United States District Court, N.D. New York
April 20, 2004.
MAURICE WAYNE JONES, Petitioner, -against- UNITED STATES OF AMERICA, Respondent
The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM DECISION AND ORDER
Petitioner Maurice Wayne Jones ("Petitioner" or "Jones"), now moves
the Court for the following relief: (1) pursuant to 28 U.S.C. § 2255,
to vacate, set aside, or correct his sentence, (Dkt. No. 29), and (2) for
the appointment of counsel to pursue his § 2255 motion, (Dkt. No.
42). The United States of America, as Respondent, opposes both of these
motions. For the following reasons, both motions are denied.
In 1997, Mr. Jones, age 41, resided in North Carolina. He met a minor,
then age 15 who lived in Plattsburgh, New York, in an America On Line
teen chat room. The two communicated over the internet and then began
speaking on the telephone with Mr. Jones indicating that he would like to
come to Plattsburgh to have sex with this individual. On or about August
31, 1997, Jones traveled from North Carolina to Plattsburgh to see the victim, who
he knew to be under the age of 16. He stayed for five days, and the two
met a number of times in his hotel room.
While visiting the Plattsburgh area, Jones brought his computer, which
contained a number of images that he showed to his victim, including one
of a minor involved in sexually explicit conduct. When authorities
searched his home in July 1998, a computer and disks were seized that
contained a number of images of prepubescent minors engaged in sexually
(b) Procedural History
On June 2, 1999, this Court accepted Jones' guilty plea on three counts
and entered judgment of conviction. On October 28, 1999, the Court
sentenced Petitioner based upon his guilty plea. First, Petitioner pled
guilty to Count 1 of the Second Superseding Indictment ("SSI")
(98-CR-334), which charged, under 18 U.S.C. § 2423(b), travel in
interstate commerce with intent to engage in a sexual act with a
juvenile, for which Petitioner received a sentence of 120 months.
Second, Petitioner pled guilty to Count 5 of the SSI, which charged, in
violation of 18 U.S.C. § 2252(A)(a)(1), transportation of child
pornography, for which he was sentenced to 180 months. These two sentences
imposed for the violations charged in the SSI were to run concurrently,
thus providing for a 180 month sentence under these counts. Finally,
Petitioner pled guilty to Count 1 of the Information (99-CR-272), which
charged, in violation of 18 U.S.C. § 2252(a)(4)(B), possession of child
pornography, for which he was sentenced to 30 months. This 30 month
sentence imposed under Count 1 of the Information was to run
consecutively to the two SSI sentences. Petitioner was therefore
sentenced to 210 months imprisonment, in addition to three years of
supervised release, and a $300 special assessment.
Jones waived his right to appeal the conviction but did not waive his
right to appeal the sentence imposed. (Dkt. No. 32, Exhibit 4: Plea Agreement at ¶ 10.1). He
appealed the imposition of two sentencing enhancements to the Second
Circuit, which affirmed the Court's decision to impose them. Jones. 2000
U.S. App. LEXIS 6316 (unpublished opinion).
Petitioner now moves to vacate his sentence pursuant to 28 U.S.C. § 2255.
Specifically, his motion seeks relief on four grounds: (1) as required by
Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the facts supporting
sentencing enhancements that exposed Petitioner to a sentence beyond the
statutory maximum must have been submitted to a jury for a determination
of guilt, (2) Petitioner's guilty plea was made involuntarily,
unintelligently, and unknowingly in violation of his Fifth Amendment
rights, (3) Petitioner was deprived of effective assistance in violation
of his Sixth Amendment rights, and (4) the Supreme Court's determination
in Ashcroft v. Free Speech Coalition. 535 U.S. 234, 122 S.Ct. 1389,
152 L.Ed.2d 403 (2002), that the Child Pornography Prevention Act of 1996
(CPPA) was unconstitutional, in part, renders Petitioner's convictions
under the same unconstitutional.
(a) Petitioner's motion for appointment of counsel
Petitioner first moves the Court for appointment of counsel to
represent him in the motion to set aside, vacate, or amend his sentence.
