United States v. Gevock

          ORDER AND FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN MAGISTRATE JUDGE

         Movant, 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.^[1] 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 default judgment.

         For the reasons set forth below, both motions must be denied.

         I. Background

         On June 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.

         The preliminary Presentence Report was made available to the parties on August 9, 2012. Presentence Report (PSR) at 1.^[2] 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).^[3] 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.”^[4]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 Recommendations.”

         On 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. Id.

         A final 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.

         Gevock’s 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 images.

         The 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 3, 5.

         Gevock’s 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. 38, 45.

         Gevock 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.

         At the 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.

         Gevock 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 judgment.

         II. Law Applicable to Motions Pursuant to 28 U.S.C. § 2255

         A 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).

         Under § 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 Cir. 1980).

         III. ...