United States v. Defoggi

1

UNITED STATES OF AMERICA, Plaintiffs, v. TIMOTHY DEFOGGI, Defendant.

No. 8:13CR105

United States District Court, D. Nebraska

June 1, 2022

MEMORANDUM AND ORDER

Joseph F. Bataillon Senior United States District Judge

This matter is before the Court on defendant Timothy DeFoggi's Motion for Reconsideration (Filing No. 392); Motion for Compassionate Release (Filing No. 394); Motion for Copies (Filing No. 396); Motion to Correct Clerical Error (Filing No. 399); Request for 285 Forms (Filing No. 406) and Petitions for Writ of Mandamus (Filing Nos. 397 and 405). For the reasons stated, the Motion for Compassionate Release is granted, and the remaining motions are denied.

I. BACKGROUND

Following a jury trial, defendant Timothy DeFoggi was found guilty of the following Counts of the Indictment: Count I (Knowingly engaging in a child exploitation enterprise), Count II (Conspiracy to advertise child pornography), Count III (Conspiracy to distribute child pornography), Count IV (Access with intent to view child pornography), Count V (Access with intent to view child pornography), Count VI (Access with intent to view child pornography), and Count VII (Access with intent to view child pornography). The Court vacated the convictions on Counts II and III as lesser-included offenses of Count I. Filing No. 277. On January 6, 2015, the Court sentenced the Defendant to 300 months' incarceration on Count I, and 120 months' incarceration on each of the remaining Counts all to be served concurrently, followed by supervised release for his lifetime on each count, also to be served concurrently. Filing No. 290.

DeFoggi filed a timely appeal, and the U.S. Court of Appeals for the Eighth Circuit affirmed in part and reversed in part vacating his conviction on Count I (Knowingly engaging in a child exploitation enterprise), and remanded the case for re-sentencing. United States v. DeFoggi, 839 F.3d 701 (8th Cir. 2016). The Court resentenced DeFoggi to 75 months on Counts IV, V, VI, and VII, each, to run consecutively, for a total term of incarceration of 300 months, followed by supervised release for his lifetime on each count, to be served concurrently. Filing No. 326.

DeFoggi again timely appealed, arguing that receiving the same sentence after resentencing was cruel and unusual under the Eighth Amendment. The Eighth Circuit affirmed the amended judgment of the Court. United States v. DeFoggi, 878 F.3d 1102 (8th Cir. 2018). The Eighth Circuit rejected Defendant's Eighth Amendment claim and denied DeFoggi's motion for rehearing en banc. Id.; see also Filing No. 339.

DeFoggi thereafter filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (§ 2255 Motion), Filing No. 345. His § 2255 Motion asserted sixteen grounds based on alleged ineffective assistance of counsel at trial, sentencing, and on appeal. DeFoggi's grounds included the assertion that his counsel failed to challenge sentencing enhancements or seek a downward departure or variance based on his government service. The Court concluded these assertions were contradicted by the record and without merit. Filing No. 346 at 6-7; see also Def.'s Statement Regarding Presentence Investigation Report, Filing No. 267; Def.'s Sentencing Mem., Filing No. 269; Def.'s Sentencing Exs., Filing Nos. 270, 275.

Defendant's § 2255 Motion asserted no other deficiencies in sentencing. The Court denied the § 2255 Motion and the Eighth Circuit summarily affirmed. See Filing No. 381.

DeFoggi thereafter filed a pro se Motion to Expunge. Filing No. 386. He requested that the Court use its “inherent equitable power” to expunge his criminal record of charges related to Counts I through III of the Indictment. DeFoggi did not expressly identify the record he wished to be expunged. The Court denied the Motion, concluding that it lacked jurisdiction to expunge executive branch records of the original convictions. Filing No. 391.

Now before the Court^[1] are DeFoggi's Motions to Reconsider the denial of his motion to expunge and for Compassionate Release. He also requests copies of several sealed orders, requests to correct a clerical error, and makes a statement about service of United States Marshal Form 285. Finally, DeFoggi has submitted several petitions for a writ of mandamus requesting that the Court order the Probation and Pretrial Services Office to correct errors in Defendant's Presentence Investigation Report. The Court addresses each of these requests in turn.

