Eitel v. United States of America

Filing 7

OPINION and ORDER by the Honorable Alan B Johnson denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255), filed by Brian Eitel. Copy of order mailed to Petitioner on this date via US Mail. (Court Staff, sth) (Court Staff, sth)

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UNITED STATES DISTRICT COURT
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Brian Eitel,
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Petitioner,

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No. 13-CV-03-ABJ
No. 11-CR-06-ABJ

United States of America,
Respondent.
OPINION AND ORDER DENYING PETITIONER'S
MOTION UNDER 28 U.S.C. § 2255
Brian Eitel was convicted of possessing child pornography
and sentenced to 51 months in prison and 20 years of supervised release. He has now filed a motion under 28
U.S. C.§ 2255 asking the Court to vacate, set aside, or correct his sentence. His claims rest primarily on allegations
of ineffective assistance of counsel in violation of the Sixth
Amendment. The Government contends that none of Mr.
Eitel's claims has merit. Because the Court agrees with
the Government, it DENIES Mr. Eitel's motion.

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FACTS
A few years ago, a special agent with the Wyoming Division of Criminal Investigation (DCI) discovered a computer in Riverton, Wyoming, offering Internet downloads of
images and movie files containing child pornography. The
agent was able to download and view one of those movie
files, which consisted of a man sexually assaulting a fiveto-eight-year-old prepubescent girl.
Armed with that evidence, the agent got a search warrant
for the residence associated with the computer. The residence was occupied by Brian Eitel, who was at home
when DCI agents executed the search warrant. After being read his Miranda rights, Mr. Eitel admitted to using
his computer to download child pornography from the Internet. A grand jury then indicted Mr. Eitel for violating
18 U.S.C. § 2252A(a)(5)(B), which makes it a crime for a
person to knowingly possess any computer disk containing an image of child pornography that has been transported using any means or facility of interstate commerce.
Mr. Eitel pleaded guilty to that charge.
Mter accepting Mr. Eitel's guilty plea, the trial court ordered a probation officer to prepare a presentence investigation report under the United States Sentencing Guidelines Manual (Guidelines). The report applied a two-level
sentence enhancement to Mr. Eitel because the images on
his computer involved prepubescent minors under the age
of 12. It also applied a four-level enhancement because
the images depicted sadistic conduct and a two-level enhancement for Mr. Eitel's use of a computer. Notably, the
report did not apply a two-level enhancement for distribution of child pornography. Based on its Guidelines calculation, the report recommended 78 to 97 months in prison
and a lifetime of supervised release.

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In addition to the presentence report, before the sentencing hearing the trial court also received a report from Dr.
Charles Denison, who had conducted a forensic evaluation
of Mr. Eitel. In his report, Dr. Denison reached several
conclusions favorable to Mr. Eitel:
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Mr. Eitel presents a low risk to commit any kind of
hands-on or personal contact sexual crime.

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Mr. Eitel presents a low risk for re-offense of Internet-related sex crimes.

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Mr. Eitel does not suffer from pedophilia.

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Mr. Eitel's psychological and moral development is
not impaired.

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There is no evidence that Mr. Eitel is a threat to the
safety of his community.

At sentencing, the trial court concluded that the presentence report had accurately calculated Mr. Eitel's advisory
sentencing range under the Guidelines. It also noted that
it had received and reviewed Dr. Denison's report. It then
heard live testimony from Dr. Denison, who testified favorably for Mr. Eitel. Mter listening to that testimony,
the trial court considered how the various sentencing factors under 18 U.S.C. § 3553(a) applied in Mr. Eitel's case.
Based on Dr. Denison's report, his live testimony, and the
§ 3553(a) factors, the trial court granted Mr. Eitel a substantial downward variance and sentenced him to 51
months in prison and 20 years of supervised release.
Mr. Eitel has now filed a motion under 28 U.S.C. § 2255
challenging both his conviction and sentence. His claims
rest primarily on allegations of ineffective assistance of
counsel in violation of the Sixth Amendment. The Gov-

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ernment contends that none of Mr. Eitel's claims has merit.
The Court will discuss each of Mr. Eitel's claims in turn
before briefly concluding.
DISCUSSION
Because most of Mr. Eitel's claims allege ineffective assistance of counsel, a review of the legal principles governing
ineffective-assistance claims is warranted.
In Strickland v. Washington, the Supreme Court announced a two-part test that governs ineffectiveassistance-of-counsel claims. 466 U.S. 668, 687 (1984).
First, "[a] petitioner must show that counsel's performance was deficient." Wiggins v. Smith, 539 U.S. 510, 521
(2003). Second, a petitioner must show that counsel's deficiency "prejudiced the defense." Id.
"To establish deficient performance, a petitioner must
demonstrate that counsel's representation fell below an
objective standard of reasonableness." Id. (internal quotation marks omitted); see Strickland, 466 U.S. at 688 ("The
proper measure of attorney performance remains simply
reasonableness under prevailing professional norms."). A
petitioner must overcome a "strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
To establish Strickland's prejudice component, "[t]he defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

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With these principles in mind, the Court considers their
application to Mr. Eitel's claims.
1. Ineffective assistance for advising Mr. Eitel to plead
guilty to a crime without first informing him of an element of that crime.

