Freed v. USA

Filing 36

MEMORANDUM OPINION AND ORDER: On 2/2/2019, United States Magistrate Judge Irma Ramirez entered the Findings, Conclusions, and Recommendation of the United States Magistrate Judge ("Report") (Doc. 31 ), recommending that the court deny wit h prejudice Movant Nicholas Todd Freed's ("Movant") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") (Doc. 2 ), filed 6/23/2017. The court det ermines that the findings and conclusions of the Magistrate Judge are correct, accepts them, as supplemented by this opinion, as of those of the court, and denies with prejudice Movant's § 2255 Motion (Doc. 2 ). (Ordered by Judge Sam A. Lindsay on 1/17/2020) (ctf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NICHOLAS TODD FREED,
ID # 47726-177,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

§
§
§
§
§
§
§
§
§
§

Civil Action No. 3:17-CV-1666-L
(Criminal Action No. 3:14-CR-75-L)

MEMORANDUM OPINION AND ORDER
On February 2, 2019, United States Magistrate Judge Irma Ramirez entered the Findings,
Conclusions, and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 31),
recommending that the court deny with prejudice Movant Nicholas Todd Freed’s (“Movant”)
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (“§ 2255 Motion”) (Doc. 2), filed June 23, 2017. For the reasons that follow, the court
determines that the findings and conclusions of the Magistrate Judge are correct, accepts them,
as supplemented by this opinion, as of those of the court, and denies with prejudice Movant’s
§ 2255 Motion (Doc. 2).
I.

Factual and Procedural Background
On October 29, 2014, Movant was charged in the Superseding Information with three

counts: (1) Attempted Possession with Intent to Distribute a Controlled Substance (“Count 1”) in
violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) Possession of a Document-Making Implement
(“Count 2”) in violation of 18 U.S.C. § 1028(a)(5); and (3) Possession of Obscene Visual
Representations of the Sexual Abuse of Children (“Count 3”) in violation of 18 U.S.C. §
1466A(b)(1). Superseding Information, United States v. Freed, No. 3:14-cr-75-L (N.D. Tex. Oct.

Memorandum Opinion and Order – Page 1

29, 2014), Doc. 27. On November 25, 2014, Movant pled guilty to all charges. On June 22, 2015,
he was sentenced to 97 months of confinement. He also received two years of supervised release
for Counts 1 and 2, and three years of supervised release for Count 3 with a special condition that
he comply with the Sex Offender Registration and Notification Act (“SORNA”) by registering as
a sex offender. Judgment, Id. at Doc. 59.
On appeal, the appointed Federal Public Defender filed a brief under Anders v. California,
386 U.S. 736 (1967) (“Anders Brief”), stating there were no nonfrivolous issues for appellate
review. Movant filed a pro se brief in response challenging the two-level enhancement imposed
on his sentence for Count 3 under § 2G2.2(b)(6) of the 2014 United States Sentencing Guidelines
(“USSG” or “Guidelines”), and the special conditions imposed on his supervised release, including
the requirement that he register as a sex offender. The Fifth Circuit agreed with the assessment in
the Anders Brief and held that Movant’s appeal presented “no nonfrivolous issue for appellate
review.” United States v. Freed, 667 F. App’x 118 (5th Cir. 2016). Accordingly, the Fifth Circuit
dismissed the appeal.
On June 23, 2017, Movant filed his § 2255 Motion asserting that his counsel, Christopher
Woodward, was ineffective because he failed to:
(a) investigate [and] assist in the preparation and presentation of objections, and
cite case law regarding the application of the two-level enhancement under USSG
§ 2G2.2(b)(6);
(b) object to the imposition of special conditions of supervised release, including
the registration requirement of [SORNA];
(c) investigate and present evidence of mitigating circumstances, prepare a
sentencing memorandum, and argue for a non-guideline sentence.
Report 5; see also Doc. 2 at 4-6; Doc. 6 at 6, 14, 22. On December 1, 2017, the Government filed
its response. Doc. 21.

