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Taylor v. United States

United States District Court, S.D. Indiana, New Albany Division

March 9, 2018

ROBERT DANIEL TAYLOR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255

          TANYA WALTON PRATT, JUDGE

         This 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.

         I. The § 2255 Motion

         A 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 citations omitted).

         II. Factual Background

         On 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. § 2G2.2(a)(1);
• 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. § 3E1.1(b).

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.

         Taylor 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.

         On 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.

         On June 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.

         III. Discussion

         Taylor 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.

         The 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.

         A. “Breach” of the Plea Agreement

         Taylor 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 agreement invalid.

         “[W]hen 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)).

         As 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.

         Almost 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 ...

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