Mr. Eitel's first ineffective-assistance claim starts with
the following premise: If a defense attorney advises a client to plead guilty without first informing the client of an
element of the crime, defense counsel renders deficient
performance under Strickland. Mr. Eitel asserts that one
element of a § 2252A(a)(5)(B) charge is that the images of
child pornography must have crossed state lines. He further asserts that defense counsel advised him to plead
guilty to violating § 2252A(a)(5)(B) without first informing
him of that element. By failing to do so, Mr. Eitel contends defense counsel rendered deficient performance.
And, Mr. Eitel continues, that deficiency prejudiced him.
Had he known about that element, Mr. Eitel says he
wouldn't have pleaded guilty. Instead, he would have insisted on going to trial based on his belief that the Government had no evidence that the images on his computer
crossed state lines.
Mr. Eitel's claim falters on his assertion that
§ 2252A(a)(5)(B) requires the Government to prove the
pornographic images crossed state lines. The Tenth Circuit has stated that the version of§ 2252A in effect at the
time of Mr. Eitel's conduct in fact doesn't require proof
that the images crossed state lines-rather, the Government may establish § 2252A's interstate commerce element by proof that the defendant used the Internet to
download images of child pornography. See United States
v. Swenson, 335 F. App'x 751, 753 (lOth Cir. 2009). Because Tenth Circuit precedent thus establishes that the

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Government need not prove the images of child pornography crossed state lines, defense counsel was not ineffective for failing to inform Mr. Eitel of that nonexistent element before advising him to plead guilty. Mr. Eitel's first
claim therefore fails on Strickland's performance component.
2. Ineffective assistance for failing to object to two-level
enhancement for possessing pornographic material involving a prepubescent minor or child under the age of
twelve.
Mr. Eitel's second claim is that defense counsel was ineffective for failing to object to a two-level sentencing enhancement under § 2G2.2(b)(2) of the Guidelines. That
provision applies a two-level enhancement "[i]f the material involved a prepubescent minor or a minor who had
not attained the age of 12." U.S. Sentencing Guidelines
Manual § 2G2.2(b)(2) (2011).
Mr. Eitel contends this enhancement was inappropriately
applied to him for two reasons. First, there was no expert
testimony that any of the images on his computer involved a child under the age of 12. And second, the Government offered no evidence to that effect. Therefore, according to Mr. Eitel, because § 2G2.2(b)(2) was inapplicable, defense counsel was ineffective for failing to object.
The Court rejects that contention. At the outset, Mr. Eitel
is wrong to argue that§ 2G2.2(b)(2) is inapplicable unless
expert testimony establishes that the images in question
depict prepubescent children or children under 12. See
United States v. Kimler, 335 F.3d 1132, 1144 (lOth Cir.
2003). Further, Mr. Eitel doesn't even allege that defense
counsel's failure to object prejudiced him. Nor does he offer any evidence showing there's a reasonable probability
that, but for defense counsel's failure, the court would not

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have applied the enhancement. Mr. Eitel's second claim
therefore fails on Strickland's prejudice component. Cf.
Hill v. Lockhart, 474 U.S. 52, 60 (1985) (rejecting the petitioner's Strickland claim where the petitioner failed to allege prejudice).
3. Ineffective assistance for failing to object to two-level
enhancement for distribution of child pornography.
Mr. Eitel's third claim is that defense counsel was ineffective for failing to object to a two-level enhancement under
§ 2G2.2(b)(3)(F) of the Guidelines. This claim suffers from
a simple but fatal defect: At the sentencing hearing, the
trial court adopted the presentence report's guidelines
calculation, which did not include a distribution enhancement. The Court can hardly fault defense counsel
for not objecting to an enhancement that wasn't even applied to Mr. Eitel. His third claim fails on Strickland's
performance component.
4. Ineffective assistance for failing to object to four-level
enhancement for sadistic images.
Mr. Eitel's fourth claim is that defense counsel was ineffective for failing to object to a four-level enhancement
under§ 2G2.2(b)(4) of the Guidelines. That enhancement
applies if the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence. Mr. Eitel contends that the enhancement impermissibly double counts conduct already covered by the
base offense level of the applicable guideline. Mr. Eitel believes defense counsel was ineffective for failing to make
that argument.
It's well settled that if an argument is meritless, defense
counsel is not ineffective for failing to make it. See Sperry

