Bjornstad v. United States

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Before the Court is Defendant Brandon Lee Bjornstad's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 filed on November 12, 2020. Doc. No. 76. The Government responded in opposition to the motion on March 9, 2021. Doc. No. 82. For the reasons below, the motion is denied.

I. BACKGROUND

Through various Internet applications, Bjornstad induced hundreds of children to engage in sexually explicit conduct. Doc. No. 56, ¶ 132. He surreptitiously recorded the acts and then shared the videos and images with participants in online chatrooms. Id. ¶ 5. Many times, he sent the media to children in efforts to receive reciprocal sexual content from them. Id. ¶ 4.

In May 2017, law enforcement executed a search warrant at Bjornstad's residence in Neche, North Dakota. Id. ¶ 6. The search yielded cellphones, computer devices, and a notebook

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with screennames and passwords. Id. ¶ 7. A forensic evaluation of the devices revealed thousands of videos and images of child pornography, much of it self-produced. Id.

The investigation culminated in an 18-count Second Superseding Indictment. Doc. No. 36. Counts 1-8 and 18 charged sexual exploitation of minors, in violation of 18 U.S.C. §§ 2251(a) and 2251(e); Count 9 charged extortion, in violation of 18 U.S.C. § 875(d); Count 10 charged receipt and distribution of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A)¹ and 2252A(b)(1); and Counts 11-17 charged possession of materials containing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). Id. Pursuant to a plea agreement, Bjornstad pleaded guilty to all 18 offenses. Doc. No. 48.

The presentence investigation report ("PSIR") delineated the offenses into 12 count groups for purposes of calculating the advisory sentencing guidelines range. See USSG § 3D1.1(a)(1). After factoring in enhancements, applying the multiple count adjustment, and accounting for acceptance of responsibility, the PSIR arrived at a total offense level of 48. Doc. No. 56, ¶¶ 127, 129, 130. The PSIR therefore treated the total offense level as 43—the highest possible. Id. ¶ 131. With Bjornstad designated in criminal history category II, the guidelines called for a sentence of life imprisonment. Id. ¶ 158. Yet the most serious offense, sexual exploitation of minors, carried a 30-year statutory maximum, taking an outright life sentence off the table. See id.

At sentencing, the Court characterized Bjornstad's crimes as "egregious" and "reprehensible," remarking that his predatory conduct against children "isn't fathomable or acceptable in our society." Doc. No. 79, p. 50. Upon considering the statutory sentencing factors,

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the Court expressed an intent to impose consecutive sentences to effectuate the recommended term of life imprisonment. Id. at 52; see 18 U.S.C. § 3584(a); USSG § 5G1.2(d). Accordingly, the Court imposed consecutive 30-year sentences on Counts 1 and 2, as well as concurrent sentences at the statutory maximums on all remaining counts. Doc. No. 74. The Court entered judgment on November 14, 2019. Id.

Bjornstad did not pursue a direct appeal. The judgment became final after the window to appeal lapsed on November 28, 2019. Bjornstad timely submitted his 28 U.S.C. § 2255 motion on November 12, 2020. Doc. No. 76.

II. LEGAL STANDARD

A motion under 28 U.S.C. § 2255 affords relief "in several circumstances, including cases shown to contain jurisdictional errors, constitutional errors, and errors of law." Raymond v. United States, 933 F.3d 988, 991 (8th Cir. 2019) (citing 28 U.S.C. § 2255(b)). "Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Fletcher v. United States, 858 F.3d 501, 505 (8th Cir. 2017) (quoting Jennings v. United States, 696 F.3d 759, 762 (8th Cir. 2012)). An evidentiary hearing is required...