Warren v. USA

Filing 8

MEMORANDUM OPINION: Petitioner has failed to establish any basis upon which § 2255 relief could be granted, and his § 2255 motion [Case No. 4:15-cr-10, Crim. Doc. 39; Case No. 4:17-cv-60, Doc. 1] will be DENIED. A certificate of appealability from the denial of his § 2255 motion will be DENIED. A separate judgment will enter. Signed by District Judge Harry S Mattice, Jr on 9/21/2020. (AWS) Mailed to Kevin Warren.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at WINCHESTER
KEVIN JOEL WARREN,

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Petitioner
v.
UNITED STATES,
Respondent

Case Nos. 4:15-cr-10; 4:17-cv-60
Judge Mattice
Magistrate Judge Lee

MEMORANDUM OPINION
Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 filed by federal inmate Kevin Warren [Case No. 4:15-cr-10, Crim. Doc. 39;
Case No. 4:17-cv-60, Doc. 1]. As ordered, the Government has filed a response to the
Motion. [Doc. 3]. Warren sought and was granted an extension of time in which to file a
reply [Doc. 5], but did not do so. Having considered the pleadings and the record, along
with the relevant law, the Court finds there is no need for an evidentiary hearing 1 and
Warren’s § 2255 motion will be DENIED.
I.

BACKGROUND FACTS AND PROCEDURAL HISTORY
On July 6, 2015, Petitioner Kevin Joel Warren was charged with knowing

possession of child pornography. [Crim. Doc. 1]. Pursuant to a written plea agreement
[Crim. Doc. 6], Petitioner pleaded guilty to possession of child pornography in violation
of 18 U.S.C. § 2252(a)(4)(B). The plea agreement recited that the maximum term of

An evidentiary hearing is required on a § 2255 motion unless the motion, files, and record conclusively
show that the prisoner is not entitled to relief. See 28 U.S.C. § 2255(b). It is the prisoner’s ultimate burden,
however, to sustain his claims by a preponderance of the evidence. See Pough v. United States, 442 F.3d
959, 964 (6th Cir. 2006). Accordingly, where “the record conclusively shows that the petitioner is entitled
to no relief,” a hearing is not required. Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)
(citation omitted).

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imprisonment was 10 years, followed by a term of supervised release of at least 5 years
and up to life. [Id. at 1].
In support of his plea, Petitioner stipulated to the following:
•

In June 2014, an agent of the Tennessee Bureau of Investigation identified a
computer using the ARES person-to-person file sharing network at a specific IP
address that had 105 files suspected of containing child pornography. [Id. at 2].

•

The agent downloaded child pornography that was stored and offered through
file-to-file sharing from the same IP address.

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The IP address belonged to a specific address in Shelbyville, Tennessee.

•

On July 17, 2014, TBI agents executed a search warrant at the address associated
with the IP address, which was Warren’s residence, and discovered numerous
images of child pornography on Warren’s computer.

•

Warren admitted to downloading images of child pornography.

[Crim. Doc. 6 at 2].
In the plea agreement, Petitioner agreed not to file any motions pursuant to 28
U.S.C. § 2255 or otherwise collaterally attack his conviction or sentence, with two
exceptions: he retained the right to file a § 2255 motion as to ineffective assistance of
counsel and prosecutorial misconduct. [Id. at 7]. Similarly, Petitioner waived his right to
appeal, except as to a sentence imposed above the sentencing guideline range determined
by the Court or above any mandatory minimum sentence deemed applicable by the Court,
whichever is greater. [Id.].
The Court’s Probation Office prepared a Presentence Investigation Report which,
as revised, calculated Petitioner’s base offense level at 18. [Crim. Doc. 18 at ¶ 12]. The PSR
calculation added 15 points for special offense characteristics, including two points
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because “[t]he defendant used a peer to peer file sharing program which constitutes
distribution” pursuant to U.S.S.G. §2G2.2(b)(3)(F). [Id. at ¶ 14]; see United States
Sentencing Commission, Guidelines Manual, U.S.S.G. §2G2.2(b)(3)(F) (Nov. 2015).
Petitioner’s adjusted offense level was 33, less three points for acceptance of
responsibility. [Id. at ¶¶ 23-25]. Based on an offense level of 30 and a category two
criminal history, Petitioner’s guideline imprisonment range was 108 to 135 months. [Id.
at ¶ 46]. Because the statutory maximum sentence is 120 months, his effective guideline
range was 108 to 120 months. [Id.]. Petitioner’s counsel did not object to the PSR, but
moved for a sentencing variance below the guideline range. [Crim. Doc. 31]. The motion
was based on Petitioner’s seizure disorder, related medical and psychological difficulties,
and their relationship to the onset of criminal behavior. The Court adopted the PSR
without change [Crim. Doc. 35] and imposed a sentence of 108 months’ imprisonment,
followed by ten years of supervised release. [Crim. Doc. 34].
Petitioner did not appeal. On October 10, 2017, he filed a timely Motion to Vacate. 2
Petitioner raises four grounds for appeal, each based on his contention that he should not
have received a two-point sentencing enhancement for distribution of child pornography
under U.S.S.G. § 2G2.2(b)(3)F). Petitioner argues (1) his counsel was ineffective for failing
to challenge the enhancement, (2) the Court improperly applied the sentencing
guidelines, (3) the United States Attorney’s Office is responsible for the enhancement,

