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Stewart v. United States

United States District Court, S.D. California

July 26, 2017

MICHAEL EUGENE STEWART, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER: (1) DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT THE SENTENCE; AND [DOC. NO. 34 IN 12-CR-461.] (2) DENYING CERTIFICATE OF APPEALABILITY

          MARILYN L. HUFF, District Judge

         On April 24, 2017, Petitioner/Defendant Michael Eugene Stewart, proceeding pro se, filed in the United States District Court for the Southern District of California a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence by a person in federal custody. (12-cr-461-Doc. No. 34.) On May 17, 2017, the Government filed a response in opposition to Defendant's motion. (12-cr-461-Doc. No. 36.) On July 10, 2017, Defendant filed a reply. (12-cr-461-Doc. No. 37.) For the reasons discussed below, the Court denies Defendant's § 2255 motion.

         Background

         On May 1, 2012, a grand jury returned an indictment charging Defendant with: (1) distribution of images of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2); and (2) possession of matters containing images of sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B). (12-cr-1688-Doc. No. 1.) On November 27, 2012, Defendant pled guilty pursuant to a written plea agreement to count one of the indictment, distribution of child pornography in violation of § 2252(a)(2). (12-cr-1688-Doc. Nos. 37, 39, 43.)

         In the plea agreement, the parties agreed that Defendant would be subject to a 2-level enhancement to his guideline calculations pursuant to U.S.S.G. § 2G2.2(b)(3). (12-cr-1688-Doc. No. 39 at 7.) In addition, in the plea agreement, Defendant waived “any right to appeal or to collaterally attack his sentence, except a post-conviction collateral attack based on a claim of ineffective assistance of counsel, unless the Court impose[d] a custodial sentence above the high end of the guideline range . . . recommended by the Government pursuant to this agreement at the time of sentencing.” (Id. at 10.)

         On June 10, 2013, Defendant filed a sentencing summary chart calculating his total offense level as 32 and his criminal history category as II and requesting an 8-level departure, resulting in an advisory guideline range of 57 to 71 months, and recommending a custodial sentence of 60 months. (12-cr-1688-Doc. No. 62.) In calculating Defendant's total offense level, Defendant applied a 2-level enhancement for distribution under U.S.S.G. § 2G2.2(b)(3). (Id.; see also 12-cr-1688-Doc. No. 61 at 2.) On June 12, 2013, the Government filed a sentencing summary chart calculating Defendant's total offense level as 34 and his criminal history category as III, resulting in an advisory guideline range of 188 to 235 months, and recommending a custodial sentence of 188 months. (12-cr-1688-Doc. No. 66.) In calculating Defendant's total offense level, the Government applied a 2-level enhancement for distribution under U.S.S.G. § 2G2.2(b)(3)(F). (Id.; see also 12-cr-1688-Doc. No. 67 at 10.)

         On August 12, 2013, the Court held a sentencing hearing. At the hearing, the Court calculated Defendant's total offense level as 34 and his criminal history category as III, resulting in an advisory guideline range of 188 to 235 months. In calculating Defendant's offense level, the Court applied a 2-level enhancement for distribution under U.S.S.G. § 2G2.2(b)(3)(F). The Court then considered the § 3553(a) factors and ultimately sentenced Defendant to 108 months in custody for count one of the indictment, distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). (12-cr-1688-Doc. Nos. 71-72.) The Court granted the Government's oral motion to dismiss count two of the indictment. (Id.) The Court subsequently entered judgment on August 14, 2013. (12-cr-1688-Doc. No. 72.)

         On April 24, 2017, Defendant filed the present motion pursuant to 28 U.S.C. § 2255 to vacate and correct his federal prison sentence.[1] (12-cr-00461-Doc. No. 34.) In the motion, Defendant argues that his sentence is unlawful in light of Amendment 801, which clarified the distribution enhancement set forth in U.S.S.G. § 2G2.2(b)(3). (Id. at 1-2.)

         Discussion

         I. Legal Standards

         A sentencing court may “vacate, set aside or correct the sentence” of a federal prisoner if it concludes that “the sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). Claims for relief under § 2255 must be based on a constitutional or jurisdictional error, “‘a fundamental defect which inherently results in a complete miscarriage of justice, '” or a proceeding “‘inconsistent with the rudimentary demands of fair procedure.'” United States v. Timmreck, 441 U.S. 780, 783-84 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). A district court may deny a § 2255 motion without holding an evidentiary hearing if “the petitioner fails to allege facts which, if true, would entitle him to relief, or the petition, files and record of the case conclusively show that he is entitled to no relief.” United States v. Rodriguez-Vega, 797 F.3d 781, 792 (9th Cir. 2015); see 28 U.S.C. § 2255(b); United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986) (“Where a prisoner's [§ 2255] motion presents no more than conclusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required.”).

         II. Analysis

         In the present §2255 motion, Defendant states that the United States Sentencing Commission recently issued and enacted a clarifying amendment, Amendment 801, which clarifies the scope of the 5-level enhancement provision set forth in U.S.S.G. § 2G2.2(b)(3). (12-cr-461-Doc. No. 34 at 1.) Defendant argues that following that amendment, a 5-level enhancement under U.S.S.G. § 2G2.2(b)(3) should only be applied if the defendant knowingly distributed unlawful images for the specific purpose of obtaining something of valuable consideration from the other person. (Id. at 1-2, 5.) Petitioner argues that in light of Amendment 801, he should not have received an enhancement under U.S.S.G. § 2G2.2(b)(3), and, therefore, his sentence should be corrected. (Id. at 5-7.)

         Here, Defendant has failed to state a cognizable claim for relief under § 2255. “Although collateral review under section 2255 is . . . quite broad, ‘it does not encompass all claimed errors in . . . sentencing.' If a petitioner does not allege lack of jurisdiction or constitutional error, an error of law will not provide a basis for habeas relief unless that error ‘resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure.'” Hamilton v. United States, 67 F.3d 761, 763- 64 (9th Cir. 1995) (citations omitted). Defendant's contention that he should be resentenced in light of Amendment 801 raises neither a claim of constitutional nor jurisdictional error. Further, a “‘district court's failure to apply a guideline that was not effective at the time of sentencing does not give rise to a complete miscarriage of justice.'” Id. at 764. Accordingly, Defendant's claim is not cognizable under § 2255, and the Court lacks authority to resentence Defendant under § 2255 on ...


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