United States District Court, E.D. Tennessee
A. VARLAN UNITED STATES DISTRICT JUDGE
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]. 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,
his motion will be DENIED.
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].
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].
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.
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.
Facts Considered at Sentencing
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].
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)].
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).
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.
knowingly, intelligently, and voluntarily waived his right to
seek relief under § 2255 on all claims except his
ineffective assistance of counsel claim. “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
¶ 11(b)] in which Petitioner, subject to two exceptions,
waived his right to file motions ...