(Dkt. No. 42). The government opposes this motion. (Dkt. No. 43).
It is well-settled, as Petitioner acknowledges, that he has no
constitutional right to counsel to collaterally attack his conviction.
Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539
(1987); (Dkt. No. 50, Petitioner's Reply Mem. at 1-2). Rather, Petitioner
moves for appointment of counsel under 18 U.S.C. § 3006A and Local Rule
83.3(c) of the Northern District of New York.
§ 3006A(a)(2) allows a district judge to appoint counsel for a
§ 2255 petitioner who cannot afford representation on his own when
"the interests of justice so require". Local Rule 83.3(c) provides
factors to consider in determining whether counsel shall be appointed,
(1) The potential merits of the claims as set
forth in the pleading;
(2) The nature and complexity of the action, both
factual and legal, including the need for
(3) The presence of conflicting testimony calling
for an attorney's presentation of evidence and
(4) The capability of the pro se party to present the
(5) The inability of the pro se party to retain an
attorney by other means;
(6) The degree to which the interests of justice
shall be served by appointment of an attorney,
including the benefit the Court shall derive
from the assistance of an appointed attorney;
(7) Any other factors the Court deems appropriate.
As the Court is not ordering a hearing on Petitioner's § 2255 motion,
Petitioner has no need for counsel to assist him in presenting evidence
and examining witnesses, nor is there any need for factual
The Court must consider the potential merits of his
§ 2255 claims and whether Petitioner requires the expertise of counsel to
In the present case, Petitioner filed his amended motion and nineteen
months later filed for appointment of counsel. At that point, Petitioner
had filed his motion and memoranda of law on the merits of his petition.
The Court has reviewed the materials he submitted. As will be discussed
below, the Court finds no merit in his claims. Petitioner thoroughly
briefed the issues he now raises. Therefore, the assistance of counsel
would not improve his chances to prevail where all his claims are sufficiently argued, but yet still meritless. This point
is dispositive, and the Court will not appoint Jones counsel.
(b) Standard of Review for Motion under § 2255
As one court noted, the collateral attack on a guilty plea under §
2255 is "quite stringent" because it is "presume[d] that the proceedings
which led to defendant's conviction were correct." United States v.
Moss. 137 F. Supp.2d 1249, 1256 (D.Kan. 2001). A collateral attack
such as the one Petitioner has now brought has long been subjected to a
high standard of review:
A § 2255 movant can successfully challenge a guilty
plea conviction based on a rule 11 violation only by
establishing that the violation constituted a
"constitutional or jurisdictional" error, United
States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085,
2087, 60 L.Ed.2d 634 (1979) (citing Hill v. United
States, 368 U.S. 424, 428, 82 S.Ct. 468, 471,
7 L.Ed.2d 417 (1962)), or by showing that the error
resulted in a "`complete miscarriage of justice'" or
in a proceeding "`inconsistent with the rudimentary
demands of fair procedure.'" Timmreck, 441 U.S. at 784
(quoting Hill, 368 U.S. at 428). The movant should
also demonstrate that he was prejudiced by the
violation because he did not understand the
consequences of his plea, or that, if he had been
properly advised, he would not have pled guilty. Id.
Lucas v. United States, 963 F.2d 8, *12-13 (2d Cir.
(c) Enhancements Applied to Petitioner's Sentence
(1) Prior appeal
As noted above, Jones appealed to the Second Circuit the imposition of
two sentencing enhancements under the U.S. Sentencing Guidelines
("Guidelines"): (1) a five-level enhancement under § 2G2.2(b)(2) of the
Guidelines for an offense involving the distribution of child
pornography, and (2) a four-level enhancement under § 262.2(b)(3) of the
Guidelines for offenses involving material that portrays sadistic or
masochistic conduct. The Court of Appeals affirmed this Court's
imposition of those enhancements. Jones. 2000 U.S. App. LEXIS 6316
(unpublished opinion). In affirming the Court's sentencing decision with respect to these
enhancements, the Second Circuit instructed that the "district court
explicitly adopted the factual findings made in the presentence report,
which were uncontested by Jones." Id. at *4.
