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United States v. O'Quinn

United States District Court, N.D. Florida, Gainesville Division

April 24, 2018

UNITED STATES OF AMERICA,
v.
JAMES MICHAEL O'QUINN

          REPORT AND RECOMMENDATION

          GARY R. JONES, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court upon Petitioner's Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody (ECF No. 65); the Government's Response (ECF No. 67); and Petitioner's Reply. (ECF No. 68.) The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the Court concludes that Petitioner has not raised any issue requiring an evidentiary hearing and that the § 2255 Motion should be denied. See Rules 8(a) and (b) Governing § 2255 Cases.

         I. BACKGROUND

         On April 27, 2010, a grand jury returned a two-count indictment charging Petitioner with: 1) receiving and distributing and attempting to receive and distribute child pornography in violation of Title 18, United States Code, Sections 2252A(a)(2)(A) and 2252A(b)(1) (Count One); and 2) possession of child pornography in violation of Title 18, United States Code, Sections 2252A(a)(5)(B) and 2252A(b)(2). (ECF No. 1.)

         Petitioner entered into a plea agreement in which he agreed to plead guilty to Count One in exchange for the Government's promise to dismiss Count Two. (ECF No. 21.) On July 26, 2010, the Court accepted Petitioner's guilty plea. (ECF No. 19.) Upon entry of the guilty plea, the United States Probation Office prepared a Presentence Investigation Report (“PSR”). (ECF No. 33.)

         The PSR reflected that Petitioner had a base offense level of 22 pursuant to United States Sentencing Guidelines § 2G2.2. Id. at ¶ 26. The base level was significantly increased by five specific-offense characteristics. Petitioner received a two-level increase pursuant to 2G2.2(b)(2) because many of the images found on Petitioner's computer involved pre-pubescent minor children. Id. at ¶ 27. Petitioner received a two-level increase pursuant to § 2G2.2(b)(3)(F) because the offense involved a peer-to-peer file-sharing network in which Petitioner listed child pornography for distribution. Id. at ¶ 28. He received a four-level increase pursuant to § 2G2.2(b)(4) because several of the images portrayed sexual intercourse with pre-pubescent children. Id. at ¶ 29. He received a two-level increase pursuant to § 2G2.2(b)(6) because the offense involved Petitioner's computer and an interactive peer-to-peer file-sharing network to possess, transmit, receive, and distribute the material. Id. at ¶ 30. He received a two-level increase pursuant to § 2G2.2(b)(7)(D) because the offense involved 96 images. Id. at ¶ 31.

         After a three-level downward adjustment for acceptance of responsibility, Petitioner's total offense level was 31. Id. at ¶¶ 36, 37. Petitioner's criminal history category was I. Id. at ¶ 86. The offense carried a minimum term of imprisonment of five years and a maximum term of twenty years pursuant to §§ 2252A(a)(2)(A) and 2252A(b)(1). Id. at ¶ 85. The applicable Guidelines range was 108 to 135 months. Id. at ¶ 86.

         On December 6, 2010, the Court sentenced Petitioner to 108 months of imprisonment, a life term of supervised release, and a $100 Special Monetary Assessment. (ECF No. 37.)

         The Eleventh Circuit Court of Appeals affirmed Petitioner's conviction and sentence in an opinion issued on August 4, 2011, and issued a mandate thereafter on September 6, 2011. (ECF No. 61.) Petitioner did not file a Petition for Writ of Certiorari in the United States Supreme Court. On November 30, 2016, more than five years after the Eleventh Circuit entered final judgment in his case, Petitioner filed a letter seeking appointed counsel to aid him in filing an action pursuant to § 2255, which the Court construed as a motion to vacate. (ECF No. 62.)

         On December 19, 2016, Petitioner filed the instant Amended Motion pursuant to § 2255. (ECF No. 65.) In his sole ground[1] for relief, Petitioner seeks a sentence reduction on the grounds that he did not “knowingly” engage in the distribution of child pornography and therefore should not have received a two-point enhancement pursuant to § 2G2.2(b)(3)(F). Id.

         II. ANALYSIS

         A. General Legal Standard

         Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to Section 2255 are extremely limited. A prisoner is entitled to relief under Section 2255 if the court imposed a sentence that: (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation Ahas probably resulted in the conviction of one who is actually innocent . . . .” An evidentiary hearing is unnecessary when “the motion and files and records conclusively show that the prisoner is entitled to no relief.” See 28 U.S.C. § 2255(b); Rosin, 786 F.3d at 877; Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of ineffective assistance of counsel warrants an evidentiary hearing. Gordon, 518 F.3d at 1301 (citing Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984)). To be entitled to a hearing, a defendant must allege facts that, if true, would prove he is entitled to relief. See Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015). A hearing is not required on frivolous claims, conclusory allegations unsupported by specifics, or contentions that are wholly unsupported by the record. See WinthropBRedin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (explaining that “a district court need not hold a hearing if the allegations [in a' 2255 motion] are . . . based upon unsupported generalizations”) (internal quotation marks omitted); Peoples v. Campbell, 377 F.3d 1208, 1237 (11th Cir. 2004). Even affidavits that amount to nothing more than conclusory allegations do not warrant a hearing. Lynn, 365 F.3d at 1239. Finally, disputes involving purely legal issues can be resolved by the court without a hearing.

         B. ...


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