United States v. Fortier

UNITED STATES OF AMERICA, Plaintiff, v. SCOTT FRANCIS FORTIER, Defendant.

Nos. 17-CR-0096 (PJS/DTS), 21-CV-2496 (PJS)

United States District Court, D. Minnesota

December 27, 2022

Lindsey E. Middlecamp, UNITED STATES ATTORNEY'S OFFICE for plaintiff.

Aaron J. Morrison, WOLD MORRISON LAW, for defendant. ^[1]

ORDER

Patrick J. Schiltz, Chief Judge

Defendant Scott Fortier was convicted by a jury of one count of production of child pornography in violation of 18 U.S.C § 2251(a), (e) and one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). ECF Nos. 41, 88. The Court sentenced Fortier to concurrent sentences of 300 months on the production charge and 240 months on the possession charge. ECF No. 130 at 2. The United States Court of Appeals for the Eighth Circuit affirmed Fortier's conviction on direct appeal, and the United States Supreme Court denied his petition for a writ of certiorari. ECF Nos. 167, 170.

This matter is before the Court on Fortier's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. On January 12, 2022, the Court entered an order denying Fortier's motion with respect to all of his claims save for (1) his claim that his attorney was ineffective because he failed to ask the Court to apply § 5G1.3 of the United States Sentencing Guidelines; and (2) his claim that the Court erred in not applying that provision despite not having been asked to do so. ECF No. 177. As to those claims, the Court appointed an attorney to represent Fortier and received additional briefing. After submitting briefs, the parties agreed that no additional record, discovery, or evidentiary hearing is necessary. ECF No. 188. In the meantime, Fortier filed a pro se amended motion adding further details to some of the claims that the Court had already denied as well as a new claim challenging the amount of the monetary assessment that the Court imposed under the Justice for Victims of Trafficking Act (“JVTA”), 18 U.S.C. § 3014(a). ECF No. 186.

For the reasons explained below, the Court holds that Fortier received ineffective assistance of counsel when his attorney failed to argue, pursuant to § 5G1.3(c), that the Court should impose his federal sentence to run concurrently with his anticipated state sentence. As a remedy, the Court orders that the judgment be amended to state that his federal sentence is deemed to run concurrently to the state sentence that he later received. In light of this holding, Fortier's claim that the Court erred in failing to apply § 5G1.3(c) on its own motion is moot.^[2] Finally, the Court denies Fortier's remaining amended (and new) claims on the merits.

I. BACKGROUND

On the evening of September 9, 2016, Fortier invited two minors with whom he was acquainted to his home. During that night and into the early hours of the following morning, he supplied the minors with alcohol and recorded sexually explicit images and videos of them, including videos of himself sexually penetrating them. After one of the minors reported Fortier to law enforcement, subsequent searches of his home uncovered thousands of images and videos of child pornography stored on electronic media.

Fortier was charged with production and possession of child pornography. At trial, Fortier testified-utterly implausibly-that he had accidentally recorded the videos, that he had accidentally downloaded the child pornography, and that he thought that he had deleted the child pornography. The jury convicted him on both counts. As noted, the Court sentenced Fortier to a total of 300 months, which was far below the 600-month sentence recommended by the Guidelines. ECF No. 134 ¶ 131; ECF No. 148 at 14.

II. ANALYSIS

A. U.S.S.G. § 5G1.3 and Ineffective Assistance of Counsel

At the time that Fortier was sentenced on his federal charges, he was facing a number of state charges, including charges that appeared to relate to the federal charges. ECF No. 105 at ¶¶ 95-96; ECF No. 134 ¶¶ 95-96. Fortier contends that his counsel was ineffective in failing to argue that, pursuant to § 5G1.3(c) of the Guidelines, his federal sentences should run concurrently with his anticipated state terms of imprisonment.

