United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN MAGISTRATE JUDGE
Mr. Gevock, is a federal prisoner proceeding pro se with a
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255. On June 26, 2012, pursuant to his plea
of guilty, Gevock was convicted of receipt of child
pornography, in violation of 18 U.S.C. §2252 (a)(2).
Gevock now seeks post-conviction relief on two grounds: that
his trial counsel rendered ineffective assistance; and that
his sentence was imposed in violation of his Sixth Amendment
right to trial by jury. Gevock has also filed a motion for
reasons set forth below, both motions must be denied.
26, 2012, Gevock entered a plea of guilty to one count of
receipt of child pornography, in violation of 18 U.S.C.
§ 2252(a)(2). ECF No. 27; ECF No. 59 at 17. In the
underlying plea agreement, the parties stipulated that
movant’s base offense level was 22, pursuant to United
States Sentencing Guidelines (USSG) § 2G2.2(a) (2). ECF
No. 29 at 8. The parties also stipulated to three two-level
increases in the base offense level on the grounds that the
offense involved the use of a prepubescent minor, the use of
a computer, and between 10 and 150 images. Id. The
parties reserved the right to argue for or against the
applicability of a two-level reduction in the base offense
level on the grounds that Gevock did not intend to traffic in
or distribute images, and a four-level increase in the base
level on the grounds that the images found on Gevock’s
computer depicted sadistic and masochistic conduct.
Id. at 9. The plea agreement provided that the
parties anticipated the total offense level would fall
between 26 and 32, and that the offense level adjusted
downward for Gevock’s acceptance of responsibility
would be between 23 and 29. Id.
preliminary Presentence Report was made available to the
parties on August 9, 2012. Presentence Report (PSR) at
The probation officer agreed with the parties’
stipulations, set forth above. Id. at ¶¶
15, 17, 19, 20. The probation officer found that Gevock did
not intend to traffic in, or distribute material, and that
his offense level should therefore be reduced by two levels
pursuant to U.S.S.G. § 2G2.2. Id. at ¶ 16.
The probation officer also found that a four-level increase
should be imposed because the offense involved material that
portrayed sadistic or masochistic conduct, pursuant to
U.S.S.G. § 2G2.2 (b) (4). Id. at ¶ 18. The
probation officer found applicable a two-level vulnerable
victim enhancement pursuant to U.S.S.G. § 3A1.1 because
Gevock “knew or should have known that the victims of
the offense were vulnerable.”Id. at ¶ 21.
The probation officer concluded that the total offense level
following acceptance of responsibility was 29, and the
sentencing guideline range was 87 to 108 months. Id.
at section entitled “Justification and
October 3, 2012, Gevock’s trial counsel sent an email
to the probation officer, objecting to certain portions of
the PSR. ECF No. 59 at 21. With respect to the guideline
calculations, counsel questioned the recommendation of a
four-level increase in the base offense level for images that
were sadistic or masochistic. Id. Trial counsel also
objected to some of the facts contained in the PSR.
PSR report was issued on October 23, 2012. Id. at
28. Therein, the probation officer found a total offense
level, after taking into consideration Gevock’s
acceptance of responsibility, of 29. PSR at ¶ 26. The
final PSR added six levels to the base offense level, in
accordance with the parties’ stipulations contained in
the plea agreement. Id. at ¶¶ 15, 17, 19,
20. The probation officer found a two-level reduction because
Gevock did not intend to distribute material, a four-level
increase on the grounds that the images were sadistic or
masochistic, and a two-level vulnerable victim upward
adjustment. Id. at ¶¶ 16, 18, 21. The PSR
found a guideline range of 87 to 108 months, and recommended
a sentence of 96 months imprisonment. Id. at
“Findings and Recommendation, ” and ¶ 70. It
also recommenced a lifetime period of supervised release.
Id. at ¶ 71.
trial counsel filed formal objections to the final PSR on
November 2, 2012. ECF No. 36. Therein, he objected to the
probations officer’s recommendation of a two-level
increase in the base level for a vulnerable victim, pursuant
to USSG § 3A1.1(b)(1). Id. at 1. Counsel also
objected to a recommended special condition of supervised
release that prevented Gevock from visiting regular public
libraries and book stores and another condition of release to
the extent it prevented Gevock from having contact with his
own daughter. Id. at 2. Trial counsel did not object
to the four-level increase for sadistic and masochistic
government filed a sentencing memorandum on November 6, 2012.