Memorandum Opinion and Order – Page 2

On February 12, 2019, Magistrate Judge Ramirez entered the Report (Doc. 31),
recommending that the court deny with prejudice Movant’s § 2255 Motion. On March 1, 2019,
Movant filed his Objections. Doc. 34. Movant asserts that the Magistrate Judge (1) incorrectly
determined that the claims asserted in his § 2255 Motion were deemed frivolous by the Fifth
Circuit based on his direct appeal; (2) misinterpreted the application of USSG § 2G2.2(b)(6); and
(3) failed to recognize the specific evidence and testimony that he asserts his counsel should have
presented at sentencing. Based on these same reasons, Movant maintains his assertion that his
counsel was ineffective for (1) his failure to adequately object to the application of § 2G2.2(b)(6)
and the special conditions imposed during sentencing; (2) allowing Movant to stipulate to the use
of a computer; and (3) his failure to file a sentencing memorandum or argue for a non-guideline
sentence. The Government did not file a response.
II.

Discussion
A.

Scope of the Direct Appeal and Fifth Circuit Decision

Movant objects “to the Magistrate Judge’s finding that all issues presented in his § 2255
Motion were found to be frivolous in Movant’s Direct Appeal.” Movant’s Obj. 1. Specifically,
he contends that the grounds for his direct appeal, although “admittedly disheveled, disorganized[,]
and poorly formatted,” did not assert any of the allegations presented in his § 2255 Motion.
Instead, he contends that his claims on direct appeal concerned procedural violations related to the
enforceability of the waiver of appealability in his plea agreement and not “the propriety or fairness
of the sentence.” Id. 3. Thus, according to Movant, the Fifth Circuit merely determined that “the
appeal waiver was valid and found that [he] had made no nonfrivolous arguments against
enforcement of [the] wavier.” Id. Accordingly, he contends that the Fifth Circuit decision has no
bearing on the claims asserted in his § 2255 Motion.

Memorandum Opinion and Order – Page 3

He further attempts to distinguish between the claims asserted in his direct appeal and his
§ 2255 Motion by stating:
Where the direct appeal assigned error to the District Court for not knowing,
following and using this information without prompt or presentation, the § 2255
Motion assigns error to counsel for failing to present the information [regarding the
applicability of § 2G2.2(b)(2) and SORNA] to the [c]ourt or prompt the [c]ourt as
to its importance. The Fifth Circuit never heard any such arguments, nor ruled any
such arguments to be frivolous, nor can there be any finding as frivolous of
arguments that were never entered []or claims never made.
Movant’s Obj. 4.
Upon review of the record, the court determines that Movant’s interpretation is misguided,
as he ignores the full assessment presented in the Anders Brief. In the Anders Brief, the Federal
Public Defender asserted that Movant’s waiver of appeal in his plea agreement bars the appeal of
his conviction and that “[t]he sentence was neither procedurally or substantively unreasonable.” 1
Anders Br. 2, United States v. Freed, No. 15-10637 (5th Cir. Nov. 5, 2015). It also discussed each
of the exceptions 2 to the waiver of appeal and determined that none of them applied to Movant’s
conviction. It also asserted that “[t]he district court’s consideration of objections and its review of
the § 3353a factors was exhaustive.” Id. 13.

The Federal Public Defender also asserted that (1)”[t]he district court properly complied with Federal Rule of
Criminal Procedure 11 and the United States Constitution at [Movant’s] rearraignment”; and (2) “[t]he presentence
report and sentencing complied with the Federal Rules of Criminal Procedure.” Anders Br. 2, Freed, No. 15-10637.
These two assertions are not being challenged by Movant.

1

2

Movant’s plea agreement states:
Freed waives his rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742, to appeal from his
convictions and sentences. He further waives his right to contest his convictions and sentences in
any collateral proceeding, including proceedings under 28 U.S.C. § 2241 and 28 U.S.C. § 2255.
Freed, however, reserves the rights (a) to bring a direct appeal of (i) a sentence exceeding the
statutory maximum of punishment, or (ii) an arithmetic error at sentencing, (b) to challenge the
voluntariness of his pleas of guilty or this waiver, and (c) to bring a claim of ineffective assistance
of counsel.

Plea Agreement ¶ 10, United States v. Freed, 3:14-cr-75-L (N.D. Tex. October 29, 2014), Doc. 29.
Memorandum Opinion and Order – Page 4