2 The Motion was docketed on October 16, 2017, but signed on October 10, 2017. See Sanchez-Castellano v.
United States, 358 F.3d 424, 427 (6th Cir. 2004) (§ 2255 motion deemed filed when presented to prison
authorities). Petitioner was sentenced on September 26, 2016, and judgment entered on September 28,
2016. “[W]hen a federal criminal defendant does not appeal to the court of appeals, the judgment becomes
final upon the expiration of the period in which the defendant could have appealed to the court of appeals,
even when no notice of appeal is filed.” Id.; see Fed. R. App. P. 4(b)(1)(A) (providing fourteen days for direct
appeal).

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constituting prosecutorial misconduct, and (4) a subsequent amendment to the
guidelines makes Petitioner eligible for a sentence reduction.
II.

LEGAL STANDARDS
After a defendant has been convicted and exhausted his appeal rights, a court may

presume that “he stands fairly and finally convicted.” United States v. Frady, 456 U.S.
152, 164 (1982). A court may grant relief under 28 U.S.C. § 2255, but the statute “does not
encompass all claimed errors in conviction and sentencing.” United States v. Addonizio,
442 U.S. 178, 185 (1979). Rather, collateral attack limits a movant’s allegations to those
of constitutional or jurisdictional magnitude, or those containing factual or legal errors
“so fundamental as to render the entire proceeding invalid.” Short v. United States, 471
F.3d 686, 691 (6th Cir. 2006) (citation omitted); see also 28 U.S.C. § 2255(a).
III.

ANALYSIS
A.

Ineffective Assistance of Counsel

Petitioner’s first ground for relief is ineffective assistance of counsel. His
supporting facts are as follows:
Counsel failed to object to the addition/ inclusion of an enhancement for
distribution of child pornography (USSG § 2G2.2(b)(3)(F) when Petitioner
was not charged with distribution, nor was distribution ever alleged in the
relevant facts/ conduct.
[Doc. 1 at 4].
To establish that he has received ineffective assistance of counsel, a convicted
defendant must satisfy the two-pronged test set forth by the Supreme Court of the United
States in Strickland v. Washington, 466 U.S. 668 (1984). Strickland holds that a
petitioner cannot establish his counsel was ineffective unless he demonstrates that (1)
counsel’s performance was deficient, such that counsel did not render reasonably effective