1. Standard of Review

To prevail on a claim of ineffective assistance of counsel, a defendant must establish (1) “that counsel's representation fell below an objective standard of reasonableness” and (2) prejudice, that is, “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ....” Id. at 689. An attorney's failure to raise a particular legal argument is outside the range of reasonable professional assistance only if there is “controlling legal authority that directly supported [the argument], or . . . controlling authority that ‘clearly portend[s]' that such an argument would have been successful.” New v. United States, 652 F.3d 949, 953 (8th Cir. 2011) (quoting Fields v. United States, 201 F.3d 1025, 1028 (8th Cir. 2000)); see also Deck v. Jennings, 978 F.3d 578, 583 (8th Cir. 2020) (“As we have explained, failing to make an argument that would require the resolution of unsettled legal questions is generally not outside the wide range of professionally competent assistance.” (citations and quotation marks omitted)), cert. denied sub nom. Deck v. Blair, 142 S.Ct. 186 (2021).

2. Ineffective Assistance

Section 5G1.3(c) provides as follows:

If subsection (a) does not apply, and a state term of imprisonment is anticipated to result from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.

For this provision to apply, then, three criteria must be met: (1) subsection (a) must not apply; (2) there must be a state term of imprisonment that is “anticipated”; and (3) the anticipated state term of imprisonment must result from an offense that is “relevant conduct” to the federal offense.

There is no dispute that subsection (a) does not apply in this case. Likewise, there is no dispute that the conduct underlying the relevant state charges pending at the time of Fortier's federal sentencing constituted “relevant conduct” to his federal charges. ECF No. 180 at 8; see ECF No. 105 at ¶¶ 95-96; ECF No. 134 ¶¶ 95-96. That leaves the requirement that a state term of imprisonment must have been “anticipated.”

Although the government does not really seem to dispute that a state term of imprisonment was “anticipated,” the government points out that, at the time of the federal sentencing hearing, Fortier had not yet been convicted of any of the pending state charges.^[3] The only potential issue, therefore, is whether it was sufficiently clear, at the time of Fortier's sentencing, that a state term of imprisonment was “anticipated” within the meaning of § 5G1.3(c) such that the failure to seek application of the provision constituted ineffective assistance of counsel.

Section 5G1.3(c) was added to the Guidelines in 2014 following the Supreme Court's decision in Setser v. United States, 566 U.S. 231 (2012). U.S.S.G., App. C Supp., Amend. 787 (Nov. 1, 2014); United States v. Olmeda, 894 F.3d 89, 92 (2d Cir. 2018) (per curiam) (“In the wake of Setser, the United States Sentencing Commission amended U.S.S.G. § 5G1.3 by adding subsection (c) ....”). Setser held that a district court, when imposing a prison sentence, has authority to impose the sentence to run either concurrently with or consecutively to an anticipated state sentence that has not yet been imposed. Setser, 566 U.S. at 236-37. Setser explained that this power is grounded in district courts' traditional authority over matters of criminal sentencing. Id. at 235-36.

Prior to Setser, some courts had concluded that 18 U.S.C. § 3584 deprived district courts of the authority to resolve the concurrent-versus-consecutive issue when the state sentence had not yet been imposed. See Olmeda, 894 F.3d at 92. Setser clarified that § 3584 did not affect district courts' traditional discretion in this area. Setser, 566 U.S. at 236-41.

Long before Setser, the Eighth Circuit had held that, notwithstanding § 3584, federal district courts have the authority to impose a sentence to run either concurrently with or consecutively to an anticipated state sentence. See United States v. Mayotte, 249 F.3d 797, 798-99 (8th Cir. 2001) (per curiam). Setser thus did not represent a change in Eighth Circuit law. See Elwell v. Fisher, 716 F.3d 477, 483 (8th Cir. 2013) (“in Setser v. United States, the U.S. Supreme Court resolved the circuit split, agreeing with the position adopted in our circuit and holding that federal district courts possess the authority to order federal sentences to run concurrent with or consecutive to yet-to-be-imposed state sentences”). And as Mayotte makes clear, district courts may exercise this authority even when the defendant has not yet been convicted of the state offense. Mayotte, 249 F.3d at 798-99.

Following Setser, § 5G1.3(c) was adopted to ensure that defendants whose state and federal sentences arise out of the same course of conduct are treated similarly regardless of the order in which the sentences are imposed. See U.S.S.G., App. C Supp., Amend. 787 (Nov. 1, 2014) (“By requiring courts to impose a concurrent sentence in these cases, the amendment reduces disparities between defendants whose state sentences have already been...