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United States v. Michael

United States District Court, W.D. Arkansas, Fort Smith Division

October 30, 2017

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
ANTOINE LEBEUX MICHAEL DEFENDANT/PETITIONER

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed April 24, 2017. (ECF No. 33). The United States of America filed a response on May 25, 2017. (ECF No. 38). Petitioner filed a reply to the Government's response on June 26, 2017. (ECF No. 39). The matter is ready for Report and Recommendation.

         I. Background

         On October 28, 2015, Defendant/Petitioner, Antoine Lebeux Michael (“Michael”), was named in an Indictment charging him with two counts of knowingly crossing a State line with the intent to engage in a sexual act with a person who had not attained 12 years of age, all in violation of 18 U.S.C. § 2241(c). (ECF No. 1). Michael was arrested on November 24, 2015 (ECF No. 13), and he appeared for arraignment on the same date, whereupon he entered a not guilty plea to each count of the Indictment. (ECF No. 8). James B. Pierce, Assistant Federal Public Defender, was appointed to represent Michael. (ECF Nos. 8, 10). Granted leave of Court (ECF Nos. 14, 15), the Government filed an Amended Indictment (ECF No. 16) on January 21, 2016 which corrected the spelling of Michael's first name.

         On January 21, 2016, Michael appeared with his counsel before the Hon. P. K. Holmes, III, Chief U.S. District Judge, for a change of plea hearing. (ECF No. 17). A written Plea Agreement (ECF No. 18) was presented to the Court, and Michael pleaded guilty to Count One of the Amended Indictment. The Court accepted the plea and ordered a presentence investigation. (ECF No. 17).

         An initial Presentence Investigation Report (“PSR”) was prepared by the United States Probation Office on February 29, 2016. (ECF No. 20). On March 11, 2016, the Government advised that it had no objections to the PSR. (ECF No. 22). On March 18, 2016, Michael advised that he had three objections to the PSR. (ECF No. 24). Two of Michael's objections concerned enhancements reported in the PSR[1]. Michael objected to the two-level obstruction of justice enhancement[2], and he also objected to the five-level Chapter Four enhancement for engaging in a pattern of activity involving prohibited sexual conduct[3]. A Second Amended Notice of Objections to Presentence Investigation Report was filed by Michael on March 29, 2016; it presented further argument in support of his objection to the five-level Chapter Four enhancement. (ECF No. 27).

         On March 31, 2016, a final PSR was submitted to the Court. (ECF No. 28). The Probation Officer addressed Michael's objections in an Addendum to the PSR, and no significant changes were made to the PSR. (ECF No. 28-1). The final PSR determined that Michael's conduct called for a base offense level of 38. (ECF No. 28, ¶ 30). Since the offense involved the use of a computer, the offense level was increased by two levels. (ECF No. 28, ¶ 31). A two-level increase was assessed for obstruction of justice. (ECF No. 28, ¶ 34). Due to these enhancements, Michael's adjusted offense level was determined to be 42. (ECF No. 28, ¶ 35). A five-level enhancement was assessed pursuant to USSG § 4B1.5(b). (ECF No. 28, ¶ 38). After a three-level reduction for acceptance of responsibility was made, Michael's total offense level was determined to be 44. (ECF No. 28, ¶¶ 36, 37, 39). Michael's criminal history score of one placed him in criminal history category I. (ECF No. 28, ¶¶ 46-47).

         The statutory minimum term of imprisonment for Michael's offense is 30 years and the maximum term is Life. (ECF No. 28, ¶ 78). A total offense level greater than 43 is to be treated as an offense level of 43. U.S.S.G., Commentary to Sentencing Table, Application Note 2. With a total offense level of 43 and a criminal history category of I, Michael's advisory guidelines range was determined to be Life imprisonment. (ECF No. 28, ¶ 79).

         Michael appeared for sentencing on May 11, 2016. (ECF No. 30). The PSR was amended in open court to remove the two-level enhancement for obstruction of justice, and the Court determined that Michael's total offense level was 42 and his criminal history category was I, resulting in an advisory guidelines range of 360 months to Life imprisonment. (ECF No. 30; ECF 32, p. 1). The Court imposed a Guidelines sentence of 360 months imprisonment, lifetime supervised release, no fine, and a $100.00 special assessment. (ECF No. 30). Judgment was entered on May 11, 2016. (ECF No. 31). Michael did not pursue a direct appeal.

         On April 24, 2017, Michael filed his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “motion”). (ECF No. 33). The motion raises two grounds for relief: (1) the appeal waiver cannot serve to preclude argument on the issues raised, or alternatively, the appeal waiver was not validly entered; and, (2) ineffective assistance of counsel for failing to move to dismiss the Indictment on jurisdictional grounds. (ECF No. 33, pp. 3, 4). No supporting facts are stated for either ground in the motion. Attached to the motion is a copy of the signature page of the written Plea Agreement and Michael's Affidavit, sworn under penalty of perjury, that the signature on the Plea Agreement “is not my signature.” (ECF No. 33, pp. 10-11).

         A Memorandum of Law in Support of Motion Under 28 USC Section 2255 was also filed by Michael on April 24, 2017. (ECF No. 35). In it, Michael alleges the Plea Agreement “was unlawfully intered (sic) and not made voluntarily and without understanding of the consequences of the plea and the charged indictment.” (ECF No. 35, p. 1). Michael asserts the same grounds as stated in his motion, but he further states under Ground One that “the district court was in error in calculating the appropriate guidelines sentence range . . ., ” and “the court issued an unreasonable sentence withing (sic) the improperly calculated guideline range . . .” (ECF No. 35, p. 4). Michael claims “[c]ounsel had an opportunity to have the illegally obtained waiver [of appeal] dismissed prior to sentencing, yet counsel failed to grasp this chance[, ]” and “the Petitioner was prejudiced by this failure as he was convicted and sentenced upon an Unconstitutional Plea'd (sic) Agreement.” (ECF No. 35, p. 6). He again avers that the Plea Agreement has an “unknown signature” and that “counsel failed to advise the court of the errouces (sic) plea agreement.” (Id.).

         Regarding his second ground for relief, Michael asserts the Court should dismiss the Indictment because 18 U.S.C. §§ 2241(c), 2251, 2251A and 2253 are “Unconstitutional on their face and as applied to Petitioner.” (ECF No. 35, p. 7). He argues these statutes “exceed congress's power to legislate under the commerce clause . . ., ” and after focusing his discussion on § 2252A[4], he asserts that the Indictment “does not explain how the defendant actually traveled at any time Interstate Commerce . . .” (Id.). Finally, Michael contends his counsel had an opportunity to raise the Commerce Clause issue to seek dismissal of the Indictment, and that the failure to do so resulted in his conviction and sentence “upon an [I]ndictment that should not have resulted in the Plea-Agreement.” (ECF No. 35, p. 11).

         As with his motion, no supporting facts are stated in Michael's Memorandum of Law.

         The United States' response in opposition to the motion was filed on May 25, 2017. (ECF No. 38). Michael filed a reply on June 26, 2017. (ECF No. 39).

         II. Discussion

         “A prisoner in custody under sentence . . . claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). A thorough review of Michael's motion and the files and records of this case conclusively shows that Michael is not entitled to relief, and the undersigned recommends the denial and dismissal of Michael's § 2255 motion with prejudice.

         A. Legal Standard for Ineffective Assistance ...


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