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Forbes v. United States

United States District Court, Second Circuit

September 24, 2013

JASON FORBES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

Jason Forbes, proceeding pro se 62200-054, FCC Petersburg Medium, Petersburg, VA, for petitioner.

OPINION AND ORDER

DENISE COTE, District Judge.

Jason Forbes ("Forbes") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. For the following reasons, the petition is denied.

BACKGROUND

Forbes was arrested on April 23, 2009, and indicted on August 3, 2009 in two counts with violations of 18 U.S.C. § 2252A. The first count charged that Forbes knowingly distributed child pornography from his personal computer over the internet via a peer-to-peer networking program. The second count charged Forbes with knowingly possessing files containing images and video of child pornography that had been downloaded from the internet.

On December 3, Forbes entered a plea of guilty to Count Two of the Indictment, which charged him with the possession of child pornography. In the agreement with the Government that Forbes executed in connection with his plea, he agreed not to appeal or challenge any sentence at or below 97 months' imprisonment.

Forbes's sentencing guidelines range was 78 to 97 months' imprisonment. On April 30, 2010, Forbes was sentenced to probation for a term of five years. The conditions of probation included registration as a sex offender. This sentence was imposed at the second of two sentencing proceedings.

At the first sentencing proceeding on March 25, the Court asked counsel to respond to several questions. As the Court explained, it wanted to consider carefully the extent to which the defendant presented a risk of acting out with any child or of continuing to engage in the downloading or exchange of child pornography. The defendant had submitted a detailed, written psychological evaluation in support of a non-custodial sentence. The Court also asked counsel to indicate a preference between a sentence of time-served to be followed by supervised release and a sentence of probation. At the April 30 proceeding, both counsel expressed a preference for a sentence of probation in those circumstances.

On October 28, 2010, Forbes admitted to a violation of the terms of his probation. Forbes had been charged with two specifications of violation; he admitted to a violation of one of them, specifically that he had failed to truthfully answer inquiries made to him by his Probation Officer. Before accepting that admission, the Court advised Forbes of the penalties that he faced, which included imposition of a term of imprisonment of up to ten years. The Court further explained that because this was a violation of probation, the Court could impose any sentence that it could have originally imposed on Forbes when first sentencing him. Forbes indicated that he understood that. During his allocution, Forbes admitted that when his Probation Officer came to his apartment and asked him if he had a computer he lied to her and said no. He was remanded on that same day.

At a sentencing proceeding on December 17, the Government withdrew its request that the Court impose a sentence of 27 months' imprisonment in light of its understanding that a term of imprisonment may not be lengthened in order for a defendant to receive rehabilitative treatment. It recommended a term of imprisonment of three to nine months, which was the advisory guidelines range for this violation of the terms of probation. See U.S.S.G. § 7B1.4(a). Defense counsel asked that Forbes be returned to probation with additional conditions of supervision.

During the December 17 proceeding, the Court observed inter alia that Forbes had not complied with treatment since he had been sentenced and had been deceptive. The Court concluded that a substantial term of imprisonment was necessary to deter the defendant from further violation of law. It explained that it would sentence the defendant to a term of imprisonment of 60 months. Defense counsel intervened and asked for an opportunity to consider whether the defendant was disputing any of the facts set forth in the Government's sentencing submission and on which the Court might be relying in imposing sentence. The sentencing proceedings were adjourned to give the defendant an opportunity to identify any issues in dispute that might require a hearing.

On January 14, the parties produced a description of issues that would need to be resolved at a hearing. After the Government supplied the defendant with the material for the hearing as required by 18 U.S.C. § 3500 ("3500 material"), the defendant withdrew his request for a hearing.

On February 7, 2011, Forbes was sentenced to 60 months of imprisonment to be followed by five years of supervised release. During the sentencing proceeding, the Court explained that the 3500 material confirmed the information contained in the Probation Department's reports about the defendant and in the Government's sentencing memorandum. The defendant did not have a good record of attending treatment, lied to his probation officer, tried to defeat a lie detector test, and continued to engage in a pattern of risky conduct. Failure to take seriously the terms of probation was especially serious and worrisome in light of the defendant's sexual interest in prepubescent females and cognitive distortions with respect to sexual abuse of children. The Court explained why a sentence of imprisonment was necessary to achieve individual deterrence and comply with the requirements of Section 3553(a).

Forbes appealed his conviction on the ground that it was "substantively unreasonable" because it exceeded the advisory guidelines range for a violation of probation. The judgment was ...


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