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assistance as measured by prevailing professional norms; and (2) he was prejudiced by
the deficiency, i.e., there is a reasonable probability that but for counsel’s alleged acts or
omissions, the results of the proceedings would have been different. Id. at 687-88, 694;
Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013) (applying Strickland test to
§ 2255 claims). The failure to satisfy either prong of Strickland requires dismissal of the
claim and relieves the reviewing court of a duty to consider the other prong. Nichols v.
United States, 563 F.3d 240, 249 (6th Cir. 2009); see also Strickland, 466 U.S. at 697.
Finally, Strickland “requires the defendant to identify specific acts or omissions by
counsel that were ‘outside the wide range of professionally competent assistance.’” Carter
v. Bogan, 900 F.3d 754 (6th Cir. 2018) (quoting Strickland, 466 U.S. at 690).
Petitioner has not made the showing required by Strickland. He claims his counsel
was ineffective for failing to object to the enhancement for distribution of child
pornography “when Petitioner was not charged with distribution, nor was distribution
ever alleged in the relevant facts/ conduct.” [Doc. 1 at 4]. To clarify, distribution was
alleged in the PSR. The PSR indicates that the TBI began investigating “ARES peer to peer
file sharing program at a specific IP address.” [Doc. 28 at ¶ 5]. According to the PSR,
Petitioner told TBI agents he thought he had turned off the file sharing ability on his
computer and admitted that he had memory issues from a seizure disorder. [Id. at ¶ 6].
As the United States points out, at the time of Defendant’s conviction, use of a peer
to peer file sharing program was sufficient to support an enhancement for distribution
under U.S.S.G. § 2G2.2(b)(3)(F). United States v. Abbring, 788 F.3d 565 (6th Cir. 2015).
The defendant in Abbring was charged with receiving child pornography. Like Petitioner,
he downloaded child pornography using the peer-to-peer file sharing program Ares. Id.
at *566. At sentencing, the district court concluded he had distributed child pornography
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by using Ares. Id. This triggered a two-level enhancement under § 2G2.2(b)(3)(F). On
appeal, the defendant argued the court had misapplied the Guidelines because his
conduct did not rise to the level of distribution. Id. at 567.
The United States Court of Appeals for the Sixth Circuit rejected the defendant’s
contention that his use of Ares was insufficient to support the distribution enhancement.
The court explained: “Time after time, we have applied the catchall two-level
enhancement to distribution through such file-sharing software.” Id. The defendant in
Abbring had “tried to prevent” file sharing through Ares by interrupting active
downloads, since he could not disable the automatic file-sharing component of the
program during downloading. Id. “As for Abbring’s intent, it makes no difference to
whether he planned to engage in ‘distribution’ under the guidelines; all that matters is the
knowing sharing of the files.” Id. at 567-68.
Petitioner does not challenge any of the factual allegations in the PSR. He does not
reiterate his statement to law enforcement that he thought the file-sharing component of
Ares was turned off. His only contention is that he was not charged with distribution and
distribution was not alleged. But distribution was alleged in the PSR, and he
acknowledged in his plea agreement that his sentence would be determined “by the Court
after it receives the presentence investigation report” and would be “based on the entire
scope of the defendant’s criminal conduct, the defendant’s criminal history, and pursuant
to other factors and guidelines….” [Doc. 6 at 3]. At the time of his sentence, Sixth Circuit
precedent clearly permitted a two-level enhancement for distribution through a file
sharing program. Petitioner is simply mistaken that his conduct did not satisfy the
standard at the time. Accordingly, Petitioner’s counsel was not ineffective for failing to
raise this argument. See Sutton v Bell, 645 F.3d 752, 755 (6th Cir. 2011) (“Given the
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prejudice requirement, ‘counsel cannot be ineffective for failure to raise an issue that lacks
merit.’” (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)).
B.

Application of Sentencing Guidelines

Warren’s challenge to the Court’s application of a distribution enhancement fails
because “a defendant cannot use a § 2255 motion to vindicate non-constitutional
challenges to advisory guideline calculations.” Snider v. United States, 908 F.3d 183, 191
(6th Cir. 2018); Bullard v. United States, 937 F.3d 654, 660 (6th Cir. 2019) (“A
misapplication-of-an-advisory-guidelines-range claim is not cognizable under § 2255.”
(cleaned up)). Petitioner contends he received a two-point enhancement for distribution
of child pornography “when no distribution was ever alleged, much less proven.” [Doc. 1
at 5]. As explained above, the enhancement was justified under the law of the Sixth Circuit
at the time of Petitioner’s sentencing. Moreover, if the two-point enhancement were
removed, Petitioner’s sentence would still be within the guideline range: with an offense
level of 28 and a category two criminal history, his guideline range would have been 87108 months. See U.S.S.G. Sentencing Table (Nov. 2015).
Section 2255 authorizes post-conviction relief only when a sentence “was imposed
in violation of the Constitution or laws of the United States, or… the court was without
jurisdiction to impose such sentence, or… the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack….” 28 U.S.C. § 2255(a). As
the Sixth Circuit has explained, Ҥ 2255 claims that do not assert a constitutional or
jurisdictional error are generally cognizable only if they involved a ‘fundamental defect
which inherently results in a complete miscarriage of justice.’” Snider, 908 F.3d at 191
(quoting Davis v. United States, 417 U.S. 333, 346 (1974)). Petitioner’s sentence was
below the statutory maximum and within the range recommended by the United States
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Sentencing Guidelines, with or without the two-point enhancement. He does not allege
he is actually innocent of the offense of conviction. Even were the enhancement improper,
it cannot plausibly be characterized as a fundamental defect. Id. at 191.
In addition, Petitioner waived the right to collaterally attack his conviction and
sentence except as to prosecutorial misconduct or ineffective assistance of counsel. The
United States Court of Appeals for the Sixth Circuit has consistently held that plea
agreement waivers of § 2255 rights are enforceable. See Cox v. United States, 695 F. App’x
851, 853 (6th Cir. 2017); Davila v. United States, 258 F.3d 448, 450 (6th Cir. 2001). “[I]t
is well settled that a defendant in a criminal case may waive ‘any right, even a
constitutional right,’ by means of a plea agreement.” Cox, 695 F. App’x at 853 (quoting
United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001)) (internal quotation marks
omitted). To the extent Petitioner raises this issue separately from his ineffective
assistance of counsel claim, he has waived it. Finally, Petitioner’s claim is procedurally
defaulted because he failed to raise it on appeal and has not shown cause or prejudice to
excuse the default.
C.

