Phillips v. United States

1

JOSHUA ANDREW PHILLIPS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 1:23-cv-163-MOC, 1:21-cr-68-MOC-WCM-1

United States District Court, W.D. North Carolina, Asheville Division

April 16, 2024

REDACTED ORDER

MAX O COGBURN JR. UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Petitioner's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence [Doc. 1]. Also pending is the Petitioner's Motion for Status Update. [Doc. 10].

I. BACKGROUND

Petitioner was charged with: attempt to distribute child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) (Count One); sexual exploitation of children in violation of 18 U.S.C. § 2251(a) (Counts Two and Three); knowingly receiving and attempting to receive child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) (Count Four); and possession with intent to view child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count Five). [1:21-cr-68 (“CR”) Doc. 5]. Petitioner pleaded guilty to Count Two pursuant to a written Plea Agreement in exchange for the Government's dismissal of the remaining charges. [CR Doc. 20 at ¶¶ 1-2]. He admitted that he is, in fact, guilty as charged in Count Two. [Id. at ¶ 1]. The Plea Agreement provides that Petitioner's breach of the agreement would “permit the United States to proceed on any dismissed, pending, superseding or additional charges...” and, if applicable, an Information pursuant to 21 U.S.C § 851. [Id. at ¶ 4]. The Plea Agreement explains that the offense is punishable by a minimum mandatory of 15 years and not more than 30 years' imprisonment, a $250,000 fine or both and, a maximum supervised release term of life. [Id. at ¶ 5].

The United States agreed that Petitioner's plea is timely pursuant to U.S.S.G. § 3E1.1 if applicable. [Id. at ¶ 8]. The parties remained free to seek a departure or variance from the applicable guideline range at sentencing, and to argue their respective positions regarding any other specific offense characteristics, reductions, and enhancements to the offense level. [Id.].

The Plea Agreement further provides that: the Court would consider the advisory U.S. Sentencing Guidelines; the Court had not yet determined the sentence; any estimate of the likely sentence is a prediction rather than a promise; the Court would have the final discretion to impose any sentence up to the statutory maximum for each count; the Court would not be bound by the parties' recommendations or agreements; and Petitioner would not be permitted to withdraw his plea as a result of the sentence imposed. [Id. at ¶ 7].

The Plea Agreement provides that there is a factual basis for the guilty plea, and that Petitioner read and understood the written Factual Basis that was filed with the Plea Agreement, which may be used by the Court, U.S. Probation Office, and United States without objection for any purpose, including to determine the applicable advisory guideline range or the appropriate sentence. [Id. at ¶¶ 10-11]. The Plea Agreement further provides that the Factual Basis does not necessarily represent all of the conduct relevant to sentencing, and that the Government may submit a Statement of Relevant Conduct to the Probation Office and present the Court with additional relevant facts for purposes of sentencing. [Id. at ¶ 12].

The Plea Agreement sets forth the rights Petitioner was waiving by pleading guilty, including the right: to withdraw the guilty plea once the Magistrate Judge has accepted it; to be tried by a jury; to be assisted by an attorney at trial; to confront and cross-examine witnesses; and not be compelled to incriminate himself. [Id. at ¶¶ 13-15]. The Plea Agreement acknowledges that Petitioner had discussed with defense counsel his post-conviction and appellate rights, and he expressly waived those rights except for claims of ineffective assistance of counsel or prosecutorial misconduct. [Id. at ¶¶ 16-18]. The Plea Agreement provides that “[t]here are no agreements, representations, or understandings between the parties in this case, other than those explicitly set forth in this Plea Agreement, or as noticed to the Court during the plea colloquy and contained in writing in a separate document signed by all parties.” [Id. at ¶ 23].

The Factual Basis that was filed along with the Plea Agreement provides in relevant part:

[Redacted]

[CR Doc. 19 at 2] (paragraph numbers omitted).

On May 20, 2022, a Rule 11 hearing came before a United States Magistrate Judge. See [CR Doc. 40] (Transcript). Petitioner stated under oath that he had taken medication within the past 48 hours, but that those medications do not impair his ability to think or to understand what is happening around him. [Id. at 5]. He agreed that his mind was clear and that he understood that he was there to enter a guilty plea in his case. [Id.]. Petitioner agreed that he received a copy of the Bill of Information, discussed it with counsel, and fully understood the charge and the maximum penalty that could apply to him. [Id. at 6-9]. He admitted that he is, in fact, guilty of the charged offense. [Id. at 12]. Petitioner agreed that: he understood that pleading guilty may cause him to be deprived of certain civil rights; he discussed with counsel how the sentencing guidelines may apply to his case; the Court would not be able to determine the sentencing guideline range until a PSR has been prepared and Petitioner has had an opportunity to comment on it; he may receive a sentence that is different from that called for by the guidelines; and he would have no right to withdraw the plea even if he receives a sentence more severe than he expects. [Id. at 10-11]. Petitioner acknowledged the rights he was waiving by pleading guilty, and stated his understanding that the case would proceed directly to sentencing. [Id. at 12].