The Fifth Circuit held: “We have reviewed counsel’s brief and the relevant parts of the
record reflected therein, as well as Freed’s response. We concur with counsel’s assessment that the
appeal presents no nonfrivolous issue for appellate review.” Freed, 667 F. App’x at 118 (emphasis
added). Thus, despite Movant’s assertion that the Fifth Circuit decision only related to procedural
defects in the wavier of appeal, the court can reasonably conclude that the Fifth Circuit ruling, in
concurrence with the Anders Brief, held that no nonfrivolous issues, whether procedural or
substantive, exist. While Movant could not raise his ineffective assistance of counsel claim on
direct appeal, the issues underlying these claims relate directly to the substantive unreasonableness
of his sentence, which the Fifth Circuit noted in concurrence with the Anders Brief, would be
frivolous if raised on appeal. Although Movant’s § 2255 Motion presents these arguments in the
context of an ineffective assistance of counsel argument, the issues are so inextricably intertwined
that the court cannot reasonably view them as separate arguments, especially when Movant’s
arguments focus more on the substantive issues with his sentence rather than his counsel’s alleged
inaction.
The court, therefore, determines that the Magistrate Judge, in accordance with the Fifth
Circuit opinion, correctly concluded that the claims raised in Movant’s § 2255 Motion are
frivolous, and, thus Movant is not entitled to the relief sought. Accordingly, the court overrules
Movant’s objections concerning the applicability of USSG § 2G2.2(b)(6) and the imposition of
special conditions, including the requirement to register as a sex offender, as his objections are
also frivolous. While the court determines that this basis alone is sufficient to overrule all of
Movant’s objections, the court will, nevertheless, address each of them in turn.

Memorandum Opinion and Order – Page 5

B.

Ineffective Assistance of Counsel
1.

Failure to Adequately Object to the Applicability of USSG § 2G2.2(b)(6)

Movant contends that his counsel failed to assist in the preparation and presentation of
objections to the applicability of the enhancement under USSG § 2G2.2(b)(6) and did not present
related case authority and interpretive commentary. He further asserts that he was required to
write, research, and present his own objections, which denied him the right to effective assistance
of counsel and, absent counsel’s ineffectiveness, the outcome would have been different.
Primarily, Movant objects to the Magistrate Judge’s interpretation of the 2014 version of
§ 2G2.2(b)(6) in the Guidelines, which warrants a two-level enhancement “if the offense involved
the use of a computer or an interactive computer service for the possession, transmission, receipt,
or distribution of the material, or for accessing with intent to view the material[.]” He also objects
to the Magistrate Judge’s conclusion that he failed to demonstrate that his use of a computer in
connection to Count 3 was beyond the scope of this provision.
Movant further contends that, based on the amendments and historical notes in the
Guidelines related to § 2G2.2(b)(6), the enhancement does not apply to his sentence. Specifically,
he asserts that he found the visual images at issue on a computer he received from someone else
and that he only used the computer to download the images to a thumb drive to potentially
blackmail the individual at a later date in exchange for leniency. This conduct, according to
Movant, is atypical and does not fit the conduct contemplated by the drafters of § 2G2.2(b)(6) and,
thus, is inapplicable.
Over several pages, Movant breaks down (1) Public Law 104-71, which increased the
offense levels for offenses under 18 U.S.C. §§ 2251, 2252, and 2423(A); (2) Amendment 664 to
the Guidelines, effective November 1, 2004, which in pertinent part deleted § 2G2.4(b)(3) and

Memorandum Opinion and Order – Page 6

amended § 2G2.2 by adding an earlier version of (b)(6); and (3) Amendment 537 to the Guidelines,
which enacted the now-deleted § 2G2.4(b)(3).

He then relies on the provision language,

commentary, and historical notes of these amendments and statute to assert that the enhancement
under § 2G2.2(b)(6), “only applies to offenses in which a computer or interactive computer service
was used to obtain possession of” the material, and, therefore, does not apply to his conduct.
Movant’s Obj. 7 (emphasis added). The court disagrees and cannot reasonably accept the
Movant’s narrow analysis of the Guidelines because his interpretation is flawed.
As the Magistrate Judge addressed in the Report, Amendment 664 did not state that the
enhancement only applied to offenses in which a computer was used to obtain possession of the
material, but it broadened the provision to include such conduct. Movant admitted that he
downloaded the material from a computer onto a thumb drive, but he also insists that the word
“download” does not appear in § 2G2.2(b)6). His ultimate purpose for downloading the material
is of no moment. That he downloaded the illicit material from the computer and stored it on a
thumb drive found hidden in his garage can reasonably be considered possession or receipt of the
material, which falls within the purview of § 2G2.2(b)(6). Despite his reliance on the historical
context of § 2G2.2(b)(6), Movant fails to demonstrate how his conduct falls outside the
contemplation of the provision and, instead, relies on conclusory statements and ill-supported
arguments. Moreover, he does not cite to any applicable authority supporting an interpretation
contrary to that of the court. The court, therefore, determines that Movant’s conduct warranted
the two-level enhancement.
Notably, Movant’s counsel objected to the applicability of § 2G2.2(b)(6) at the sentencing
hearing, which the Movant does not dispute. Thus, the crux of Movant’s ineffective assistance of

