The opinion of the court was delivered by: Juan R. Sanchez, J.
Defendant Lawrence DeLuca, a prisoner in federal custody, has filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, arguing he received ineffective assistance of counsel at sentencing. The Government asks this Court to dismiss DeLuca's § 2255 motion on the ground the motion is barred by the appellate waiver provision of DeLuca's guilty plea agreement. For the reasons set forth below, DeLuca's § 2255 motion will be denied on the merits, and the Government's motion to dismiss will be denied as moot.
On October 9, 2008, DeLuca pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), pursuant to a written guilty plea agreement. In the plea agreement, DeLuca "voluntarily and expressly waive[d] all rights to appeal or collaterally attack [his] conviction, sentence, or any other matter relating to [his] prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law." Guilty Plea Agreement ¶ 9. This broad appellate waiver provision is subject to certain limited exceptions. First, the plea agreement provides the waiver is "not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived." Id. Second, the plea agreement permitted DeLuca to file a direct appeal of his sentence if the Government appealed from the sentence. Id. ¶ 9(a). Third, in the event the Government did not appeal, the plea agreement permitted DeLuca to file a direct appeal raising only claims that
(1) the defendant's sentence on any count of conviction exceeds the statutory maximum for that count as set forth in paragraph 6 above [i.e., 10 years];
(2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines; and/or
(3) the sentencing judge, exercising the Court's discretion pursuant to United States v. Booker, 543 U.S. 220 (2005), imposed an unreasonable sentence above the final Sentencing Guideline range determined by the Court.
Id. ¶ 9(b). At the change of plea hearing, this Court reviewed the terms of the guilty plea agreement, including the appellate waiver provision, with DeLuca. See Change of Plea Hr'g Tr. 26-30, Oct. 9, 2008 (discussion of appellate waiver). Upon finding that DeLuca was competent, his decision to plead guilty was knowingly and voluntarily entered, there was an independent factual basis for the guilty plea, and DeLuca understood the maximum penalty applicable in the case and the trial and appellate rights he was giving up by pleading guilty, this Court accepted DeLuca's guilty plea. Id. at 34-35.
Following DeLuca's guilty plea, the Probation Office prepared a Presentence Investigation Report (PSR) for DeLuca. Consistent with the parties' stipulations in the guilty plea agreement, the probation officer calculated DeLuca's advisory sentencing range under the federal Sentencing Guidelines as 78 to 97 months, based on a total offense level of 28 and a criminal history category of I. DeLuca does not challenge the calculation of his advisory Guidelines range.
At the request of the Probation Office, and with the parties' agreement, psychologist Timothy
P. Foley, Ph.D., conducted a psycho-sexual evaluation of DeLuca as part of the presentence investigation process. Dr. Foley evaluated DeLuca for a total of five hours, examining him regarding his developmental, social, medical, psychiatric, educational/vocational, and sexual history, and administering certain psychological tests. Foley Report 1. The tests administered by Dr. Foley included the Minnesota Multiphasic Personality Inventory--2 (MMPI--2), which tests "personality functioning and psychopathology," and the Abel Screen, which provides an objective measure of the subject's sexual interest. Id. at 5. According to Dr. Foley's report, the Abel Screen entails the subject viewing a series of 160 slides and rating each on a seven-point scale of sexual interest while (unbeknownst to the subject) the computer records the viewing time for each slide. Id. The viewing time is then analyzed to provide an objective measure of sexual interests. Id.
In describing the results of DeLuca's psychological testing, Dr. Foley noted that on the MMPI--2 test, DeLuca had "answered the 567 test questions in an open and honest manner, according to embedded validity indicators," and reported the test "indicat[ed] an absence of measured psychopathology." Id. As to the Abel Screen, Dr. Foley reported DeLuca "provided an invalid protocol for this test." Id. Specifically, Dr. Foley observed that while DeLuca "self-reported primary sexual attraction to postpubescent females," he "provided little viewing time variation," which "suggest[ed] that he rushed through the test and did not follow standard instructions." Id. Thus, although DeLuca's "objective visual reaction times indicate[d] primary interest in postpubescent females," Dr. Foley concluded the results could "not be reliably interpreted." Id.
Dr. Foley concluded his report with the following summary, recommendations, and conclusions:
Lawrence DeLuca is a 36-year-old man who has been charged with possession of child pornography. He has no known prior criminal history. There is no known history of contact sexual offenses. There is no known history of drug or alcohol abuse.
He self reports a considerable history of sexual promiscuity with apparent waning over the past several years. Mr. DeLuca indicates that he purchased access to pornography sites but stopped his subscription approximately one year before his arrest. He denied finding the prepubescent images sexually gratifying. He acknowledges the wrongfulness of his behavior and realization that he created a market for depictions of sexually abused children.
Sexual interest testing is inconclusive with an invalid protocol. Psychological testing shows a relatively well-adjusted individual with no measured psychopathology. Mr. DeLuca reports a history of compulsive counting and periodic anxiety states that do not seem to cause much distress.
Recommendations and Conclusions
1. Mr. DeLuca is low risk for contact sexual offenses. Contact with family shows considerable opportunity to molest children with no evidence of the same. His history does not show a paraphilic disorder or propensity for antisocial behaviors. Both of these factors are considered risk indicators for sexual misconduct.
2. Mr. DeLuca should be monitored for symptoms of an anxiety disorder if he is confined. Behavioral intervention may be useful if Mr. DeLuca is motivated to address symptoms of an anxiety disorder.
3. He should be referred for psychotherapy to further investigate his index offense behavior.
Following completion of Dr. Foley's report, the probation officer revised DeLuca's PSR to incorporate Dr. Foley's findings, including his conclusion that DeLuca presented a low risk for a contact sexual offense, and his description of the limitations of DeLuca's Abel Screen results. At the request of DeLuca's counsel, this Court made Dr. Foley's report available to the parties.
Prior to sentencing, DeLuca's counsel submitted a sentencing memorandum in which counsel requested a downward variance from the advisory Guidelines range of 78 to 97 months. In support of his variance request, counsel cited DeLuca's four years of service in the United States Marine Corps, during which he received several commendations and took part in the rescue of a United States Air Force Captain who had been shot down while patrolling a no fly zone over BosniaHerzegovina; his significant employment record; his otherwise crime-free adult life; his ...