United States District Court, W.D. Arkansas, Hot Springs Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BARRY A. BRYANT, Magistrate Judge.
Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 46) filed herein by DAVID ALEX SMITH, (hereinafter referred to as "Smith"). Smith is currently incarcerated at United States Penitentiary in Tucson, Arizona. The Motion was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case. A Response was directed by the Court and has been filed. The Court has considered the entire record and, as set out below, recommends this Motion to Vacate, Set Aside, or Correct Sentence be DENIED.
1. Procedural Background:
On April 6, 2011, the federal grand jury in the Western District of Arkansas returned a 13-count Indictment against Smith. ECF No. 1. Counts 1-12 charged Smith with production of child pornography in violation of 18 U.S.C. §§ 2251(b) and (e). Count 13 charged Smith with commission of a felony against a minor under 18 U.S.C. § 2251 by a registered sex offender in violation of 18 U.S.C. § 2260A.
He was appointed counsel, Mr. Morse Gist, and entered pleas of not guilty to all counts. On September 8, 2011, Smith, through counsel, filed a motion to suppress (ECF No. 16). The United States responded on September 19, 2011. ECF No. 17. A hearing was scheduled for September 22, 2011. On September 19, 2011, the suppression hearing was cancelled when the Court was notified Smith had entered into a written Plea Agreement with the United States. ECF No. 18.
On October 6, 2011, Smith appeared before United States District Judge Robert T. Dawson and pled guilty to Counts 1-12 of the Indictment, namely production of child pornography in violation of 18 U.S.C. §§ 2251(b) and (e). The Plea Agreement (ECF No. 19) provided in part as follows:
- there was a maximum penalty of 50 years imprisonment per count, and a mandatory minimum penalty term of imprisonment of not less than 25 years, per count. ECF No. 19, ¶ 10.
- Smith acknowledged no specific sentence had been promised in exchange for his guilty plea. ECF No. 19, ¶ 21.
- Smith acknowledged no promises or threats had been made, other than those in the plea agreement, to induce him to plead guilty. ECF No. 19, ¶ 34(c).
Further, during the change of plea proceeding, Smith testified no one had made any assurances or promises of any kind to get him to execute the Plea Agreement, he understood the terms of the agreement were merely recommendations to the Court, and he understood the Court could impose a sentence more severe than either he or counsel thought he should receive. (ECF No. 43, pp. 4-5). Smith acknowledged he was aware of the maximum and mandatory minimum term of imprisonment, even affirming to the Court that he knew that he would have to serve no less or be sentenced to no less than 25 years imprisonment per count. (ECF No. 43, p. 6).
Judge Dawson ordered a pre-sentence report ("PSR"). The United States Probation Office prepared the PSR pursuant to the United States Sentencing Guidelines ("USSG"). The PSR found a combined adjusted total offense level of 45. Smith's prior criminal record resulted in a criminal history category III. The PSR found a resulting advisory USSG range to be imprisonment for life. ECF No. 27, Amended PSR, ¶ 61.
On June 25, 2012, Smith appeared before Judge Dawson for Sentencing. ECF No. 24. He was sentenced to 50 years imprisonment on each of the 12 counts of conviction, with each sentence to be served concurrently with the others and a lifetime term of supervised release. ECF No. 28. Additionally a $3, 000.00 fine was imposed along with a total of $1, 200.00 in special assessments. ECF No. 28. Count 13 was dismissed pursuant to the plea agreement.
On July 5, 2012, Smith filed his notice of appeal. ECF No. 30. Smith's court appointed counsel assisted him on appeal, and pursuant to Anders v. California, 386 U.S. 738 (1967), said counsel filed a brief arguing: (1) the district court erred in calculating the Guidelines range; (2) a downward variance was warranted based on Smith's age and the abuse he suffered as a child; (3) and the district court did not set out specific facts justifying the sentence imposed. Because of the Anders brief, Smith asked for appointment of new counsel and filed a pro se brief raising the additional arguments: (1) his guilty plea was coerced and (2) the district court lacked subject matter jurisdiction. On April 10, 2013, the United States Court of Appeals for the Eighth Circuit affirmed, holding as follows:
Upon careful review of the prison sentence, we conclude that the court correctly calculated the Guidelines range, that the court sufficiently explained its sentence, and that the court committed no significant procedural error, properly considered and weighed appropriate sentencing factors, and did not impose a substantively unreasonable sentence.
As to Smith's pro se arguments, we conclude that the jurisdictional argument is meritless, and that his coerced-guilty-plea claim is not cognizable in this direct criminal appeal.
Finally, having reviewed the record independently, we have found no nonfrivolous issue for appeal. Accordingly, we grant counsel's motion to withdraw, deny Smith's motion for appointment of counsel, and affirm the judgment of the district court.
United States v. Smith, 501 F.App'x 603, 604 (8th Cir. 2013)(citations ...