Prosecutorial Misconduct

Petitioner next argues that the “U.S. Attorney’s Office allowed (if not caused)
enhancement for Distribution of Child Pornography (USSG § 2G2.2(b)(3)(F)) with no
grounds for such.” [Doc. 1 at 6]. This is the entirety of Petitioner’s argument in this regard.
Because it is procedurally defaulted and substantively meritless, this challenge also fails.
A motion to vacate is not a substitute for a direct appeal. Regalado v. United States,
334 F.3d 520, 528 (6th Cir. 2003). Claims that could have been raised on direct appeal
but were not will not be entertained via a motion under § 2255 unless the petitioner
shows: (1) cause and actual prejudice to excuse his failure to raise the claims previously;
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or (2) that he is “actually innocent” of the crime. Ray v. United States, 721 F.3d 758 (6th
Cir. 2013). Petitioner does not attempt to make either showing, and as the Court has
explained, his ineffective assistance of counsel claim is unavailing. His claim is therefore
procedurally defaulted.
Petitioner’s prosecutorial misconduct claim also fails because it is no more than a
bald assertion without any allegation of wrongdoing. Petitioner bears the burden of
establishing an error of constitutional magnitude which had a substantial or injurious
effect on the criminal proceedings. Reed v. Farley, 512 U.S. 339, 353 (1994). And even a
pro se prisoner seeking § 2255 relief must state his claims with some degree of specificity.
Here, Petitioner claims the United States Attorney’s Office “caused” a distribution
enhancement under § 2G2.2(b)(3)(F), but does not explain this accusation or provide any
supporting law or facts. In fact, the enhancement was calculated by the Court’s Probation
Office in accordance with the law as it existed at the time of sentencing. It is not at all clear
what the United States Attorney’s Office had to do with the enhancement or what
misconduct they are supposed to have committed. Petitioner’s claim is wholly without
merit.
D.

Subsequent Guidelines Amendment

Finally, Petitioner argues that a subsequent amendment to the United States
Sentencing Guidelines makes him eligible for a two-point reduction. After Petitioner was
convicted, the Sentencing Commission issued Amendment 801 to clarify the mental state
required for the distribution enhancement of U.S.S.G. § 2G2.2(b)(3). Prior to the
amendment, there had been a circuit split regarding whether use of peer-to-peer file
sharing programs was sufficient to constitute distribution. Noting the circuit split, the
Commission sided with courts who had held that the two-level distribution enhancement
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requires a showing that the defendant knew of the file-sharing properties of the program.
United States Sentencing Commission, Guidelines Manual, Supplement to Appendix C,
Amendment 801, Reason for Amendment.
First, Petitioner waived his right to collaterally attack his sentence in his written
plea agreement. He has not presented any reason why this waiver should not be enforced.
He does not attack the validity of his conviction and sentence, but simply argues his
sentence should be reduced due to a subsequent change to the Sentencing Guidelines.
His challenge also fails because it raises neither constitutional nor jurisdictional
error. Though a subsequent amendment to the Sentencing Guidelines may provide a basis
for relief on collateral review, 3 this is not such an amendment. “[C]larifying amendments
may be applied retroactively,” while substantive amendments to the Guidelines may not.
United States v. Geerken, 506 F.3d 461, 465 (6th Cir. 2007)). “An amendment is clarifying
if it ‘changes nothing concerning the legal effect of the guidelines, but merely clarifies
what the Commission deems the guidelines to have already meant.’” Id. (quoting United
States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995)). To determine whether an
amendment is clarifying or substantive, courts look to (1) how the Sentencing
Commission characterized the amendment; (2) whether the amendment changes the

