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United States v. Hoppy

United States District Court, M.D. Pennsylvania

March 29, 2018

BRADLEY C. HOPPY, Defendant/Petioner.


          A. Richard Caputo, United States District Judge.

         Presently before me is the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 53) filed by Defendant/Petitioner Bradley C. Hoppy (“Hoppy”). For the reasons that follow, the § 2255 motion will be denied and a certificate of appealability will not be issued.

         I. Background

         On January 12, 2010, a two-Count Indictment was returned against Hoppy, charging him with willfully and knowingly receiving and distributing visual depictions of minors engaged in sexually explicit conduct that were mailed, shipped and transported, and which contained materials that were mailed, shipped and transported, in interstate and foreign commerce, by means of computer, and the production of such visual depictions involved the use of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) (Count 1) and with a forfeiture count pursuant to 18 U.S.C. § 2253(a) (Count 2). (See Doc. 1, generally). On September 30, 2010, Hoppy entered into a plea agreement whereby he agreed to plead guilty to receiving and distributing child pornography in violation of § 2252(a)(2) and to forfeiture of all properties identified in Count 2 of the Indictment. (See Doc. 30, ¶¶ 1, 13). Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) (a “(C) plea agreement”), the government and Hoppy agreed “to the following regarding the defendant's offense level, criminal history category, and/or sentence: The defendant shall be sentenced within a range of no less than 120 months and no more than 144 months in prison, a life term of supervised release, a fine, if any, to be determined by the court, and a $100 special assessment.” (Id. at ¶ 12).

         A change of plea hearing was held on November 2, 2010. (See Doc. 34). At the plea hearing, the prosecution set forth the facts which would satisfy the elements of a violation of § 2252(a)(2). Those facts included that on September 1, 2008, an undercover agent entered into an internet chat room and signed into a publically available peer-to-peer file-sharing program where he met Hoppy. The two had a conversation during which Hoppy indicated the type of child pornographic images he had. Hoppy provided the agent with his peer-to-peer user name and invited the agent to be his friend so they could share and trade images over the internet. The agent downloaded 16 files at that time containing child pornographic images. Additionally, in March 2009, another peer-to-peer download was made by an undercover official of additional child pornography images from Hoppy. Based on these incidents, search warrants were obtained and executed at Hoppy's residences. After being advised that he was not under arrest and free to leave, Hoppy informed the agents executing the warrants that he had used file sharing networks to view and trade child pornography. Hoppy, upon questioning at the change of plea hearing, admitted that those facts were all true, and he pled guilty to Count 1 of the Indictment and expressed a willingness to forfeit the items outlined in Count 2. Hoppy's guilty plea was accepted.

         Prior to sentencing, the United States Probation Office prepared a presentence report (the “PSR”). Therein, the offense conduct is set forth in detail, including Hoppy's communications with the undercover law enforcement officer on September 1, 2008 through a peer-to-peer file sharing program where Hoppy stated that he had child pornographic images to trades. (See PSR, ¶ 6). When search warrants were executed at his residences, Hoppy admitted to agents that he exchanged images with other users of the file sharing network. (See id. at ¶ 10). An examination of his computer revealed over 5, 502 images of child pornography. (See id.). Hoppy, through counsel, filed limited objections to the PSR that did not contest the facts forming the basis of his offense. (See Def.'s Objections, generally).

         The PSR utilized the 2010 edition of the United States Sentencing Commission Guidelines Manual to calculate Hoppy's offense level. (See id. at ¶ 21). The base offense level under the Guidelines for a conviction under § 2252(a)(2) was 22. Additionally, Hoppy's offense level was increased by two levels because the materials found on his computer involved a prepubescent minor or a minor under the age of twelve. (See id. at ¶ 24). The offense level was also increased by five pursuant to Guideline § 2G2.2(b)(3)(B) since the offense involved the distribution of child pornography for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. (See id. at ¶ 25). Four levels were also added because the offense involved material portraying sadistic or malicious conduct. (See id. at ¶ 26). Further, two levels were added because a computer was used for the receipt and distribution of the material. (See id. at ¶ 27). Finally, the offense level was increased by five because Hoppy's computer contained 600 or more images. (See id. at ¶ 28). The offense level was then reduced by three due to Hoppy's acceptance of responsibility. (See id. at ¶ 33). Thus, Hoppy's total offense level was 37. (See id. at ¶ 36). And, as Hoppy had no criminal history points, he was determined to have a criminal history category of I. (See id. at ¶ 39). Based on this offense level and criminal history category, the guideline imprisonment range was 210 to 262 months. (See id. at ¶ 65). But, because the statutory maximum term of imprisonment on the offense convicted was 20 years, the applicable guideline range was 210 to 240 months. (See id.). The PSR noted, however, that pursuant to the binding plea agreement, the parties agreed that Hoppy would be sentenced within a range of 120 to 144 months imprisonment. (See id.).

         On April 15, 2011, Hoppy was sentenced to 125 months imprisonment, followed by a life term of supervised release. (See Doc. 46, generally). Hoppy did not file a direct appeal. (See docket, generally).

         On May 4, 2017, Hoppy filed the instant § 2255 motion along with a supporting brief.[1] Hoppy argues that his sentence should be vacated and that he should be resentenced based on revisions to Guideline § 2G2.2(b)(3)(B) which are set forth in Amendment 801 of the Sentencing Guidelines that became effective November 1, 2016. (See Doc. 54, 4-10). According to Hoppy, Amendment 801 constitutes a clarifying amendment to the Guidelines which the Third Circuit has held is of the type that can be presented on collateral review, and, pursuant thereto, he states that the five level enhancement is “inappropriate and unnecessary.” (Id.). With retroactive effect of Amendment 801, Hoppy claims that his adjusted offense level would be 32, and with a criminal history of I, his guideline range of imprisonment would be 121 to 151 months. (See id. at 9). So, Hoppy concludes, if a similar variance from his original sentence is applied, he would be given a new, lighter sentence. (See id.).

         II. Discussion

         Hoppy's § 2255 motion[2] will be denied because the motion is untimely.[3] A § 2255 motion is subject to a one-year statute of limitations. See 28 U.S.C. § 2255(f).

         The one-year limitation period runs from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively ...

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