II. MOTION TO RECONSIDER

DeFoggi first asserts the Court erred in concluding that it did not have power to expunge his criminal records solely on equitable grounds. He insists that his convictions were illegal and vacated on constitutional grounds; therefore, the Court has the power to expunge his criminal records related to these convictions. However, DeFoggi also seems to have confirmed that the records he seeks to expunge are an archive of press releases on the Department of Justice website, that includes references to his original convictions, including those that were overturned. See Filing No. 392 at 5. Even if this Court had power to expunge DeFoggi's criminal records, he presents no basis for the Court to order the DOJ to “expunge” references to his overturned convictions in its press releases. In sum, that the press releases are records that contain information about crimes does not make them “criminal records” for purpose of a motion to expunge.

A criminal record is “[a]n official record kept by the police of any crimes a person has committed.” Black's Law Dictionary (11th ed. 2019). While the DOJ's archived press releases might be part of the public record, DeFoggi presents no authority that press releases in this context are criminal records. The Eighth Circuit has recognized that “[a]n expunged arrest and/or conviction is never truly removed from the public record.” Eagle v. Morgan, 88 F.3d 620, 626 (8th Cir. 1996) (“Just as the judiciary cannot suppress, edit, or censor events which transpire in proceedings before it, neither does the legislature possess the Orwellian power to permanently erase from the public record those affairs that take place in open court.” (internal marks and citations omitted)). Even if the Court had power to expunge DeFoggi's criminal records related to his vacated conviction and even if expungement were appropriate, the Court does not have the power to direct the DOJ to delete its press release archive concerning DeFoggi.

III. MOTION FOR COMPASSIONATE RELEASE

The Court next addresses DeFoggi's motion for compassionate release. In Section 603 of the First Step Act, Congress amended 18 U.S.C. § 3582(c)(1)(A) to permit defendants to move a sentencing court for compassionate release. Congress designed § 3582(c)(1)(A), for “[i]ncreasing the Use and Transparency of Compassionate Release.” § 603(b), 132 Stat. at 5239. Previously, defendants could petition only the BOP Director, who could then make a motion, at his or her discretion, to the district court. See U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.4 (U.S. Sentencing Comm'n 2018).

18 U.S.C. § 3582(c)(1)(A) permits defendants to move a sentencing court for compassionate release “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons (BOP) to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier.” DeFoggi submitted evidence that he submitted a request to the warden of his facility and more than thirty days have elapsed since that time. See Filing No. 394 at 22-23. The Court is satisfied that DeFoggi satisfactorily exhausted his administrative remedies.

Although DeFoggi has exhausted his administrative remedies, he must still demonstrate that a reduction in sentence is warranted. Compassionate release provides a path for defendants with “extraordinary and compelling reasons” to leave prison early. § 3582(c)(1)(A)(i). Such a sentence reduction must comply with the 18 U.S.C. § 3553(a) factors and “applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). The Court addresses whether there are any applicable policy statements, extraordinary and compelling reasons, and the balancing of the § 3553(a) factors in turn.

A. Applicable Policy Statements

First the Court addresses whether there are any policy statements which it must consider in conjunction with DeFoggi's motion. The Sentencing Guidelines contain a policy statement identifying four general circumstances warranting compassionate release: the defendant's terminal illness or other serious medical condition; the defendant's advanced age and deteriorating health; dire family circumstances; and other “extraordinary and compelling” reasons. U.S.S.G. § 1B1.13 cmt. n.1 (2018). However, the policy statement at U.S.S.G. § 1B1.13 has not been amended since passage of the First Step Act and thus states that it applies only to a request for compassionate release made “[u]pon motion of the Director of the Bureau of Prisons.” Numerous courts that have considered § 1B1.13 have concluded it does not constitute an “applicable policy statement” under 18 U.S.C. § 3582(c)(1)(A) for purposes of a compassionate-release motion made by a defendant rather than the BOP director. See United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020) (“[T]he First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release. Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court...