(2) Petitioner's failure to address his Apprendi claim before the
Second Circuit in a prior appeal requires dismissal of the claim
Petitioner has already appealed his case to the Second Circuit, wherein
he then objected to two of the enhancements applied by the Court.
Petitioner now attempts to raise additional grounds for contesting his
sentence and the enhancements applied to it, under Apprendi. His failure
to raise this Apprendi claim on appeal with the Second Circuit, however,
bars him from raising it before this Court. "It is now well-settled that
habeas petitioner brought by state prisoners under § 2254 will be
dismissed unless the prisoner has shown cause for failing to raise his
claim at the appropriate time and prejudice from the alleged error."
Campino v. United States, 968 F.2d 187, 189 (2d Cir. 1992). See Carmona
v. U.S. Bureau of Prisons, 243 F.3d 629, 633 (2d Cir. 2001)
(acknowledging this standard applies to claims under § 2255 for federal
convictions, as well).
Petitioner has not demonstrated that he had cause for not raising this
issue before the Second Circuit in his prior appeal. Although the Supreme
Court issued Apprendi a few months after Petitioner's appeal to the
Second Circuit was complete, a bar still exists. Courts have recognized
that even if prisoners' appeals were complete before Apprendi had been
handed down, the legal framework for that decision had been set years
before, allowing prisoners to make such an argument in their appeals:
[T]he lack of precedent for a position differs from
"cause" for failing to make a legal argument. Indeed,
even when the law is against a . . . contention, a
litigant must make the argument to preserve it for
later consideration. . . . The lack of any reasonable
legal basis for a claim may constitute "cause," . . .
but the foundation for Apprendi was laid long before 1992. Other defendants
had been making Apprendi-like arguments ever since the
Sentencing Guidelines came into being, and in
McMillian v. Pennsylvania. 477 U.S. 79, 91 L.Ed.2d 67,
106 S.Ct. 2411 (1986), the Court addressed on the
merits an argument along similar lines. [Appellant]
could have invoked the themes in McMillian . . . just
as the Justices did in Apprendi. United States v.
Smith. 241 F.3d 546, 548-49 (7th Cir. 2001) (emphasis
in original) (internal citations omitted).
See also Narvaez v. United States, 2003 U.S. Dist. LEXIS 12978 (S.D.N.Y
2003) (citing to Smith for the same proposition).
Petitioner's Apprendi claim is not properly considered by this Court,
as he failed to raise it before the Second Circuit and has shown no cause
for such failure.
(d) Petitioner's Guilty Plea
"A guilty plea is constitutionally valid if it represents a voluntary
and intelligent choice among the alternative courses of action open to
the defendant. A defendant must accordingly receive real notice of the
true nature of the charge against him, as well a description of the
critical elements of the offense. . . ." Panuccio v. Kelly, 927 F.2d 106,
110 (2d Cir. 1991) (internal citations and quotations omitted).
Moreover, a trial court could assume that a defendant understands the
charges against him if he is represented by counsel who had explained the
charges to him. Id. at 111 (citing Henderson v. Morgan. 426 U.S. 637, 647
(1) Petitioner's argument
Petitioner moves for his sentence to be set aside because his guilty
plea was taken involuntarily, unintelligently, and unknowingly in
violation of the Fifth Amendment's due process clause. In so moving, he
claims that he received misrepresentations from counsel, in a letter
dated April 17, 1999, that if he pled guilty to the three counts, there
would be no enhancement sought by the prosecution for sadistic and
masochistic photos. (Dkt. No. 29, Motion to vacate at 6, ¶ 1). He further claims that the Court did not advise him of the nature of
the charges against him and the possible consequences. (Dkt. No. 29,
Motion to vacate at 6, ¶ 4). Such error, Petitioner contends, made
his plea involuntary.
