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Evans v. United States

United States District Court, E.D. Tennessee

January 10, 2020

ROBERT BREON EVANS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          THOMAS A. VARLAN UNITED STATES DISTRICT JUDGE

         Petitioner Robert Breon Evans has filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [Doc. 39].[1] The government has responded in opposition [Doc. 43]. Because, based on the record before the Court, it plainly appears that Petitioner is not entitled to relief, it is not necessary to hold an evidentiary hearing, [2]and his motion will be DENIED.

         I. Background

         On November 3, 2015, a federal grand jury filed a two-count indictment charging Petitioner with distribution and possession of child pornography [Doc. 6]. On December 13, 2015, Petitioner executed a plea agreement containing provisions of the type specified in Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure [Doc. 19]. Specifically, the parties agreed to the following for purposes of sentencing: (1) Petitioner's base offense level was twenty-two (22) [Id. ¶ 5(a)]; (2) the offense was not distribution of the type described in U.S.S.G. § 2G2.2(b)(3)(A)-(E) [Id. ¶ 5(b)]; (3) the offense involved child pornography that depicted minors who had not attained the age of twelve (12) [Id. ¶ 5(c)]; (4) the offense involved child pornography that portrayed sadistic or masochistic conduct or other depictions of violence [Id. ¶ 5(d)]; (5) the offense involved the use of a computer [Id. ¶ 5(e)]; and (6) the offense involved 600 or more images of child pornography [Id. ¶ 5(f)]. The plea agreement also contained provisions waiving certain rights, including Petitioner's right to file a direct appeal and motions pursuant to § 2255, with limited exceptions [Id. ¶ 11].

         On February 10, 2016, Petitioner pled guilty to both counts and was convicted [Doc. 35]. The probation officer filed the presentence investigation report on May 10, 2016 [Doc. 26]. The presentence investigation report included a description of the Rule 11(c)(1)(B) provisions of the plea agreement [Id. ¶ 3] and provided a step-by-step description of how Petitioner's offense level was calculated, incorporating the base offense level and the enhancements set forth in the plea agreement [Id. ¶¶ 18-34]. Petitioner timely filed a notice of no objection to the presentence investigation report [Doc. 27].

         On June 15, 2016, the Court sentenced Petitioner to a within-guidelines term of 160 months' imprisonment [Doc. 35], sixty (60) months of which was statutorily mandated by his conviction for distribution of child pornography [Doc. 26 ¶ 56]. Petitioner did not file a direct appeal, and the judgment has become final. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004). Petitioner now seeks relief under § 2255.

         II. Analysis

         Petitioner makes three (3) claims. First, Petitioner alleges that his Fifth and Sixth Amendment rights were violated at sentencing when the Court considered certain facts in the presentence investigation report which were not charged in the indictment, admitted by Petitioner, or found by a jury [Doc. 39 p. 3-11]. Second, he alleges that his counsel was constitutionally ineffective [Id. at 12]. And third, he alleges error in the calculation of his offense level [Id. at 13]. For the reasons explained below, none of these claims provides a basis for relief.

         A. Facts Considered at Sentencing

         Petitioner argues that the inclusion of certain facts in the presentence investigation report and the consideration of those facts by the Court in fashioning a sentence in this case violated his Fifth Amendment right to indictment by a grand jury and his Sixth Amendment right to have the jury find the existence of facts which are essential to his punishment [Doc. 39]. These facts are: (1) the offense involved child pornography that depicted minors who had not attained the age of twelve (12); (2) Petitioner's conduct involved peer-to-peer distribution; (3) the offense involved child pornography that portrayed sadistic or masochistic conduct or other depictions of violence; (4) the offense involved the use of a computer; and (5) Petitioner possessed 600 or more images of child pornography [Id. at 2]. Petitioner repeatedly asserts that these facts were not charged in the indictment, not admitted by Petitioner, and not found by a jury [Id. at 3, 6].

         The Court finds that this claim is expressly waived in the plea agreement [Doc. 19 ¶ 11(b)]. Further, contra to Petitioner's assertions, the record establishes that Petitioner repeatedly asserted his agreement that the guidelines provisions concerning these facts applied to the calculation of the offense level in this case, which also supports a finding of waiver [Docs. 19 ¶ 5 (listing the agreed-upon enhancements in Rule 11(c)(1)(B) provisions), 42 p. 9 (affirming Petitioner's agreement that the Rule 11(c)(1)(B) provisions applied to the offense-level calculation at the change of plea hearing); see also Doc. 27 (noting Petitioner's lack of objection to the presentence investigation report, which includes a detailed, step-by-step calculation of the offense level in this case, including the enhancements agreed-upon in the Rule 11(c)(1)(B) provisions of the plea agreement)].

         “It is well settled that a defendant in a criminal case may waive any right, even a constitutional right, by means of a plea agreement.” United States v. Calderon, 388 F.3d 197, 199 (6th Cir. 2004) (quoting United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001)). Plea-agreement waivers of § 2255 rights are generally enforceable. Davila v. United States, 258 F.3d 448, 450 (6th Cir. 2001) (citing Watson v. United States, 165 F.3d 486, 489 n.4 (6th Cir. 1999)). Accordingly, “[o]nly challenges to the validity of the waiver itself may be advanced on appeal[, and such a waiver is] enforceable . . . so long as the waiver is done knowingly, intelligently and voluntarily.” Davidson v. United States, No. 2:11-CV-2244, 2013 WL 6116688, at *3 (E.D. Tenn. Nov. 20, 2013) (citing In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007); Davila, 258 F.3d at 451-52; Watson, 165 F.3d at 489).

         Here, with respect to this claim, Petitioner waived the right to bring this motion in the plea agreement. In the plea agreement, Petitioner expressly waived his right to seek relief under § 2255 with two (2) exceptions: “The defendant retains the right to file a § 2255 motion as to (i) prosecutorial misconduct and (ii) ineffective assistance of counsel” [Doc. 19 ¶ 11(b)]. Petitioner's claim regarding facts considered at sentencing does not fall within either exception and is therefore waived. Thus, the only issue before the Court with respect to this claim is whether Petitioner's waiver was done “knowingly, intelligently and voluntarily.” Watson, 165 F.3d at 489.

         Petitioner knowingly, intelligently, and voluntarily waived his right to seek relief under § 2255 on all claims except his ineffective assistance of counsel claim.[3] “This Court scrupulously complies with Rule 11 of the Federal Rules of Criminal Procedure governing acceptance of pleas and determines whether a defendant understands the nature of the charge against him, the minimum and maximum penalties he is facing, and the rights he is giving up by pleading guilty.” Davidson, 2013 WL 6116688, at *3. This Court accepted Petitioner's plea at a change of plea hearing on February 10, 2016, after a colloquy addressing the considerations set forth in Rule 11 [Doc. 42]. Throughout the hearing, Petitioner stated that he was knowingly and voluntarily pleading guilty and that he understood the terms of his plea agreement and the consequences of pleading guilty [Id.]. In particular, the Court discussed with Petitioner the provision of the plea agreement [Doc. 19 ΒΆ 11(b)] in which Petitioner, subject to two exceptions, waived his right to file motions ...


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