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Swiger v. United States

United States District Court, E.D. Tennessee, Greeneville

February 1, 2017

BENJAMIN DWAYNE SWIGER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE

         Benjamin Dwayne Swiger, (“Swiger” or “petitioner”), a federal prisoner, has filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. Section 2255, [Doc. 41].[1]The government has responded in opposition, [Doc. 43], the petitioner has filed a lengthy, 38-page reply, [Doc.49], and the matter is ripe for disposition. The Court has determined that the files and records in the case conclusively establish that the petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. For the reasons set forth herein, petitioner's § 2255 motion lacks merit and will be DENIED and the case DISMISSED.

         I. Factual and Procedural Background

         A criminal complaint was filed on October 9, 2013, [Doc. 3], charging petitioner with receipt (Count One), distribution (Count Two), and possession (Count Three), of child pornography. A federal grand jury returned an indictment on November 13, 2013, [Doc. 18], charging petitioner with distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (Count One), receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (Count Two), and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2) (Count Three). On January 21, 2014, a written plea agreement was filed with petitioner agreeing to plead guilty to Count One of the indictment and the government agreeing to dismiss the other two counts. [Doc. 27]. The plea agreement was made pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure and the parties agreed to a sentence of 240 months of imprisonment. [Id. at 6]. Petitioner entered his guilty plea on January 21, 2014, sentencing was set for May 14, 2014, and a presentence investigation report (“PSR”) was ordered. [Doc. 28].

         The PSR was disclosed on April 18, 2014, [Doc. 31]. The probation officer assigned a base offense level of 22 and added two levels pursuant to USSG § 2G2.2(b)(2) because the material involved a prepubescent minor, five levels pursuant to USSG § 2G2.2(b)(3)(B) because the offense involved distribution for receipt, or expectation of receipt, of a thing of value, four levels pursuant to USSG § 2G2.2(b)(4) because the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, five levels pursuant to USSG § 2G2.2(b)(5) because the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, two levels pursuant to USSG § 2G2.2(b)(6) because the offense involved the use of a computer, and five levels pursuant to USSG § 2G2.2(b)(7)(D) because the offense involved more than 600 (1, 658) images. [Id. at ¶¶ 43-49]. The offense level was reduced by three levels pursuant to USSG § 3E1.1(a) and (b), [Id. at ¶¶ 55, 56], resulting in a total offense level of 42, [id. at ¶ 57]. Petitioner's criminal history category was I, [id. at ¶ 62], and the advisory guideline range for imprisonment was 360 months to life. The statutorily authorized maximum, however, was 20 years and the final restricted guideline range was 240 months, the agreed upon sentence. [Id. at ¶ 90]. Neither party objected to the PSR, [Docs. 33, 34]. The Court adopted the PSR, accepted the Rule 11(c)(1)(C) plea agreement, and sentenced Swiger to 240 months imprisonment, followed by a lifetime term of supervised release, on May 15, 2014, [Doc. 28]. Judgment was entered on May 22, 2014, [Doc. 39]. Petitioner did not appeal.

         Swiger's plea agreement contained the following stipulation of facts:

A. At all times relevant to the indictment, the defendant resided at 207 Ridgeview Drive in Johnson City, Tennessee, in the Eastern District of Tennessee. The defendant had access to the internet via service provided by Embarq Communications to the defendant's residence.
B. The internet is a means of interstate commerce.
C. At all times relevant to the indictment, the defendant accessed the internet from his residence to join and participate in an online peer-to-peer, password-protected file-sharing application which allowed users to receive and distribute child pornography as defined by 18 U.S.C. § 2256(8).
D. On September 10, 2013, the defendant distributed 233 still images of child pornography and 19 videofiles of child pornography to an undercover law enforcement officer via the online peer-to-peer, password-protected file-sharing application. In order to distribute the child pornography, the defendant provided the law enforcement officer a password.
E. When the defendant distributed the foregoing images and videofiles of child pornography on September 10, 2013, he did so knowingly.
F. The images which the defendant distributed on September 10, 2013 depicted actual minors engaged in sexually explicit conduct.
G. When the defendant distributed the images on September 10, 2013, he was aware of the sexually explicit nature and character of the materials and he knew they depicted minors engaged in sexually explicit conduct.
H. The defendant transported the images of child pornography in interstate commerce via the internet, a means of interstate of commerce.