The Plea Agreement was summarized in open court. [Id. at 13-14]. Petitioner confirmed that he understood and agreed with the terms of the Plea Agreement, including the waiver of his appellate and post-conviction rights. [Id. at 15]. Petitioner stated that he read the Factual Basis, understood it, and agreed with it. [Id. at 15-16]. Petitioner stated that nobody threatened, intimidated, or forced him to plead guilty, and that nobody made any promises of leniency or a light sentence to induce him to plead guilty. [Id.]. Petitioner agreed had enough time to discuss any possible defenses with his lawyer, was satisfied with counsel's services. [Id. at 16-17]. Counsel agreed that she had reviewed each of the terms of the Plea Agreement with Petitioner and that she was satisfied that he understood those terms. [Id. at 17].

The Presentence Investigation Report (PSR) includes the facts set forth in the Factual Basis. [CR Doc. 31 at ¶¶ 15-17]. It also includes a Statement of Relevant Conduct that describes the evidence in greater detail, including: acts involving MMV1 and MMV2, [Redacted] [Redacted] [id. at ¶¶ 19-26]. The Statement of Relevant Conduct relates that, when investigators spoke to Petitioner's parents [Redacted] [Id. at ¶ 20]. The PSR includes Petitioner's written statement to the probation officer stating: “I accept responsibility for my offense of conviction, as described in the Factual Basis.” [Id. at¶ 36].

The PSR scored the base offense level for each victim as 32 because the offense is a violation of 18 U.S.C. § 2251. [Id. at ¶¶ 40, 49]. For victim one, the PSR added: [Redacted] [Id. at ¶¶ 40-44]. For victim two, the PSR added: [Redacted] [Redacted] [id. at ¶¶ 50-53]. This resulted in an adjusted offense level subtotal of 44 for each victim. [Id. at ¶¶ 48, 57]. Two levels were added for a multiple count adjustment, resulting in a combined adjusted offense level of 46. [Id. at ¶¶ 59-60]. Five levels were added because Petitioner is a repeat and dangerous sex offender against minors pursuant to U.S.S.G. § 4B1.5(b)(1). [Id. at ¶ 61]. Three levels were deducted for acceptance of responsibility. [Id. at ¶¶ 62, 63]. Because the total offense level exceeded 43, the offense level was treated as 43. [Id. at ¶ 64]. Petitioner had zero criminal history points and a criminal history category of I. [Id. at ¶ 71].

The PSR's Offender Characteristics section notes that:

[Redacted] Petitioner expressed a desire to receive mental health treatment while incarcerated; Petitioner graduated from high school and received a CNA license, although he “struggled” in school. [Redacted]

[Id. at ¶¶ 88, 90, 92-93].

The resulting guideline imprisonment term was life, however, the statutorily authorized maximum sentence is 30 years and, accordingly, the applicable guideline range was 30 years pursuant to U.S.S.G. § 5G1.1(a), and a life term of supervised release. [Id. at ¶¶ 106, 109]. The PSR notes the Impact of the Plea Agreement as follows:

Pursuant to the written Plea Agreement, Counts 1, 3, 4, and 5 of the Superseding Indictment are to be dismissed. Counts 1 and 4 carried a minimum penalty of 5 years and a maximum penalty of 20 years imprisonment per count. Count 3 carried a minimum of 15 years and a maximum of 30 years imprisonment. Count 5 carried a maximum penalty of 20 years imprisonment. Had Phillips been found guilty or pled guilty to the remaining counts, he would have been exposed to the greater statutory penalties, resulting in a maximum statutory penalty of up to 1,440 months; however, inasmuch as the total offense level for Count 2 produced the highest permissible offense level, the Plea Agreement otherwise had no impact on the guideline range.

[Id. at ¶ 107] (emphasis added).

Defense counsel moved for a downward variance to 180 months' imprisonment based on factors including Plaintiff's mental and emotional condition. [CR Doc. 33]. As to Petitioner's history and characteristics, counsel...