The opinion of the court was delivered by: Wood, D.J.:
On May 21, 2008, I sentenced Laurence Gordon ("Petitioner") to 120 months in custody, following his conviction for illegal receipt of materials containing pornography, pursuant to 18 U.S.C. § 2252A(a)(2)(B).*fn1
On November 7, 2008 Petitioner appealed his sentence, raising three issues on appeal. First and principally, Petitioner's counsel ("appellate counsel" or "counsel") argued that I had erred in assuming that United States Sentencing Guideline § 2G2.2 (the "Guidelines") reflected the Sentencing Commission's empirical study and expertise regarding appropriate sentences for receipt of child pornography. (See Appendix to Motion to Vacate Pursuant to 28 U.S.C. § 2255 ("App") Ex. E at 3-4.) Appellate counsel contended that, because of this procedural error, I did not fully appreciate the scope of my discretion to vary from the adjusted Guidelines offense level. (Id.) Next, appellate counsel argued that, even if no procedural error occurred, the case should be remanded pursuant to United States v. Regalado, 518 F.3d 143 (2d Cir. 2008), in order to give me the opportunity to indicate whether I would have imposed a lower sentence had I understood that Section 2G2.2 did not represent the expertise of the Sentencing Commission. (App. Ex. E at 4-5.) Finally, appellate counsel preserved an argument that had been made below with respect to the constitutionality of a particular statutory provision, 18 U.S.C. § 3509(m). (Id. at 5.)
On May 12, 2009, the Second Circuit denied Petitioner's appeal in a one-page Summary Order. (App. Ex. G.) The Court found that appellate counsel's first argument-that the applicable Guidelines were formulated without the benefit of the Sentencing Commission's expertise-was waived, and thus subject to plain error review, because trial counsel had failed to present that same argument to me in the district court. (Id. at 2 ("Gordon did not argue [in the district court], as he does on appeal, that § 2G2.2 was formulated without the benefit of the Commission's expertise.").) The Court held that there "was no plain error" in my conclusion that I lacked sufficient evidence to disregard the expertise of the Sentencing Commission. (Id.) The Court concluded by noting that it had "reviewed appellant's remaining arguments" and had found "them to be without merit." (Id.) A petition for rehearing was denied on November 2, 2009. (App. Ex. H at 7.)
On July 14, 2010, counsel moved to vacate the sentence, pursuant to 28 U.S.C. § 2255. Counsel argues (1) that trial counsel was "ineffective in failing to argue that this Court did not owe deference to § 2G.2.2 because it was formulated without the benefit of the Sentencing Commission's expertise," and (2) that I made a mistake of fact that constituted "a fundamental defect resulting in a miscarriage of justice," when I assumed that the applicable Guidelines were the product of the Sentencing Commission's "expertise using an empirical approach." (Memorandum of Law in Support of Motion to Vacate Pursuant to 28 U.S.C. § 2255 ("Mem.") at 13, 28.)
The government opposed Petitioner's Section 2255 motion, arguing (1) that trial counsel's failure to argue that I did not owe deference to the Sentencing Commission does not constitute inadequate representation of counsel, because it was "objectively reasonable" for trial counsel to fail to raise "what would have been an issue of first impression in this Circuit;" *fn2 (2) that Petitioner has not established that he was prejudiced by trial counsel's failure, given that my below-Guidelines sentence showed that I understood that I could deviate from the Guidelines; and (3) that the Second Circuit considered, and rejected, Petitioner's argument that, even if Petitioner's representation at sentencing was adequate, I committed an error of fact in assuming that the Guidelines were the product of the Commission's empirical study and expertise. (Memorandum of Law in Opposition to Motion Pursuant to 28 U.S.C. § 2255 ("Opp.") at 18, 32, 37.)
I grant Petitioner's motion to vacate his sentence, based on my own error in assuming that more Sentencing Commission expertise underlay Section 2G2.2 than was the fact. That error resulted in my failure to credit a broad policy-based challenge to the child pornography Guidelines.
Section 2555 allows a collateral attack on a final judgment if an error of fact occurred, and if that error "constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); see also 18 U.S.C. § 2255.
Due process requires that a defendant "not be sentenced based on materially false information." Darden v. Bureau of Prisons, 707 F. Supp. 2d 363, 367 (E.D.N.Y. 2010) (quoting Torres v. United States, 140 F.3d 392, 404 (2d Cir. 1998)). "[M]aterial false assumptions as to any facts relevant to sentencing render the entire sentencing procedure invalid as a violation of due process." United States v. Malcolm, 432 F.2d 809, 816 (2d Cir. 1970) (citations omitted). Although "[n]ot every defect in the sentencing process . . . is of constitutional dimension," id., sentences have indeed been vacated on the grounds that the defendant was sentenced upon a mistaken finding of fact. (See Mem. at 30-31 (listing examples of such decisions).)
Until 2009 - 2010, there was little examination of the extent to which
the child pornography guidelines were a product of the Sentencing
Commission's empirical study and expertise. In October 2009, the
Commission issued a fifty-four page report entitled, "The History of
the Child Pornography Guidelines. See United States Sentencing
Commission, The History of the Child Pornography Guidelines, (Oct.
2009), available at
ography_Guidelines.pdf (last visited June 22, 2011) [hereinafter the "U.S.S.C. Report"]. The U.S.S.C.
Report highlighted the fact that increases in the Guidelines for child ...