United States District Court, S.D. Indiana, New Albany Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
RELIEF PURSUANT TO 28 U.S.C. § 2255
WALTON PRATT, JUDGE
matter is before the Court on a Motion to Vacate, Set Aside
or Correct a Sentence pursuant to 28 U.S.C. § 2255. For
the reasons explained in this Order, the Motion of Robert
Daniel Taylor (“Taylor”) for relief is
granted in part and denied in part. To the
extent that Taylor is permitted to file an appeal related to
his sentencing, his Motion is granted. In
all other respects, the Motion denied. In
addition, the Court finds that a certificate of appealability
should not issue.
The § 2255 Motion
motion pursuant to 28 U.S.C. § 2255 is the presumptive
means by which a federal prisoner can challenge his
conviction or sentence. See Davis v. United States,
417 U.S. 333, 343 (1974). A court may grant relief from a
federal conviction or sentence pursuant to § 2255
“upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). The scope of relief
available under § 2255 is narrow, limited to “an
error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in
a complete miscarriage of justice.” Borre v. United
States, 940 F.2d 215, 217 (7th Cir. 1991) (internal
December 15, 2015, Taylor was charged in an indictment with
one count of possession of matter containing child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
On June 28, 2016, a Petition to Enter a Plea of Guilty and
Plea Agreement with a stipulated factual basis was filed
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B)
wherein Taylor agreed to plead guilty to the charge in the
indictment. United States v. Taylor, No.
4:15-cr-00028-TWP-VTW (“Cr. Dkt.”), dkt. 40. As
part of the agreement, Taylor further agreed and stated that
he understood that although the government would recommend a
sentence within the advisory guidelines range, the Sentencing
Guidelines are not mandatory or binding on the Court, but are
advisory in nature, and the ultimate sentence would be at the
discretion of the Court. Id. at ¶ 5. The United
States and Taylor also entered into certain Sentencing
Guideline stipulations, but agreed that they were only
recommendations to the Court. Based on the 2015 version of
the Sentencing Guidelines, the following was agreed to:
• The base offense level is 18. U.S.S.G. §
• Two levels are subtracted because there is no evidence
of intent to distribute. U.S.S.G. § 2G2.2(b)(1);
• Two levels are added because the material involved
prepubescent minors. U.S.S.G. § 2G2.2(b)(2);
• Four levels are added because the material involved
sadistic or masochistic conduct. U.S.S.G. § 2G2.2(b)(4);
• Five levels are added because the defendant engaged in
a pattern of activity involving sexual abuse of a minor.
U.S.S.G. § 2G2.2(b)(5);
• Two levels are added because the material involved the
use of a computer. U.S.S.G. § 2G2.2(b)(6); • Five
levels are added because there were more than 600 images.
U.S.S.G. § 2G2.2(b)(7)(D).
• Two levels of reduction based on Taylor's
acceptance of responsibility. U.S.S.G. § 3E1.1(a); and
• An additional level of reduction to be requested by
motion after Taylor entered a plea of guilty. U.S.S.G. §
Id. at ¶ 21. Taylor's final
offense level in the plea agreement was calculated to be 31.
Id. Ultimately, in the revised presentence
investigation report, the probation officer noted that the
two-level reduction from U.S.S.G. § 2G2.2(b)(1) was
inapplicable because, in order for that to apply, the
defendant's base offense level had to be 22 -
Taylor's base offense level was 18. Cr. Dkt. 41 at 3. The
Court accepted the calculation in the revised presentence
report and determined that Taylor's offense level was 33.
also expressly waived his right to appeal the conviction
imposed in this case on any ground. Cr. Dkt. 40 at ¶ 22.
However, he waived his right to appeal the sentence only in
the event the Court sentenced him to 120 months or lower,
regardless of his criminal history category or how the
sentence was calculated by the Court. Id.
September 9, 2016, the Court accepted Taylor's guilty
plea and sentenced him to 135 months of imprisonment to be
followed by 10 years of supervised release. Cr. Dkt. 44.
Judgment was entered on September 19, 2016. Id.
28, 2017, Taylor filed a motion for post-conviction relief
pursuant to 28 U.S.C. § 2255. On July 2, 2017, the Court
ordered the United States to respond to Taylor's 28
U.S.C. § 2255 motion. Taylor did not file a reply, and
the time to do so has passed.
seeks relief pursuant to § 2255 arguing that: (1) the
United States breached the plea agreement by ultimately
asking for, under the Sentencing Guidelines, a total offense
level of 33 and not the agreed-upon 31, rendering the plea
agreement invalid; and (2) the Court committed clear error in
applying the five-level enhancement pursuant to U.S.S.G.
§ 2G2.2(b)(5) after finding that Taylor engaged in a
pattern of activity involving sexual abuse of a minor. Taylor
further argues that his counsel provided ineffective
assistance for: (1) failing to object to the sentence
enhancement; (2) failing to object to and insist on the
government's adherence to the plea agreement; (3)
coercing him to accept the plea agreement; (4) refusing his
request for a hearing on pre-trial release; and (5) failing
to file an appeal on his behalf.
United States argues that Taylor cannot show the United
States breached the plea agreement, that he stipulated to the
§ 2G2.2(b)(5) enhancement, and that he voluntarily and
knowingly entered his guilty plea agreement. The United
States further argues that Taylor cannot show ineffective of
counsel for failing to file an appeal where an appeal waiver
was in place.
“Breach” of the Plea Agreement
argues that the United States breached the terms of his plea
agreement by failing to recommend a sentence based on a total
offense level of 31 points, and instead asking for a total
offense level of 33 points, and that this breach renders the
a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be
part of the inducement or consideration, such promise must be
fulfilled.” Campbell v. Smith, 770 F.3d 540,
546 (7th Cir. 2014) (citing Santobello v. New York,
404 U.S. 257, 262 (1971)). Under these circumstances, a
prosecutor's breach of a plea agreement can be
actionable. Id. “However, if the breach is
insubstantial, immaterial, technical, or cured, then the
defendant is entitled to no relief.” Id.
(citing United States v. Diaz-Jimenez, 622 F.3d 692,
694 (7th Cir. 2010); Hartjes v. Endicott, 456 F.3d
786, 790 (7th Cir. 2006)).
explained above, the United States and Taylor entered into
certain stipulations regarding the Sentencing Guidelines.
See Cr. Dkt. 40 at ¶ 21. As part of the
stipulations, the parties understood and agreed that
“these Stipulations are binding on the parties but are
only a recommendation to the Court and that the
Court will determine the advisory sentencing guidelines
applicable in this case.” Id. However, in
making its calculations, the prosecutor improperly included a
two-level reduction that was not permitted under the
Sentencing Guidelines. Ultimately, in preparing the
presentence investigation report, the probation officer
correctly arrived at a total offense level of 33 - and not
the parties stipulated level 31. Cr. Dkt. 41 at 7-8. Taylor
did not object to any portion of the presentence
investigation report. Id. at 19. Thereafter, the
Court determined that the total offense level was 33.
two months later, after Taylor had ample time to consider the
presentence investigation report, Taylor appeared at the
sentencing hearing before this Court. The Court reviewed the
plea agreement with Taylor (Cr. Dkt. 57 at 26:25-28:23) and
he was made aware of the error in the calculation - Taylor
had no objection at that time:
THE COURT: … And if the Government makes a motion
today, one additional level for your acceptance of
responsibility will be awarded, and that will make your final
offense level 31. Do ...