(2) The Court fully explained to Petitioner the charges against
Petitioner argues that his plea was involuntary because "the movant was
not advised of the connotations and the consequences of his plea insofar
as the enhancements were concerned by his counsel, the prosecutor in the
Plea Agreement, or the court [sic] during his Rule 11 hearing and during
his sentencing hearing." (Dkt. No. 2, Petitioner's Mem. of Law at 36). In
the present case, the record from Petitioner's allocution clearly dispels
his claim that his plea was involuntary.
The Court advised Petitioner as to the specific nature of the charges
in a detailed plea allocution. First, Petitioner admitted the facts as
stated by the prosecution. (Dkt. No. 32 Exhibit 2, Plea Transcript at
19). The counts to which Petitioner pled guilty were read in court and
included the elements of each crime. (Dkt. No. 32 Exhibit 2, Plea
Transcript at 13-15). To each count he stated that he wished to plead
guilty. Petitioner stated several times at his plea allocution that he
had discussed his plea and its consequences with his attorney. See,
e.g., Dkt. No. 32 Exhibit 2, Plea Transcript at p. 10-12.*fn3 All of
these statements, coupled with the fact that he had fully discussed the
charges with his attorney make it clear that Petitioner understood the
nature of the charges against him, contradicting his present claim.
Petitioner was also fully advised as to the consequences of his plea,
specifically with respect to his possible sentence. The plea agreement
instructed that his sentence imposed is within the sole discretion of the Court who may sentence him to the maximum term of
imprisonment allowed in the Sentencing Guidelines. (Dkt. No. 32, Exhibit
4: Plea Agreement at ¶ 4.10). The maximum sentences were set out
therein, and were identical to the maximum sentences explained above,
namely, 10 years for Count 1 of the SSI, 15 years for Count 5 of the
SSI, and 5 years for Count 1 of the Information. (Dkt. No. 32 Exhibit 4,
Plea Agreement at ¶ 4.1). These maximums were repeated at the plea
allocution. (Dkt. No. 32 Exhibit 2, Plea Transcript at 19-20). Petitioner
was fully apprised of the nature of the potential sentence he faced.
Although the enhancements were not suggested at the plea, there was no
promise by the Court or government that his sentence would be less than
the maximum permitted under the guidelines.*fn4
(3) Petitioner's claim that the letter from his attorney indicated
a side agreement
Petitioner also claims that he believed that his attorney's April 17,
1999 letter, which stated that the government promised that it would not
seek enhancements, was part of the plea agreement. (Dkt. No. 29,
Petitioner's motion at 6). Absent enforcement of that promise, Petitioner
claims his plea was involuntary and unknowing.
United States v. Palladino, 347 F.3d 29 (2d Cir. 2003), is instructive
on this point. In Palladino, the Second Circuit held that a six-sentence
enhancement sought by the government was improper, but the Court based its decision upon the language of the plea
agreement, not upon the Fifth Amendment, as Petitioner does here. In
Palladino, the plea agreement stated that the government estimated the
offense level to be 10 "based on information known to [the U.S.
Attorney's Office] at this time." Id. at 33. The government sought a
six-level enhancement at the sentencing hearing. Id, at 34. However, the
government conceded that the information on which it sought the six-level
enhancement at sentencing was not new and was in fact known to the United
States at the time of the plea agreement. Id, at 34. The Court held,
therefore, that the government violated the plea agreement, and the
defendant was permitted to withdraw his plea.
In the present case, however, Petitioner points to no promise in the
plea agreement as to what offense level the Prosecution would seek. In
fact, the written plea agreement here stipulated only to the maximum
sentences permitted and stated that sentencing was within the sole
discretion of the Court pursuant to the Sentencing Guidelines. (Dkt. No
32, Exhibit 4, at ¶¶ 4.1, 4.10). This information was further reiterated
at the plea. (Dkt. no. 32, Exhibit 2, at 19, 21).
His attorney's letter, written more than one month prior to the plea
agreement, could not be understood as a promise from the government as to
what enhancements would be sought. The plea agreement itself stated that
it constituted the entire agreement, thereby eliminating the argument
that the plea encompassed additional elements. Petitioner cannot now
claim that his plea on the written terms was involuntary or unknowing
because he understood it to include a promise that the government would
not seek any enhancements.