Memorandum Opinion and Order – Page 7

counsel argument is not that his counsel failed to object, but that he did not proceed in the exact
manner Movant desired.
To succeed on an ineffective assistance of counsel claim, as the Magistrate Judge properly
stated, Movant must show that (1) counsel’s performance was deficient; and (2) that the deficient
performance caused prejudice to him. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Movant’s assertions, however, are insufficient to prove that counsel’s performance was deficient.
First, the Fifth Circuit has already determined that no nonfrivolous issue for appeal exists, which
the court determines includes any arguments related to the substantive unreasonableness of
Movant’s sentence. Second, as the Magistrate Judge concluded, Movant’s counsel cannot be
deemed ineffective for failure to make arguments that would be frivolous or futile, such as
introducing the commentary and historical notes of the Guidelines in this instance. See United
States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999); see also Koch v. Puckett, 907 F.2d 524, 527
(5th Cir. 1990). Finally, Movant has failed to demonstrate that counsel’s performance “fell below
an objective standard of reasonableness.” Strickland, 466 U.S. at 687. The court, therefore,
determines that Movant has not established that his counsel’s performance was deficient for failing
to investigate, or to assist in the preparation and presentation of objections to the enhancement
under § 2G2.2(b)(6).
Movant also failed to demonstrate that the result of his sentence would have been different
or that he was caused any prejudice by counsel’s alleged failure to introduce the related material.
Id. at 694. Accordingly, the court determines that there is no legal basis for Movant’s arguments
on this issue. The court, therefore, overrules Movant’s objection and accepts the Magistrate
Judge’s conclusion that Movant is not entitled to relief on his claim for counsel’s alleged failure

Memorandum Opinion and Order – Page 8

to adequately object to the applicability of § 2G2.2(b)(6) and for counsel allowing him to stipulate
to the use of a computer in his Factual Résumé. 3
2. Failure to Object to the Application of SORNA
Movant maintains that counsel provided ineffective assistance by failing to object to the
special conditions imposed on his sentence, including the requirement that he register as a sex
offender under SORNA. As summarized in the Report, Movant asserted in his § 2255 Motion
that:
the PSR made no recommendation about special conditions[;] there was no notice
that he might be subjected to the special conditions[;] the court did not make
findings related to the special conditions[;] the period of time that he must register
under SORNA exceeded the statutory maximum punishment[;] and the offense was
not one that required the special conditions and sex-offender registration.
Report 9-10. In the Report, the Magistrate Judge determined that Movant raised these issues on
appeal, and that the Fifth Circuit’s holding that no nonfrivolous issue exists applies to the Movant’s
arguments related to the imposition of SORNA as well.
As previously discussed, Movant contends that these issues were not before the Fifth
Circuit in his direct appeal. In his Objections, however, he asserted the following:
With respect to the special conditions and SORNA, the stated grounds for
appeal could not have been clearer. Those stated grounds include lack of prior
notice; lack of stated reasons; lack of factual findings in support; conditions in
excess of the statutory maximum; sentencing in absentia; due process[;] and
individualized sentence rights violations. Each numbered condition began with the
phrasing, “Defendant appeals the procedural errors in imposing . . .” and those
sections ended with the claim that the errors amount to a sentence in excess of the
statutory maximum.

Movant does not address this issue in Objections, but he raises it in his § 2255 Motion. Upon review of the record,
the court determines that the arguments related to § 2G2.2(b)(6) and the stipulation are the same. Thus, the court
determines that Movant’s assertion that his counsel was ineffective for allowing him to stipulate to his use of a
computer is without merit.