         [Doc. 37 at ¶¶ 4A - H]. The PSR had the following additional unobjected to facts:

17. The investigation in this case began in June of 2013, when a Special Agent with the Federal Bureau of Investigation (FBI) went online in an undercover capacity, searching for child pornography using a peer-to-peer file sharing application and another person's online identity.
18. On September 10, 2013, a computer user who used the screen name “mike.haywood9” invited the undercover agent to participate in a password protected online file sharing network, and provided the agent the password. On that same date, the agent accessed the password protected cache of images from the “mike.haywood9” file and downloaded 233 images and 18 videos of child pornography. The agent determined that the user of account”mike.haywood9” was sharing 1, 654 files of child pornography at that time. The agent determined that the user of “mike.haywood9” was a member of GigaTribe, an online peer-to-peer password protected file sharing application and that his internet protocol (IP) address was 76.7.157.223.
19. The IP address was owned by Embarq Communications, who responded to an administrative subpoena and stated that the account holder was Brandy Swiger, 207 Ridgeview Drive, Johnson City, Tennessee.
20. On October 9, 2013, the Federal Bureau of Investigation executed a federal search warrant at that address, which is the personal address of Ben and Brandy Swiger and their two-year-old daughter. The defendant was present when the warrant was executed. The agents advised him their reason to be present. The defendant was Mirandized and he signed a written waiver of his constitutional rights. Defendant Swiger stated he became interested in child pornography when he was approximately 12-years-old. He further stated he had been viewing child pornographic images and videos online since he was 18- years-old. The defendant stated he originally used the peer-to-peer (P2P) file sharing program Limewire to locate and download child pornography online by supplying the search terms “pthc, ” “rbv, ” and “bibcam.” Defendant Swiger informed approximately six months ago, he visited the ZOZO chat website where he learned about another P2P file sharing program known as Gigatribe, which could also be used to obtain child pornography online. He subsequently downloaded Gigatribe and installed the software on his laptop computer.
21. Defendant Swiger revealed he created a Gigatribe user account with the username “mike.haywood9” and password “Germany69.” The defendant stated the username had no significant meaning and was merely a random name. He stated his password represented his deployment to Germany when he served in the United States Army, but the number “69” was a random number. The defendant stated he created a folder labeled “My Downloads” located on his laptop computer, and he used the folder for sharing with Gigatribe users. The “My Downloads” folder was password protected with the password “Germany69.” Defendant Swiger revealed he did not include any personal information on his Gigatribe profile, and no one else had access to the “mike.haywood9” account.
22. The defendant stated he used Gigatribe roughly once a month to download child pornography, usually whenever he “got feelings.” He informed he usually downloaded child pornography on Tuesday evenings, when his wife was at work. Defendant Swiger informed he shared child pornographic images and videos with other Gigatribe users. In turn, downloaded child pornography from other Gigatribe users and stored the files on a gray flash drive. The defendant stated he used Gigatribe's chat feature to communicate with other Gigatribe users to obtain child pornography. He revealed he never exchanged child pornography through e-mail, Skype, or any other social media network.
23. Defendant Swiger disclosed he never created Gigatribe groups, used Gigatribe points or Gigatribe's blog feature. However, he indicated he was a member of several Gigatribe tribes, including the “KDV” tribe, which was associated with child pornography. He was unable to recall the names of the other tribes he joined. The defendant estimated there were approximately 30 images and two videos depicting child pornography stored on his laptop computer. He stated he usually deleted the child pornography after viewing the material.
24. The defendant stated he owned additional computers other than the laptop and desktop computers currently located at his residence. He stated he used the computers to connect the internet to view and download child pornography. The defendant indicated he disposed of the computers after they became outdated; however, he was unable to recall how he disposed of them.
25. Defendant Swiger was shown printouts of five child pornographic images that were downloaded from the “mike.haywood9” Gigatribe account. The defendant acknowledged he had received and reviewed two of the images, and he initialed the printouts. He stated one printout “looked familiar, ” but refused to initial the printout. The defendant was also shown three printouts containing information about the ...

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