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Newman v. United States

United States District Court, W.D. Kentucky, Louisville Division

December 11, 2018


          OPINION AND ORDER [1]


         The pro-se Movant filed a motion and amended motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody, to which the United States responded in opposition. [R. 42, 49, 56.] The Court referred the matter to the undersigned Magistrate Judge for resolution of all non-dispositive motions, for appropriate hearings, if necessary, and for findings of fact and recommendation on dispositive motions. [R. 57.]

         For the reasons below, the Court finds that an evidentiary hearing is necessary in this case and shall, by separate orders, SCHEDULE the hearing and APPOINT counsel to represent Movant.

         Movant's Convictions and Sentence

         At the change of plea hearing, Movant waived his right to have his case presented to a grand jury for indictment and agreed to proceed based on the information filed by the United States. [Change of plea hearing, R. 54 at 2-3, referencing information at R. 14.] The Court advised Movant that, due to the absence of a plea agreement with the United States, at the sentencing hearing, Movant and the United States would be free to argue for any sentence permitted by law but that Movant would not be allowed to withdraw his guilty pleas in the event counsel's predictions regarding application of the United States Sentencing Guidelines proved incorrect and/or the Court sentenced Movant more severely than anticipated. [R. 54 at 14-16.]

         Movant pled guilty to sixteen counts of production of child pornography (18 U.S.C. § 2251(a) and (e)), one count (Count 2) of use of interstate commerce to persuade or entice a minor to engage in sexual activity (18 U.S.C. § 2422(b)), one count of transportation of child pornography (18 U.S.C. § 2252A(a)(1) and (b)(1)), and one count of possession of child pornography (18 U.S.C. § 2252A(a)(a)(5)(B) and (b)(2)). [Judgment and commitment order, R. 36 at 2-3.]

         Based on a total offense level of 43 and a criminal history category of I, the final presentence investigation report (PSR) calculated Movant's guidelines sentencing range to be life imprisonment. [Statement of reasons, R. 38 at 1, referencing final PSR at R. 26.] The Court adopted the final PSR [R. 38 at 1], determined that Movant qualified for a variance below the guidelines range [R. 38 at 3], and sentenced Movant to: “a term of three hundred sixty (360) months as to Counts 1, and 3-17 of the Information; five hundred four (504) months as to Count 2 of the Information, two hundred forty (240) months as to Count 18 of the Information, and one hundred twenty (120) months as to Count 19 of the Information, which shall be served CONCURRENTLY, for a TOTAL of five hundred four (504) months.” [R. 36 at 4.]

         Movant's Two Claims

         Movant's amended Section 2255 motion raises two claims. First, Movant claims that the Court did not have an adequate factual basis, as required by Federal Rule of Criminal Procedure 11, to accept his plea of guilty to Count 2. The claim is significant because Movant's conviction on Count 2 resulted in an additional 144 months of incarceration. [See R. 36 at 4, quoted above.]

         Count 2 charged a violation of 18 U.S.C. § 2422(b):

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so ….

         The victim of Count 2 was a 13-year-old boy who lived in Texas. Movant lived in Kentucky. On the internet, Movant and the victim exchanged sexual banter along the lines of what Movant wanted and “need[ed]” to do with the victim's anus. [Affidavit in support of criminal complaint, R. 1 at 7.] Eventually, Movant persuaded the victim to penetrate his anus with the handle of a toilet plunger and send Movant videos and/or images. [R. 1 at 6-7.]

         At the change of plea hearing, the Court asked the United States to summarize its factual basis for Count 2, and the United States responded:

During those communications, Mr. Newman asked for some very specific things, including sadistic images that involved -- and this was in the original complaint -- a plunger. Because of the very specific nature of those requests, that is the basis of Count 2, the enticement charge. He was giving very specific instructions. He also received other images and ...

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