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United States v. Patterson

United States District Court, W.D. Pennsylvania

October 17, 2017

UNITED STATES OF AMERICA,
v.
ANDREW PATTERSON, Defendant.

          MEMORANDUM OPINION

          Nora Barry Fischer, U.S. District Judge.

         I. INTRODUCTION

         This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (“Motion”), filed by pro se Defendant Andrew Patterson (“Defendant”), (Docket Nos. 79), his Brief in Support, (Docket No. 80), the Government's opposition thereto, (Docket No. 84), and Defendant's Reply, (Docket No. 85). Defendant maintains that his sentence should be vacated and that he should be resentenced based on the Sentencing Commission's subsequent amendment to the child pornography guidelines, Amendment 801, which revised Guideline § 2G2.2(b)(3)(F) to specify that a mens rea of knowingly must be proven prior to applying the enhancement. (Docket Nos. 80; 85). The Government contends that the motion is procedurally defective and that any guidelines error is not of a sufficient magnitude to warrant relief under § 2255. (Docket No. 84). After careful consideration of the parties' submissions and for the following reasons, Defendant's Motion [79] is denied.

         II. BACKGROUND

         A federal grand jury returned a three count indictment against Defendant on November 18, 2014 charging him with one count of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2); one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2); and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). (Docket No. 1). On January 20, 2016, Defendant appeared before the Court and pled guilty to Count One of the Indictment pursuant to a plea agreement with the Government. (See Docket Nos. 46, 47; Plea Letter dated 12/3/15). Count One specifically charges the following:

From on or about June 15, 2014, to on or about June 16, 2014, in the Western District of Pennsylvania and elsewhere, the defendant, ANDREW PATTERSON, did knowingly distribute visual depictions, namely videos and images in computer graphics and digital files, to an undercover detective of the Indiana County District Attorney's Office, the production of which involved the use of minors engaging in sexually explicit conduct, and which depicted minors engaging in sexually explicit conduct, as those terms are defined in Title 18, United States Code, Section 2256, using a means and facility of interstate and foreign commerce, specifically by computer.
In violation of Title 18, United States Code, Section 2252(a)(2).

(Docket No. 1). The potential penalties for such offense included a mandatory minimum penalty of five years' incarceration and up to a term of twenty years' incarceration. See18 U.S.C. §§ 2252(a)(2) and (b)(1).

         As is the Court's practice, it conducted an extensive colloquy with Defendant to confirm that he was competent, understood the Constitutional and other rights that he was waiving by entering a guilty plea, and that he was knowingly and voluntarily pleading guilty to Count One. (See Docket Nos. 46, 47). The Court then addressed the terms of the plea agreement directly with Defendant, who assented, under oath, that: he had discussed all relevant matters pertaining to the plea agreement with his counsel; and, he was knowingly and voluntarily accepting the terms of the plea agreement and the waivers contained therein, including waiving his right to appeal the judgment and sentence to the Court of Appeals. (Id.; Plea Letter dated 12/3/15). The Court next discussed the parties' comprehensive stipulations regarding the computations of the advisory guidelines range in Defendant's case, which included, among other things, that Defendant's base offense level would be increased “an additional 2 levels pursuant to § 2G2.2(b)(3)(F) because the offense involved distribution.” Plea Letter 12/13/15 at ¶ C.3. After confirming that Defendant was fully informed of the charges, the potential penalties for same and the rights that he was waiving, the Court accepted his guilty plea to Count One. (See Docket Nos. 46, 47).

         The Probation Office included the enhancement under Guideline § 2G2.2(b)(3)(F) as part of its computations of the advisory guidelines range and no objections were lodged to the Probation Office's computations of the advisory guidelines or to any other aspect of the Presentence Investigation Report, (“PIR”). (PIR at ¶ 27). As the Court noted in its Tentative Findings and Rulings, the Probation Office applied an additional five-level enhancement under Guideline § 2G2.2(b)(5) based on an alleged pattern of activity which the Court also imposed. (Docket No. 61 at §§ II.2). The Court determined that Defendant's advisory guidelines range was 240 months' incarceration because the otherwise applicable advisory guidelines range of 262 to 327 months' incarceration was above the statutory maximum penalty of 240 months' incarceration. (Docket No. 61).