(e) Petitioner's Ineffective Assistance of Counsel Claim
The burden is on Petitioner to demonstrate that he did not receive
effective assistance of counsel, and he is required to (1) show that
counsel's performance was deficient such that it fell below an "objective standard of reasonableness" measured under prevailing
professional norms, and (2) demonstrate affirmative prejudice such that
there is a reasonable probability that but for counsel's [error], the
result of the proceeding would have been different. Bermudez v.
Portuondo, 2004 U.S. Dist. LEXIS 5427, *121-22 (S.D.N.Y. 2004) (citing to
Strickland v. Washington, 466 U.S. 668, 686-688, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984)).
Petitioner claims that he was deprived of the right to effective
assistance of counsel as guaranteed by the Sixth Amendment. Summarily,
Petitioner make this allegation because (1) counsel coerced him into
entering a guilty plea by misinforming Petitioner and misleading the
Court to belive that the AUSA would not pursue the enhancements, and (2)
counsel failed to assert Petitioner's right to exclude evidence based
upon the illegality of the CPPA.
(1) Petitioner's claim of coercion
The government has submitted the affidavit of Jones' attorney, Kent B.
Sprotbery, Esq. Therein, Mr. Sprotbery specifically contradicts Jones'
first argument that counsel misled Petitioner into believing that
enhancements would not be applied to his sentence. Mr. Sprotbery states:
I never promised Mr. Jones that any enhancement would
not apply if he entered a plea of guilty. More
specifically, I never represented that the government
would not pursue any specific enhancement if he
entered a plea of guilty. The potential for numerous
Guideline enhancements were the source of many
conversations with Mr. Jones and AUSA Spina and all
parties were very aware of potential enhancements.
Dkt. No. 32, Exhibit 5, Sprotbery Aff. at ¶ 16.
Moreover, Mr. Sprotbery also states in that affidavit that:
The specific enhancement for the portrayal of S&M
material was a potential problem but all parties knew
of its potential application. A significant amount of
research was conducted regarding the "S&M"
enhancement. . . . I concluded that the application
would probably not apply and so informed Mr. Jones,
but I clearly indicated that the final decision would
rest with the sentencing Judge. Dkt. No. 32, Exhibit 5, Sprotbery Aff. at ¶¶ 24-25.
In fact, Mr. Sprotbery's affidavit states the specific dates upon which
he met with Petitioner and discussed the potential application of the
enhancements. (Dkt. No. 32, Exhibit 5, Sprotbery Aff. at ¶¶ 8-9, 12,
13, 15, 17-18, 20, and 23. He states in no uncertain terms that he did
not coerce Petitioner into accepting a plea. (Dkt. No. 32, Exhibit 5,
Sprotbery Aff. at ¶ 9).
At his plea, Jones specifically stated that he was satisfied with
counsel's performance. (Dkt. No. 32, Exhibit 2, Plea Transcript at 15).
Petitioner also stated that no one made threats or promises to him in an
effort to induce his plea, and Mr. Sprotbery also told the Court that he
in no way coerced his client. (Dkt. No. 32, Exhibit 2, Plea Transcript at
8, 10, 23). Jones' only evidence on this issue is his word that counsel
provided less than a reasonable standard of legal representation.
However, "[s]elf-serving conclusory allegations . . . are insufficient to
establish ineffective assistance of counsel." Hernandez v. United
States, 280 F. Supp.2d 118, *122 (S.D.N.Y. 2003) (citing to United States
v. Torres, 129 F.3d 710, 715-17 (2d. Cir 1997); United States v.
Gonzalez, 970 F.2d 1095, 1099-1101 (2d Cir. 1992).
