Freeman v. United States

1

MICHAEL A. FREEMAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 2:19-CV-00008-JRG-CRW

United States District Court, E.D. Tennessee, Greeneville

December 15, 2023

MEMORANDUM OPINION

J RONNIE GREER, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Petitioner Michael A Freeman's Memrandum [sic] in Support of Motion to Vacate Set Aside, or Correct Sentence Filed by a Person Custody Pursuant to 28 U.S.C. § 2255 [Doc. 1], Mr. Freeman's Amended or Supplemental Motion to Vacate Sentence under 28 U.S.C. § 2255 [Doc. 7], and the United States' Response [Doc. 25]. For the reasons herein, the Court will deny Mr. Freeman's motion.

I. Background

In 2014, the United States indicted Mr. Freeman and his co-defendant Crystal Lozano on charges of producing, distributing, receiving, and possessing child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2 (Count One), 18 U.S.C. § 2252A(a)(2) (Count Three), and 18 U.S.C. § 2252A(a)(5)(B) (Count Four). [Superseding Indictment, Doc. 14, at 2-3, No. 2:14-CR-00073-2-JRG].^[1] After unsuccessfully moving, through his attorney, to quash or dismiss the indictment,^[2] Mr. Freeman entered into a plea agreement with the United States, though the Court ordered two competency examinations before holding a change-of-plea hearing. [Orders for Mental Exam, Docs. 42 & 78, No. 2:14-CR-00073-2-JRG]. He pleaded guilty to knowingly possessing child pornography, in violation of § 2252A(a)(5)(B). [Plea Agreement, Doc. 67, at 1, No. 2:14-CR-00073-2-JRG; Minute Entry, Doc. 105, No. 2:14-CR-00073-2-JRG]. The plea agreement's factual basis states:

On November 1, 2013, a forensic interview was conducted with a minor child at the Children's Advocacy Center in Mosheim, Tennessee. During the interview, the child indicated that photographs had been taken of her private parts [pointing to the vagina on an anatomical drawing].

On April 1, 2014, the Greeneville Police Department, went to the residence of co-defendant Crystal Lozano, 406 Elk Street, Apartment Q92, Greeneville, Tennessee, to speak with Lozano about a statement Lozano made to Tennessee Department of Children's Services regarding Lozano taking child pornographic photographs of the aforementioned child, and sending them to her boyfriend, the defendant. Lozano signed a waiver of her rights and wrote a confession statement.

Lozano admitted in her confession statement that she took child pornographic pictures at the request of the defendant. Lozano stated that, “I took 3 pics of her with her vagina opened and one with just her panties pulled to the side,” referring to pictures taken of a prepubescent child. Lozano further admitted that, a couple of days later, she took some additional photos of the child while the child was sleeping. At the time, the child had only a night shirt and panties on. Those pictures were sent to the defendant's cellular telephone. The defendant possessed the photographs on his phone while residing in the Eastern District of Tennessee. On May 9, 2014, an examiner with the FBI conducted a forensic interview of the aforementioned minor child. During the interview, the child identified nude photos of herself, indicating that they were photos possessed by the defendant and Lozano.

On June 12, 2014, a search warrant and arrest warrant were executed at the residence of Lozano. Lozano agreed to talk with FBI agents, and admitted that she had taken photographs of a minor child's vagina. The photos were taken on a Casio Exilim C721 cellular telephone, which was manufactured outside the United States. The defendant gave Lozano the telephone. After taking the pictures, Lozano sent them to the defendant via text message to the defendant's cellular telephone.

On June 27, 2014, FBI agents in the Eastern District of Michigan executed a search warrant and arrest warrant at the residence of the defendant. Two laptop computers and a cellular telephone were seized during the search, all of which were manufactured outside the State of Tennessee. A forensic examination of the computers and cellular telephone revealed the presence of child pornography, including photographs of the aforementioned prepubescent child, which had been texted by Lozano to Freeman.

The defendant admits that he knowingly possessed visual depictions of child pornography, depicting a lascivious exhibition of the genitals of prepubescent children, and that said visual depictions traveled in interstate commerce.

[Plea Agreement at 2-3]. In the plea agreement, Mr. Freeman agreed to a waiver provision, in which he waived his right to collaterally attack his sentence and conviction but with the exception that he could pursue claims for prosecutorial misconduct and ineffective assistance of counsel. [Id. at 8].