         At sentencing, no objections were lodged to the PIR or the Tentative Findings and Rulings, which were adopted as the Court's final rulings on the advisory guidelines range.[1](Docket No. 75). Defendant moved for a variance below the advisory guidelines range of 240 months' incarceration and presented the expert testimony of Dr. Lawrence Sutton, a licensed psychologist, whom had also prepared a report that was presented to the Court in an effort to mitigate his sentence. (Docket Nos. 69; 75). After careful consideration of the § 3553(a) factors, the Court granted Defendant's motion, in part, and imposed a sentence of 151 months' incarceration, and a life term of supervised release. (Docket Nos. 75; 76). The Court also ordered him to pay a $100 special assessment and to forfeit certain property used in the commission of the offense. (Id.). Restitution was not ordered, as the Government conceded that the claims of restitution which were made did not relate to the distribution offense to which Defendant had pled guilty. (Docket Nos. 71; 76). Counts Two and Three of the Indictment were also dismissed in accordance with the parties' plea agreement. (Docket Nos. 75; 76).

         The facts of Defendant's case were uncontested as no objections were lodged to the PIR. (Docket Nos. 56; 58; 61). He admitted that he possessed over one thousand videos and several thousand images containing child pornography, many of which involved graphic depictions and videos of very young children, including toddlers and babies. (PIR at ¶¶ 4, 16-17). He likewise conceded that these files were saved and categorized in folders on his desktop computer. (PIR at ¶ 16). He had installed EMULE software on the computer and the child pornography was shared over the peer-to-peer network EDONKEY 2000. (PIR at ¶¶ 4, 16). A detective with the Indiana County District Attorney's Office conducting an undercover investigation on June 15 and 16, 2014, was able to make a direct connection to Defendant's computer through the file sharing network and successfully downloaded several video and image files containing child pornography from Defendant's computer. (Id. at ¶¶ 4-5). Such conduct formed the basis of the guilty plea to the charge of distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). (Id.).

         The Court was also well informed of Defendant's personal history and characteristics through the information contained in the PIR, and his counsel's advocacy in his Sentencing Memorandum and at the sentencing hearing. (Docket Nos. 56; 69; 75; 76). To that end, Defendant was 46 years old, married and had a 15 year old daughter. (PIR at ¶¶ 55). He had a difficult upbringing in New York State and suffered from an autism spectrum disorder, as described by Dr. Sutton. (PIR at ¶¶ 19, 47-49, 57). Despite such diagnosis, he is high functioning and well educated, earning associates' and bachelors' degrees in computer technology and computer information sciences. (PIR at ¶¶ 60-61). Defendant also had an extensive work history as a software engineer, the most recent of which was for a local company where he earned approximately $76, 500 annually. (PIR at ¶ 63). He previously served in the military for several years, reenlisting and receiving an honorable discharge. (PIR at ¶¶ 64-65). Prior to his incarceration, Defendant was volunteering as a youth minister at a local church. (PIR at ¶ 11).

         As noted, this Court sentenced Defendant to 151 months' incarceration and a life term of supervised release on July 7, 2016. (Docket No. 76). Defendant did not appeal his conviction or sentence to the Court of Appeals. (See generally Docket Report 14-263). On June 19, 2017, Defendant timely filed his § 2255 Motion and Brief in Support within one year of his sentence becoming final. (Docket No. 79; 80). The Court advised Defendant of his rights under United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and he elected to proceed with the ยง 2255 Motion as filed. (Docket Nos. 81; 82). The Government filed its response in opposition on ...


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