(2) Petitioner's claim that counsel failed to argue that the CPPA
Finally, Petitioner claims Mr. Sprotbery provided ineffective
assistance of counsel because he did not fully consider pursuing a claim
that the CPPA was unconstitutional. Such an argument is without merit
considering the Court's following discussion that the unconstitutionality
of the definition of "child pornography" in the CPPA does not affect his
(f) Unconstitutionality of the Child Pornography Prevention Act
Finally, Petitioner claims that the United States Supreme Court's
decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389,
152 L.Ed.2d 403 (2002), requires the Court to vacate his conviction on two of the three counts to which he pled
guilty. Specifically, he argues that Free Speech makes clear that some of
the images he was convicted for possessing were protected speech, and
therefore they cannot constitutionally form the basis for his
(1) Ashcroft v. Free Speech Coalition
In Free Speech, the Court considered the constitutionality of the CPPA
section which defined child pornography:
"[C]hild porngraphy means any visual depiction,
including any photograph, film, video, picture, or
computer or computer-generated image or picture,
whether made or produced by electronic, mechanical, or
other means, or sexually explicit conduct where
(A) the production of such visual depiction
involves the use of a minor engaging in sexually
(B) such visual depiction is a digital image,
computer image, or computer-generated image
that is, or is indistinguishable from, that of a
minor engaging in sexually explicit conduct;
. . .
(D) such visual depiction is advertised, promoted,
presented, described, or distributed in such a
manner that conveys the impression that the material
is or contains a visual depiction of a minor
engaging in sexually explicit conduct. . . .
18 U.S.C. § 2256(8).
The Court first explained that § 2256(8)(A) retained the New York v.
Ferber, 458 U.S. 747, 73 L.Ed.2d 1113, 102 S.Ct. 3348 (1982), principle
that child pornography made using real children could be prohibited. 535
U.S. at 241. Under Ferber, images made using real children were
unprotected speech, because the images were a permanent record of a
child's abuse, and the traffic in child pornography was an economic
motive for its production, so the state had an interest in closing the
distribution network. 535 U.S. at 249 (citing Ferber, 458 U.S. at 759).
In §§ 2256(8)(B), (D), Congress encompassed in the definition of
child pornography, "`virtual child pornography,' which include[s]
computer-generated images. . . ." Id, at 241. Congress adopted this definition because it rationalized that virtual
child pornography can harm children in other ways, such as its use by
pedophiles to encourage children to participate in sexual activity. Id. at
241. However, in Free Speech, the Court refused to uphold these
provisions that would prohibit speech on this basis, recognizing that in
prior child pornography cases, the Court "anchored its holding in the
concern for participants, those whom it called the `victims of child
pornography.'" Id, at 250 (citing to Osborne v. Ohio, 495 U.S. 103, 110,
109 L.Ed.2d 98, 110 S.Ct. 1691 (1990)). The Court held that §§ 2256(8)(B)
and (D) "proscribe[d] a significant universe of speech that is neither
obscene . . . nor child pornography under Ferber," 535 U.S. at 240.
Specifically, the Court held §§ 2256(8)(B) and (D) unconstitutional because
they encompassed virtual child pornography:
In contrast to the speech in Ferber, speech that
itself is the record of sexual abuse, the CPPA
prohibits speech that records no crime and creates no
victims by its production. Virtual child pornography
is not "intrinsically related" to the sexual abuse of
children, as were the materials in Ferber. . . . While
the Government asserts that the images can lead to
actual instances of child abuse . . . , the causal
link is contingent and indirect. The harm does not
necessarily follow from the speech, but depends upon
some unqualified potential for subsequent criminal
acts. Id. at 250.
Because Free Speech makes it clear that a conviction under the CPPA
must be based on pornography using real children and not computer
imaging, Petitioner now claims that his convictions under
18 U.S.C. § 2252A(a)(1), 2252(a)(4)(B), must be set aside because "the
prosecution made no effort to delineate between computer depictions of
real people and depictions traceable wholly to computer imaging." (Dkt.
No. 30, Petitioner's Mem. of Law at 7).