ECF No. 37. Therein, the government: (1) conceded that a
two-level decrease in the offense level pursuant to USSG
§ 2G2.2(b)(1) should apply because the government
probably would not be able to prove that Gevock intended to
traffic in or distribute material; (2) argued in support of
the four-level increase in the base offense level for
sadistic or masochistic images; and (3) stated that it would
not seek application of the two-level vulnerable victim
adjustment. Id. at 3, 4, 5. The government
calculated a total offense level of 27 and asked the court to
impose a sentence of 87 months imprisonment. Id. at
trial counsel filed a sentencing memorandum on November 6,
2012. ECF No. 38. Therein, he argued that the vulnerable
victim upward adjustment should not apply and that the
applicable guideline range was 70 to 87 months. Id.
at 1. He included extensive argument in support of a
requested sentence of 60 months in prison. Id. Among
other things, he argued that the four point increase in the
base level for images depicting acts of sadism or masochism
should not apply and that the general “factors to be
considered in imposing a sentence” pursuant to 18
U.S.C. § 3553 (a) supported a sentence of only 60
months. Id. at 2-6. In support of the latter
argument, Gevock submitted a psychologist’s report
under seal and exhibits documenting sexual offender treatment
programs within the United States Bureau of Prisons. ECF Nos.
was sentenced on November 13, 2012. ECF No. 46. The trial
court sustained Gevock’s objection to the two level
vulnerable victim enhancement and did not impose that
enhancement. ECF No. 59 at 28. The trial court agreed to
several other conditions requested by Gevock’s counsel,
including supervised visitation with Gevock’s daughter
and use of the public library. Id. at 29-30. The
court found that the total offense level was 27 and the
guideline range was 70 to 87 months. Id. at 31.
sentencing hearing, Gevock’s counsel argued extensively
that Gevock should receive a sentence of no higher than the
mandatory minimum of 60 months. Id. at 31-36. Prior
to imposing sentence, the trial court noted that defense
counsel had raised arguments with respect to every factor to
be considered under 18 U.S.C. § 3553 and stated that he
“appreciate[d] the discussion.” Id. at
41. The judge stated that the psychologist’s report
submitted by counsel was helpful in understanding
Gevock’s actions. Id. at 42. The judge
concluded that a high end sentence was not warranted under
the facts of the case. Id. at 43. He sentenced
Gevock to a term of 70 months in prison, 17 months less than
the sentence requested by the government. Id.
filed his § 2255 motion in this court on November 18,
2013. The government filed a response on April 10, 2014. On
April 24, 2014, Gevock filed a motion for entry of default
Law Applicable to Motions Pursuant to 28 U.S.C. §
federal prisoner making a collateral attack against the
validity of his or her conviction or sentence must do so by
way of a motion to vacate, set aside or correct the sentence
pursuant to 28 U.S.C. § 2255, filed in the court which
imposed sentence. United States v. Monreal, 301 F.3d
1127, 1130 (9th Cir. 2002). Under § 2255, the federal
sentencing court may grant relief if it concludes that a
prisoner in custody was sentenced in violation of the
Constitution or laws of the United States. Davis v.
United States, 417 U.S. 333, 344-45 (1974); United
States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).
To warrant relief, a petitioner must demonstrate the
existence of an error of constitutional magnitude which had a
substantial and injurious effect or influence on the guilty
plea or the jury’s verdict. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993); see also
United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir.
2003) (“We hold now that Brecht’s
harmless error standard applies to habeas cases under section
2255, just as it does to those under section 2254.”)
Relief is warranted only where a petitioner has shown
“a fundamental defect which inherently results in a
complete miscarriage of justice.” Davis, 417
U.S. at 346. See also United States v. Gianelli, 543
F.3d 1178, 1184 (9th Cir. 2008).
§ 2255, “a district court must grant a hearing to
determine the validity of a petition brought under that
section, ‘[u]nless the motions and the files and
records of the case conclusively show that the prisoner is
entitled to no relief.’” United States v.
Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28
U.S.C. § 2255). The court may deny a hearing if the
movant’s allegations, viewed against the record, fail
to state a claim for relief or “are so palpably
incredible or patently frivolous as to warrant summary
dismissal.” United States v. McMullen, 98 F.3d
1155, 1159 (9th Cir. 1996) (internal quotation marks
omitted). See also United States v. Withers, 638
F.3d 1055, 1062-63 (9th Cir. 2011); United States v.
Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003). To warrant
a hearing, therefore, the movant must make specific factual
allegations which, if true, would entitle him to relief.
Withers, 638 F.3d at 1062; McMullen, 98
F.3d at 1159. Mere conclusory assertions in a § 2255
motion are insufficient, without more, to require a hearing.
United States v. Hearst, 638 F.2d 1190, 1194 (9th