Leading up to Mr. Freeman's sentencing, the probation officer prepared and filed a presentence investigation report, in which he applied several offense-specific enhancements: (1) a two-level increase under USSG § 2G2.2(b)(2) because the pornographic images involved a prepubescent minor, (2) a four-level increase under § 2G2.2(b)(4) because the pornographic images portrayed sadistic or masochistic conduct or other depictions of violence, (3) a five-level increase under § 2G2.2(b)(5) because Mr. Freeman engaged in a pattern of activity involving sexual exploitation or abuse of a minor, (4) a two-level increase under § 2G2.2(b)(6) because his offense involved use of a computer, and (5) a three-level increase under § 2G2.2(b)(7)(B) because his offense involved at least 150, but fewer than 300, pornographic images. [PSR, Doc. 109, ¶¶ 30-34, No. 2:14-CR-00073-2-JRG].

The probation officer also concluded that Mr. Freeman, under 18 U.S.C. § 2252A(b)(2),^[3] was subject to an enhanced statutory penalty of ten to twenty years' imprisonment because he had a prior conviction for second-degree criminal sexual conduct with a minor in Michigan-a prior conviction for which he received a prison sentence. [Id. ¶¶ 46, 68].^[4] Mr. Freeman's attorney did not dispute that Mr. Freeman was subject to this enhanced statutory penalty. With a criminal history category of II and a total offense level of 31, Mr. Freeman had an advisory guidelines range of 121 to 151 months' imprisonment, [id. ¶ 69; Statement of Reasons, Doc. 124, at 1, No. 2:14-CR-00073-2-JRG], and he faced a minimum term of supervision of five years and a maximum term of life, 18 U.S.C. § 3583(k). Applying this guidelines range and a statutory range of a mandatory minimum ten years up to a maximum of twenty, [Sent. Hr'g Tr., Doc. 142, at 49:1921], the Court sentenced him to 151 months' imprisonment and a lifetime term of supervised release, [J., Doc. 123, at 2-3, No. 2:14-CR-00073-2-JRG]. The Court also ordered him to comply with several special conditions of supervised release under Standing Order 15-06, including:

(1) The defendant shall participate in a program of sex offender mental health treatment at his/her own expense, as approved by the probation officer, until such time as he/she is discharged from treatment by the provider and as approved by the probation officer. The defendant shall comply with the policies and procedures of the treatment program. The defendant shall waive all rights to confidentiality regarding sex offender mental health treatment in order to allow release of information to the United States Probation Officer, and to authorize open communication between the probation officer and the treatment providers.

(2) The defendant shall have no direct or third-party contact, by any means available to him/her, with any victim(s) of a sex offense committed by the defendant.

(3) Other than incidental contact, which is defined as contact occurring merely by chance or without intention or calculation, the defendant shall not associate and/or be alone with children under 18 years of age, nor shall he/she be at any residence where children under the age of 18 are residing, without the prior written approval of the probation officer. If the defendant has any contact with any such minor not otherwise addressed in this condition, the defendant shall immediately leave the situation and notify the probation officer. This provision shall not apply to contact with the defendant's own minor children unless the court expressly so finds.

(4) The defendant shall not visit, frequent, or linger about any place that is primarily associated with children under the age of 18 or at which children under the age of 18 normally congregate without the prior written approval of the probation officer.

(5) The defendant shall not associate with anyone, under any circumstance, that he/she knows to be a sex offender, someone who engages in sexual activity with children under 18 years of age, or someone who condones and/or supports the sexual abuse/exploitation of children under 18 years of age (e.g. NAMBLA, BOYCHAT, Boylover Message Board), except while participating in sex offender mental health treatment or for employment purposes as approved by the probation officer.

(6) The defendant shall not possess any printed photographs, paintings, recorded material, or electronically produced material designed to produce arousal of sexual interest in children under 18 years of age. Nor shall he/she visit, frequent, or linger about any place where material designed to produce arousal of sexual interest in children is available to him/her.

(8) The defendant shall submit to a psychosexual assessment at his/her own expense, as directed by the probation officer.

(9) The defendant shall submit to polygraph testing at his/her own expense, as directed by the probation officer, in order to determine if he/she is in compliance with the conditions of supervision, or to facilitate sex offender treatment. The defendant shall be

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