“Nevertheless, if an amendment clarifies a sentencing guideline, rather than substantively changes a
guideline, a sentencing court can reduce the sentence by applying the amendment retroactively, even if it is
not listed in U.S.S.G. § 1B1.10(c). But again, in such a case the prisoner files a § 2255 motion with the
sentencing court.” Rivera v. Warden, FCI, Elkton, 27 F. App’x 511, *4 (6th Cir. 2001); see also Diaz v. United
States, 2017 WL 6569901, *1 (6th Cir. June 23, 2017) (“Where, as here, a defendant did not challenge his
sentence on direct appeal, a clarifying amendment may provide the basis for § 2255 relief only if it brings
to light a ‘complete miscarriage of justice.’” (quoting Grant v. United States, 72 F.3d 503, 506 (6th Cir.
1996)); United States v. Fowler, 3:10-cr-145, 2018 WL 834615, *2 n.1 (E.D. Tenn. Feb. 12, 2018) (“And,
contrary to the government’s position, the Sixth Circuit has held that a defendant may file a § 2255 motion
to vacate or correct her sentence in light of ‘an amendment [that] clarifies a sentencing guideline, … even if
it is not listed in U.S.S.G. § 1B1.10(d).” (quoting Rivera, 27 F. App’x at 515)).
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language of the guideline or only the commentary; and (3) whether the amendment
resolves an ambiguity in the wording of the guideline. Id.
Application of these factors indicates the amendment is substantive. Amendment
801 altered the text of the Guidelines as well as the related commentary. It was explicitly
designed to resolve a circuit conflict regarding, inter alia, the application of the
distribution enhancement to cases involving peer-to-peer file sharing. The amendment
also had the significant legal impact of adding a mental state requirement for the
distribution enhancement. Though the Sixth Circuit does not appear to have addressed
this issue yet, the United States Court of Appeals for the Tenth Circuit has, and it
determined the amendment is not retroactive on collateral review. United States v.
Mullins, 748 F. App’x 795, 800-1 (10th Cir. 2018) (affirming district court denial of § 2255
motion to vacate). The Tenth Circuit found that Amendment 801 “does not retroactively
apply because the amendment effected a substantive change in the legal landscape, rather
than a mere clarification.” Though the Sentencing Commission indicated it was clarifying
the requisite mental state for distribution, it also indicated it was “‘adopt[ing] an approach
not previously specified in the enhancement.” Id. Because Amendment 801 was
substantive, it cannot be applied retroactively on a motion to vacate. And even were the
distribution enhancement removed, Petitioner’s sentence would still fall within the
applicable guideline range. He has therefore failed to allege a fundamental defect or
constitutional error and is not entitled to relief.
Finally, Petitioner’s fourth ground for relief arguably seeks a sentence reduction
under 18 U.S.C. § 3582 rather than § 2255. “[Section] 2255 is the proper mechanism for
challenging the defendant’s original sentence, while § 3582 is the proper mechanism for
seeking a sentence reduction based on subsequent guideline amendments.” Fowler, 2018
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WL 834615 at *2 (E.D. Tenn. Feb. 12, 2018) (citing United States v. Carter, 500 F.3d 486,
491-92 (6th Cir. 2007)). Though the majority of Petitioner’s Motion focuses on his
original sentence, his fourth ground relates to a “post-sentencing guideline amendment”
and therefore “corresponds in substance to § 3582.” Id. Section 3582(c)(2) only permits
modification of an already-imposed sentence based on a subsequently lowered sentencing
range “if such reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C.A. § 3582(c)(2). And the Sixth Circuit has held that
only those amendments listed in U.S.S.G. § 1b1.10(d) apply retroactively for resentencing
purposes. See United States v. Dullen, 15 F.3d 68, 71 (6th Cir. 1994) (“U.S.S.G.
§ 1B1.10(d)… exists precisely for the purpose of identifying those amendments that are
intended to be effective retroactively.”). Accordingly, to the extent Petitioner seeks a
reduction in his sentence pursuant to 18 U.S.C.A. § 3582, his motion will be denied.
IV.

CERTIFICATE OF APPEALABILITY
When considering a § 2255 motion, this Court must “issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” Rule 11 of the Rules
Governing Section 2255 Proceedings for the United States District Courts. Petitioner
must obtain a COA before he may appeal the denial of his § 2255 motion. 28 U.S.C.
§ 2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For cases rejected on their
merits, a movant “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong” to warrant a COA. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim that has been rejected
on procedural grounds, a movant must demonstrate “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right
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and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Id. Based on the Slack criteria, the Court finds that a COA should
not issue in this cause.
V.

CONCLUSION
For the reasons stated herein, Petitioner has failed to establish any basis upon

which § 2255 relief could be granted, and his § 2255 motion [Case No. 4:15-cr-10, Crim.
Doc. 39; Case No. 4:17-cv-60, Doc. 1] will be DENIED. A certificate of appealability from
the denial of his § 2255 motion will be DENIED. A separate judgment will enter.
SO ORDERED this 21st day of September, 2020.

/s/ Harry S. Mattice, Jr.
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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