3

Memorandum Opinion and Order – Page 9

Movant’s Obj. 9. This assertion contradicts Movant’s theory and, instead, demonstrates that his
objection to the imposition of SORNA and other special conditions were raised on appeal. See
Def.’s Resp. to Anders Br. 7-11, 20-30, Freed, No. 15-10637 (Feb. 16, 2016) (detailing his
objections to the application of § 2G2.2(b)(6), the special conditions of supervised release, and
sex-offender registration under SORNA). The use of the word “procedure” in the header and
“substantive procedural error” sprinkled throughout his response is quite beside the point. Despite
Movant’s focus on wordplay, the essence of his argument is that there was an error in his
sentencing because § 2G2.2(b)(6) and the special conditions, including sex offender registration
under SORNA, were improperly applied.
Whether the assertion is that the court erred by not considering Movant’s arguments or that
his counsel failed to adequately present his objections, the court determines that couching them as
an ineffective assistance of counsel claim is merely a distinction without a difference. The court,
therefore, agrees with the Magistrate Judge that the Fifth Circuit has already deemed Movant’s
arguments underscoring his Objections as frivolous.
As previously discussed, counsel is not considered ineffective for failure to raise meritless
or futile arguments or objections. Thus, Movant’s counsel was not deficient for failing to object
to the imposition of SORNA. Additionally, Movant admits that he raised an objection to the
imposition of SORNA pro se, and the court overruled this objection as well. Considering this, he
fails to demonstrate how counsel’s efforts would have been different or would have changed the
outcome of his sentencing. He also fails to demonstrate how his counsel’s alleged inaction caused
him any prejudice. The court, therefore, determines that Movant is not entitled to the requested
relief for the reasons herein discussed and, accordingly, overrules Movant’s objection on this
issue.

Memorandum Opinion and Order – Page 10

3. Failure to Provide Additional Assistance
Movant objects to the Magistrate Judge’s determination that he failed to show (1) what
evidence counsel should have discovered and presented to the court at his sentencing hearing, (2)
that his counsel’s performance was deficient, and (3) that he suffered any prejudice by his
counsel’s alleged failure to “investigate and present evidence of mitigating circumstances, prepare
a sentencing memorandum, and argue for a non-guideline sentence.” Report 5, 10; see also
Movant’s Obj. 9-10. In his Objections, Movant contends that he provided such detail in his § 2255
Motion and further stated that: (1) he personally wrote and prepared all of the objections to the
PSR because counsel did not give much attention to his case; (2) counsel should have presented to
the court the commentary items Movant gathered supporting the inapplicability of § 2G2.2(b)(6);
and (3) counsel should have provided the court the sentencing memorandum, which was drafted
months in advance of the sentencing hearing. Movant fails, however, to demonstrate what
evidence, if any, would have changed the outcome of his sentencing.
As previously discussed, Movant’s counsel objected to the applicability of § 2G2.2(b)(6)
and the special conditions at his sentencing hearing. Movant and his mother also testified on his
behalf. After considering the arguments and testimony presented, the court overruled both
objections. While the commentary Movant presents here was not presented to the court at the
hearing, the court determines that Movant’s arguments are without merit and would not have
changed the court’s ruling on these issues for the reasons herein discussed. Additionally, Movant
failed to demonstrate why his counsel’s decision not to file a sentencing memorandum was
unreasonable and not merely based on trial strategy after considering all of the facts at issue.
Without more, Movant has failed to establish that his counsel’s alleged failure to file a sentencing
memorandum or argue for a non-guideline sentence constitutes deficient performance, or that he

Memorandum Opinion and Order – Page 11

suffered any prejudice due to counsel’s inaction. Movant, therefore, is not entitled to relief based
on this issue, and, accordingly, the court overrules Movant’s objections. As Movant has failed to
meet his burden on each basis upon which his ineffective assistance claim relies, the court
determines that Movant is not entitled to relief on his ineffective assistance of counsel claim, and,
accordingly, his § 2255 Motion is denied with prejudice.
III.

Conclusion
Having reviewed the record in this case, the Report, and applicable law, and having

conducted a de novo review of the portions of the Report to which objections were made, the court
determines that the findings and conclusions of the Magistrate Judge are correct and accepts them,
as supplemented by this opinion, as those of the court. Accordingly, the court overrules Movant’s
Objections (Doc. 34), denies his request for a hearing, 4 and denies with prejudice his Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
(Doc. 2). Accordingly, this action is hereby dismissed with prejudice.
It is so ordered this 17th day of January, 2020.
_________________________________
Sam A. Lindsay
United States District Judge

The Magistrate Judge concluded that the record is clear that Movant is not entitled to relief on his claims, and, thus,
no hearing is required. Report 11. Movant did not object to this recommendation, and based on the court’s review of
the record, it agrees that a hearing is not required or necessary. Therefore, it accepts the Magistrate Judge’s conclusion
and will not conduct a hearing on Movant’s § 2255 Motion.

4

Memorandum Opinion and Order – Page 12