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v. McKune, 445 F.3d 1268, 1275 (lOth Cir. 2006) (holding
that counsel was not ineffective for failing to assert a meritless argument at trial); Miller v. Mullin, 354 F.3d 1288,
1298 (lOth Cir. 2004) ("[l]f the issue is meritless, its omission will not constitute deficient performance."). Here, Mr.
Eitel's double-counting argument is meritless because it's
foreclosed by precedent. See, e.g., United States v. Rodgers, 610 F.3d 975, 978-79 (7th Cir. 2010) (rejecting this
same double-counting argument); United States v. Lyckman, 235 F.3d 234, 240 (5th Cir. 2000) ("This argument is
easily debunked because it obviously ignores that child
pornography may involve merely pictures of a naked child
... without physical sexual contact." (internal quotation
marks omitted)). Because Mr. Eitel's double-counting argument is meritless, defense counsel was not ineffective
for failing to make it. Mr. Eitel's fourth claim therefore
fails on Strickland's performance component.
5. Ineffective assistance for failing to object to two-level
enhancement for use of a computer.
Mr. Eitel's fifth claim is that defense counsel was ineffective for failing to object to a two-level enhancement under
§ 2G2.2(b)(6) of the Guidelines. That enhancement applies
if the offense involved the use of a computer. Similar to
his previous argument, Mr. Eitel argues that this enhancement impermissibly double counts conduct already
covered by the base offense level. That argument is meritless because the Tenth Circuit has squarely rejected it.
See United States v. MHler, 318 F. App'x 701, 702-03
(lOth Cir. 2009) (concluding that two-level enhancement
for computer use does not constitute impermissible double
counting). Because the argument is meritless, defense
counsel was not ineffective failing to make it. Mr. Eitel's
fifth claim therefore fails on Strickland's performance
component.

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6. Ineffective assistance for failing to object to 20 years of
supervised release.
Mr. Eitel's final ineffective-assistance claim is that defense counsel was ineffective for failing to object when the
court imposed 20 years of supervised release. Defense
counsel should have objected, Mr. Eitel contends, because
that length of supervision is substantively unreasonable.
Unreasonable, says Mr. Eitel, in light of mitigating factors in Dr. Denison's report and testimony.
Mr. Eitel faces an uphill battle in convincing this Court
that 20 years of supervised release is substantively unreasonable. That's because "a district court's sentence is
substantively unreasonable only if it is arbitrary, capricious, whimsical, or manifestly unreasonable." United
States v. Sayad, 589 F.3d 1110, 1116 (lOth Cir. 2009) (internal quotation marks omitted); see Gall v. United
States, 552 U.S. 38, 41 (2007).
Mr. Eitel has failed to demonstrate that his sentence was
arbitrary or manifestly unreasonable. The record shows
the trial court carefully considered both Dr. Denison's report and his live testimony when arriving at Mr. Eitel's
sentence. See, e.g., Sentencing Tr. 7:12-8:1, 27:14-30:13,
ECF No. 39. It also shows the trial court thoroughly considered the § 3553(a) factors when sentencing Mr. Eitel.
See id. at 27:13-33:16. Indeed, the trial court granted Mr.
Eitel a downward variance based on Dr. Denison's findings and the § 3553(a) factors. The record thus shows the
trial court made a reasoned and reasonable decision that,
under the totality of the circumstances, 20 years of supervised release was justified. Based on the record then, this
Court cannot say that the trial court's decision was arbitrary, manifestly unreasonable, or an abuse of discretion.
What it can say is that any objection to that effect would
have been meritless, that defense counsel was not ineffec-

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tive for failing to raise such an objection, and that Mr. Eitel's final ineffectiveness claim therefore fails on Strickland's performance component.
7. Mr. Eitel's remaining claims.
Mr. Eitel's remaining claims merely rehash his ineffectiveness claims addressed above--but instead of couching
his arguments in terms of ineffective assistance, he presents them as stand-alone claims. Specifically, he argues:
(1) there was insufficient evidence that the images of child
pornography on his computer travelled across state lines;
(2) the two-level enhancement for images involving a prepubescent minor or child under the age of 12 was improper; (3) the two-level enhancement for distribution was improper; (4) the four-level enhancement for sadistic images
was improper; (5) the two-level enhancement for use of a
computer was improper; and (6) the 20 years of supervised release was substantively unreasonable. The Court's
prior analysis demonstrates that none of those arguments
has merit.
8. Evidentiary hearing.
Section 2255 provides that a district court should hold an
evidentiary hearing on a § 2255 motion "[u]nless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief." 28 U.S.C.
§ 2255(b). Here, the Court concludes that Mr. Eitel's motion and the record and files of this case conclusively show
he's not entitled to relief. The Court thus denies him an
evidentiary hearing. See United States v. Marr, 856 F.2d
1471, 1472 (lOth Cir. 1988) (holding that no evidentiary
hearing is required if the record conclusively shows that
the petitioner is not entitled to relief) .

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9. Certificate of appealability.
The rules governing § 2255 proceedings state, "[t]he district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant."
Rule ll(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Section 2253
provides that "[a] certificate of appealability may issue ...
only if the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). To make such a showing, a petitioner must
demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were adequate to deserve encouragement
to proceed further." Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quotation marks omitted). Here, because
reasonable jurists could not debate the correctness of the
Court's disposition, the Court denies Mr. Eitel a certificate of appealability.
CONCLUSION
All of Mr. Eitel's ineffective-assistance-of-counsel claims
lack merit. And his other claims are simply his ineffective-assistance claims stripped of their ineffectiveassistance clothing. The Court therefore DENIES Mr. Eitel's § 2255 motion, DENIES an evidentiary hearing, and
DENIES a certificate of appealability.
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Dated this 2? ~ day of August, 2013.

Alari B. Johnson /
United States District Judge

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