performance prong. Strickland, 466 U.S. at 670.
When the ineffective assistance claim relates to a sentencing issue,
the petitioner must demonstrate a “‘reasonable probability’ that his sentence
would have been more lenient” but for counsel’s error. Royal v. Taylor, 188
F.3d 239, 249 (4th Cir. 1999) (quoting Strickland, 466 U.S. at 694). If the
petitioner fails to meet this burden, the “reviewing court need not even
consider the performance prong.” United States v. Rhynes, 196 F.3d 207,
232 (4th Cir. 1999), opinion vacated on other grounds, 218 F.3d 310 (4th Cir.
2000).

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Here, in his sole claim for relief, Petitioner’s argues that his attorney
should not have submitted the unredacted Psychological Evaluation report
to the Court for sentencing and that his attorney should have provided the
report to Petitioner’s “acting advisors” earlier. Petitioner has plainly failed to
support a claim of ineffective assistance.
In reaching its sentencing determination, the Court clearly considered
many facts and circumstances of Petitioner’s case. While the Court certainly
reviewed the report and considered its findings, the Court also considered
and based its sentence on many other relevant facts and factors. The report
was one piece of a many-part puzzle and not the “primary basis” for the
sentence, as claimed by Petitioner. The Court discussed several factors it
deemed significant in fashioning Petitioner’s sentence, including Petitioner’s
history and characteristics, including his prodigious collection of child
pornography and his interest and pleasure in extreme forms of child abuse
and viewing such abuse on the internet; Petitioner’s transition from being a
passive viewer of extreme child abuse to actually undertaking to participate
in such abuse, even traveling a great distance and agreeing to pay a
substantial amount of money to perpetrate it; and the egregiousness of
Petitioner’s case relative to the least serious form of a violation under the
statute, which may warrant a 120-month sentence, concluding that
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Petitioner’s conduct and characteristics represented a serious violation of the
statute. Finally, the Court looked to the Psychological Evaluation report and
discussed the risk of recidivism relative to the length of a sentence. Of note,
the Court did not mention Petitioner’s report of either having engaged in
sexual touching with a young boy when Petitioner was 12 years old or having
dreamt about such an encounter.

Moreover, without the Government’s

downward departure motion, the Court would have imposed an even longer
term of incarceration “because of the seriousness of the offense as well as
to protect the public from further acts” by Petitioner. [CR Doc. 50 at 33]. As
such, even without the Psychological Evaluation report, the Court’s analysis
at sentencing easily supports the imposition of a 168-month sentence and
Petitioner has made no showing that his sentence would have been less
without the report.
In short, Petitioner has failed to demonstrate a “‘reasonable probability’
that his sentence would have been more lenient” but for his attorney’s
alleged errors. Royal, 188 F.3d at 249. Absent a showing of prejudice, the
Court need not consider the performance prong. Rhynes, 196 F.3d at 232.
The Court will, therefore, deny and dismiss Petitioner’s § 2255 motion to
vacate.

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IV.

CONCLUSION
For the foregoing reasons, Petitioner’s Motion to Vacate is denied and

dismissed.
The Court further finds that Petitioner has not made a substantial
showing of a denial of a constitutional right. See generally 28 U.S.C. §
2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in
order to satisfy § 2253(c), a “petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85
(2000)). Petitioner has failed to demonstrate both that this Court’s dispositive
procedural rulings are debatable, and that the Motion to Vacate states a
debatable claim of the denial of a constitutional right. Slack v. McDaniel, 529
U.S. at 484-85. As a result, the Court declines to issue a certificate of
appealability. See Rule 11(a), Rules Governing Section 2255 Proceedings
for the United States District Courts, 28 U.S.C. § 2255.
ORDER
IT IS, THEREFORE, ORDERED that Petitioner’s Motion to Vacate, Set
Aside or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1] is DENIED and
DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 and Section 2255 Cases, this Court declines to
issue a certificate of appealability.
IT IS SO ORDERED.
Signed: June 7, 2021

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