(2) Count 1 of the Information under § 2252(W4YB)
The child pornography that Petitioner possessed, and which formed the
basis of his conviction under § 2252(a)(4)(B) in Count 1 of the Information, was made
using real children and therefore falls within § 2256(8)(A), the part of
the CPPA's child pornography definition that remained intact after Free
Speech.*fn5 The language of the Information, itself, makes it clear that
the child pornography Petitioner was charged with possessing in this
Count contained images using real children, not computer imaging nor
Count 1 of the Information tracked the language of § 2256(8)(A), as it
stated that Petitioner possessed "visual depictions of minors engaging in
sexually explicit conduct . . . which were produced using minors engaged
in such conduct. . . ." (Dkt. No. 32, Exhibit 2: Plea at 13 (AUSA's
reading of the indictment)). Petitioner pled guilty and admitted all of
the facts contained therein. He cannot now argue that the images were
virtual computer images. Therefore, because the pornographic images which
Petitioner possessed were made using real children upon his own
admission, they are not protected speech even after the Supreme Court's
Free Speech decision. Petitioner's plea and conviction on this Count of
the Information will not be set aside.
(3) Count 5 of the SSI under § 2252A(a)(1)
Count 5 of the SSI charging Petitioner with violating § 2252A(a)(1)
was based upon his possession of one image, "!! 12ャ". Petitioner now
argues that his sentence on this count should be set aside because "[t]he
`!! 12ャ' depiction of a minor engaged in sexually explicit conduct is
not described [by the prosecution] as a depiction of a real person, a
computer depiction created through computer imaging, or any other specific type of
depiction." (Dkt. No. 30, at 7).
The SSI charged that Petitioner transported this image across state
lines "knowing that such image depicted sexually explicit conduct. . . ."
(Dkt. No. 32, Exhibit 2: Plea at 15 (AUSA reading the SSI)). This
language in the SSI does not clearly indicate that the government
proceeded under the constitutional § 2256(8)(A) definition of "child
pornography" such that the image was made using real children.
However, because Free Speech narrowed the definition of "child
pornography" since the time of the indictment, the Court may look to the
facts admitted by Petitioner and the plea agreement to determine whether
the image would fall within the constitutional definition of "child
pornography". See, e.g., United States v. Wainuskis, 138 F.3d 183, 185
(5th Cir. 1998) ("The district court relied on both the plea colloquy and
[Pre-Sentencing Report] to find a factual basis to support [defendant's]
guilty plea. Logically, it must examine the same information to determine
if there is a factual basis to set aside her conviction" when an
intervening change in controlling law altered the definition of the
statutory term "use".).
The plea agreement contained a statement of relevant facts that
Petitioner admitted to be true. (Dkt. No. 32, Exhibit 4, Plea Agreement
at ¶¶ 3.3, 3.4). The stipulated facts provide evidence that the image in
question used real children and not virtual images nor young looking
adults. The facts stated that "`!! 12ャ' involved a minor engaged in
sexually explicit conduct." (Dkt. No. 32, Exhibit 4, Plea Agreement at
¶ 3.4). The plea agreement further stated the elements of the crime and
explained that the "computer image transported constitutes a visual
depiction of a minor engaged in sexually explicit conduct" and "the
defendant knew the image was of a minor engaged in sexually explicit
conduct." (Dkt. No. 32, Exhibit 4, Plea Agreement at ¶ 3.6(B)). The United States now argues, and the Court agrees, that this language
in the plea agreement demonstrates that the government's case on Count 5
of the Indictment follows the definition of "child pornography" found in
§ 2256(8)(A). Again, this section defines "child pornography" as a
"visual depiction [which] involves the use of a minor engaging in
sexually explicit conduct. . . ." 18 U.S.C. § 2256(8)(A) (emphasis
added). The image in question falls under the definition in § 2256(8)(A)
and is therefore child pornography and is not protected speech. The
Petitioner's sentence on this ground will not be set aside.
For the reasons set forth above, it is hereby
ORDERED that Petitioner's motion for appointment of counsel is
DENIED; and it is further
ORDERED that Petitioner's motion to vacate, set aside, or alter his
sentence is DENIED, and it is further ORDERED that the Clerk serve a copy
of this Order on all parties.
IT IS SO ORDERED.