United States v. Callis

UNITED STATES OF AMERICA v. STEPHEN T. CALLIS, Petitioner.

Criminal No. 3:16-cr-003

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

March 15, 2019

OPINION

The petitioner, Stephen T. Callis, moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Dk. No. 74.) In his § 2255 motion, Callis alleges four claims of ineffective assistance of counsel. Because Callis fails to establish either (1) that his attorney's conduct fell below that of an objectively reasonable attorney or (2) prejudice resulting from any of the alleged deficiencies in his counsel's performance, the Court will deny the § 2255 motion.

I. BACKGROUND

In 2016, Callis pled guilty to a two-count indictment for (1) coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b), and (2) sex trafficking of children in violation of 18 U.S.C. § 1591(a). Each conviction mandates, among other things, ten years to life in prison and restitution. In his plea agreement with the government and in his plea hearing before the Court, Callis agreed that the government could prove all elements of each offense, and he affirmed that he understood the following: (1) the penalties for violating each statute, including the minimum and maximum terms of imprisonment and restitution; (2) any calculation of his advisory sentencing range under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") by his lawyer represented only an estimate and did not bind the Court; (3) the Presentence Investigation Report ("PSR") ultimately determined his advisory sentencing range under the Guidelines; and (4) the Court could impose a sentence above or below the Guidelines range. (Dk. No. 27, ¶¶ 1, 3, 5, 9); Plea Hr'g Tr. 12:25-13:19, 14:17-24, 16:24-17:2, 17:13-19:2, 22:14-23, 28:2-13, Mar. 3, 2016 (Dk. No. 60).

The PSR calculated a Guidelines range of 235-293 months based on a criminal history category of I and an offense level of 38, which included a five-point enhancement under U.S.S.G § 4B1.5 for a pattern of prohibited sexual conduct. (Dk. No. 49, ¶¶ 32, 64, 65.) At the sentencing hearing, Callis' attorney moved for a downward variance from the Guidelines range, arguing that the enhancement, though applicable to Callis, resulted in a sentence greater than necessary to punish him.¹ Sentencing Hr'g Tr. 24:1-33:12, June 20, 2016 (Dk. No. 59). The Court denied the downward variance motion, sentenced Callis to 240 months imprisonment, and ordered $32,500 in restitution. The Fourth Circuit dismissed in part and affirmed in part Callis' appeal.

Callis then filed this § 2255 motion, alleging four claims of ineffective assistance of counsel.² The bulk of his motion deals with his claim that the indictment failed to list an essential element of the child sex trafficking count—that the victim's age fell between fourteen and eighteen. Callis also alleges that his attorney failed to inform him both about his eligibilityfor an enhancement and that he would have to pay restitution. Lastly, Callis argues that his attorney erred by "moving for a downward departure on [his] sentence, even though he was not eligible for such a departure after receiving the § 4B1.5 enhancement." (Dk. No. 76, at 12.)

II. STANDARD OF REVIEW

Under 28 U.S.C. § 2255(a), a federal prisoner may challenge the legality of his sentence on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States."³ 28 U.S.C. § 2255(a). A prisoner can prove such a violation by demonstrating that he received ineffective assistance of counsel in violation of the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668, 686 (1984) ("[T]he [Sixth Amendment] right to counsel is the right to the effective assistance of counsel." (emphasis added)). To succeed on an ineffective assistance claim, the petitioner must satisfy two elements. First, the petitioner must demonstrate that his "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. To satisfy this first prong—the performance prong—the petitioner must overcome the "'strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). Second, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. When, as here, a petitioner challenges a conviction entered after a guilty plea, the second prong—the prejudice prong—"is slightly modified" in that the petitioner "must show that there is a reasonableprobability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988).

Alleging ineffective assistance of counsel following a guilty plea entered during a properly conducted Rule 11 plea colloquy requires a petitioner to overcome the "formidable barrier" of his sworn testimony at that proceeding. United States v. White, 366 F.3d 291, 295-96 (4th Cir. 2004). As the Fourth Circuit has explained, "[a]bsent clear and convincing evidence to the contrary, a defendant is bound by the representations he makes under oath during a plea colloquy." Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1299 (4th Cir. 1992). Accordingly, a "court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the [petitioner's] sworn statements." United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005).

III. DISCUSSION

A. Sufficiency of the Indictment

Callis first claims that the indictment lacked an essential element as to the child sex trafficking count, 18 U.S.C. § 1591(a), and that his counsel's failure to object to the indictment constituted ineffective assistance of counsel. An "indictment must include every essential element of an offense, or else the indictment is invalid; and mere reference to the applicable statute does not cure the defect." United States v. Kingrea, 573 F.3d 186, 191 (4th Cir. 2009). Section 1591 provides in relevant part:

(a) Whoever knowingly--

(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),

knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).

(b) The punishment for an offense under subsection (a) is--

(1) if the offense was effected by means of force, threats of force, fraud, or coercion described in subsection (e)(2), or by any combination of such means, or if the person recruited, enticed, harbored, transported, provided, obtained, advertised, patronized, or solicited had not attained the age of 14 years at the time of such offense, by a fine under this title and imprisonment for any term of years not less than 15 or for life; or

(2) if the offense was not so effected, and the person recruited, enticed, harbored, transported, provided, obtained, advertised, patronized, or solicited had attained the age of 14 years but had not attained the age of 18 years at the time of such offense, by a fine under this title and imprisonment for not less than 10 years or for life.

18 U.S.C. § 1591(a)-(b).⁴ Thus, a conviction for child sex trafficking requires the offender to (1) knowingly take one or more of the actions listed in § 1591(a) against another person ("victim"); (2) know or recklessly disregard the fact that the victim is a minor and "will be caused to engage in a commercial sex act;" and (3) affect interstate commerce. Id. § 1591(a)(2). Section 1591(b) lists two alternative penalties for a violation of § 1591(a). If the victim is under the age of eighteen but older than fourteen, the statute imposes a minimum of ten years imprisonment. Id. § 1591(b)(2). If, however, the victim has not reached the age of fourteen, the statute provides fora minimum of fifteen years imprisonment. Id. § 1591(b)(1). Both punishments carry a maximum term of life imprisonment. Id. § 1591(b)(1)-(2).

In this case, neither the indictment nor the statement of facts alleged that the victim had in fact reached the age of fourteen but had not reached the age of eighteen. Instead, each alleged only that Callis knew that the victim had not reached the age of eighteen.⁵ Callis argues that by failing to allege that "the victim was over 14, but under 18," the indictment lacked an essential element, rendering it invalid. (Dk. No. 76, at 9.) According to Callis, his attorney's failure to object to the alleged defective indictment therefore constituted ineffective assistance of counsel.

Callis' argument lacks merit. Section 1591(a) requires the government to prove three elements, and § 1591(b) imposes two different mandatory minimum sentences based on the victim's age. The government concedes that if it had attempted to sentence Callis under § 1591(b)(1)—a fifteen-year minimum—it would have had to establish the additional element that "the defendant trafficked a person who had not attained the age of 14." (Dk. No. 79, at 5); see Alleyne v. United States, 570 U.S. 99, 103 (2013) ("[A]ny fact that increases the mandatory minimum is an 'ele...