United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
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 on April 26, 2017. (ECF No.
59). The Government filed its response on May 25, 2017. (ECF
No. 62). Petitioner filed a reply to the Government's
response on June 19, 2017 (ECF No. 63), and he filed an
affidavit to supplement his reply on September 18, 2017 (ECF
No. 64). An evidentiary hearing was held on January 29, 2018.
The matter is ready for report and recommendation.
February 5, 2015, a Criminal Complaint was filed against
Defendant/Petitioner, Donald Wayne Lamoureaux
(“Lamoureaux”), alleging that on or about
February 3, 2015, in the Western District of Arkansas,
Lamoureaux engaged in an online conversation with an
undercover officer in which Lamoureaux made arrangements to
travel out of state for purposes of having sexual relations
with a minor, in violation 18 U.S.C. 2422(a). (ECF No. 1).
Lamoureaux was arrested on February 6, 2015 (ECF No. 8), and
he made his initial appearance on February 9, 2015 (ECF No.
4). James B. Pierce (“Pierce”), an Assistant
Federal Public Defender, was appointed to represent
Lamoureaux. (ECF No's. 4, 6). Lamoureaux waived the
issues of probable cause and detention, and he was ordered
detained and remanded to the custody of the United States
Marshal's Service. (ECF No's. 4, 7).
February 20, 2015, an Entry of Appearance and Motion for
Substitution of Counsel was filed by Rex W. Chronister
(“Chronister”) and Ronald G. Fields
(“Fields”) who advised they had been retained to
represent Lamoureaux. (ECF No. 9). The Motion for
Substitution of Counsel was granted by Text Only Order
entered on February 20, 2015.
February 25, 2015, Lamoureaux was named in an Indictment
charging him with one count of using a facility of interstate
commerce to entice a minor to engage in sexual activity, in
violation of 18 U.S.C. § 2422(b) (Count One), and one
count of attempted coercion or enticement, in violation of 18
U.S.C. § 2422(a) (Count Two). (ECF No. 11). Lamoureaux
appeared with his retained counsel for arraignment on March
4, 2015, at which time Lamoureaux entered a not guilty plea
to the Indictment. (ECF No. 16).
April 15, 2015, Lamoureaux was named in a Superseding
Indictment charging him with one count of using a facility of
interstate commerce to entice a minor to engage in sexual
activity, in violation of 18 U.S.C. § 2422(b) (Count
One), and one count of attempted coercion or enticement, in
violation of 18 U.S.C. § 2422(a) (Count Two). (ECF No.
19). Lamoureaux appeared with his retained counsel for
arraignment on April 24, 2015, at which time Lamoureaux
entered a not guilty plea to the Superseding Indictment. (ECF
No. 23). Lamoureaux requested a detention hearing, and the
detention hearing was held on May 7, 2015. (ECF No. 25).
Lamoureaux was ordered detained and remanded to the custody
of the United States Marshal's Service. (ECF No. 26).
18, 2015, Lamoureaux filed a Motion to Dismiss Count One of
Indictment. (ECF No. 27). In it, Lamoureaux argued that 18
U.S.C. § 2422(b) is “unambiguously directed at the
persuasion, inducement, enticement or coercion of a minor for
sexual activity, and the use of a means of interstate
commerce to do so, ” but that “[t]he statute does
not criminalize the use of such a means to attempt to induce,
persuade, entice, or coerce an adult to cause a
minor to engage in sexual activity.” (ECF No. 27, p.
2). The motion was denied by Order (ECF No. 30) entered on
May 28, 2015.
30, 2015, Lamoureaux appeared with counsel before the Hon. P.
K. Holmes, III, Chief U.S. District Judge, for a change of
plea hearing. (ECF No. 31). A written Plea Agreement (ECF No.
32) was presented to the Court, and Lamoureaux conditionally
pleaded guilty to Count One of the Superseding Indictment
charging him with coercion and enticement of a minor, in
violation of 18 U.S.C. § 2422(b). (ECF No's. 31,
32). The Court accepted the conditional guilty plea and
ordered a presentence investigation. (ECF No. 31).
initial Presentence Investigation Report (“PSR”)
was prepared by the United States Probation Office on
September 2, 2015. (ECF No. 35). On September 14, 2015, the
Government advised that it had no objections to the initial
PSR. (ECF No. 37). On September 21, 2015, Lamoureaux advised
that he had three objections to the initial PSR: he denied
the allegations reported in paragraph 28; he noted that in
addition to his other health conditions reported in paragraph
65, he also has Non-Hodgkin's Lymphoma with chemotherapy
which resulted in dilated cardiomyopathy (underlying cause of
atrial fibrillation) and increased risk of blood clot or
stroke; and, that factors related to the offense and offender
warrant consideration of a sentence below the applicable
Guidelines range. (ECF No. 38).
September 23, 2015, a final PSR was submitted to the Court.
(ECF No. 39). The Probation Officer addressed
Lamoureaux's objections in an Addendum to the PSR. (ECF
No. 39-1). The Probation Officer believed the content of
paragraph 28 was correct as it was derived from investigative
material, but he included Lamoureaux's contention to the
allegations by reference, and it was noted that paragraph 28
had no impact on the Guidelines calculation. (ECF No. 39-1,
p. 1). Paragraph 65 was revised at Lamoureaux's request.
(Id.). No. changes were made to the final PSR in
regard to Lamoureaux's third objection, the Probation
Officer noting that the objection was an argument for a
downward variance that the Court should consider at the time
of sentencing. (Id.).
final PSR determined that Lamoureaux's conduct called for
a base offense level of 28. (ECF No. 39, ¶ 34). A
two-level enhancement was applied pursuant to U.S.S.G. §
2G1.3(b)(3)(A) because the offense involved use of a computer
or an interactive computer service to persuade, induce,
entice, coerce, or facilitate the travel of the minor to
engage in the prohibited sexual conduct. (ECF No. 39, ¶
35). Pursuant to U.S.S.G. § 2G1.3(b)(5), an eight-level
increase was reported because § 2G1.3(a)(3) applied and
the offense involved a minor who had not attained the age of
12 years. (ECF No. 39, ¶ 36). After a three-level
reduction for acceptance of responsibility, Lamoureaux's
total offense level was determined to be 35. (ECF No. 39,
had no criminal history, placing him in criminal history
category I. (ECF No. 39, ¶ 53). The statutory minimum
term of imprisonment is 10 years and the statutory maximum
term of imprisonment is life. (ECF No. 39, ¶ 84). Based
upon a total offense level of 35 and a criminal history
category of I, Lamoureaux's advisory Guidelines range was
determined to be 168 to 210 months imprisonment. (ECF No. 39,
filed a Sentencing memorandum on November 9, 2015 in which he
argued that several factors, including his 15-year military
service, his service as a physician for the U.S. Department
of Veterans Affairs, his age (69), and health conditions,
supported a downward variance to a sentence of 120 months
imprisonment. (ECF No. 42).
appeared for sentencing on November 19, 2015. (ECF No. 44).
The Court imposed a sentence of 180 months imprisonment, 10
years supervised release, no fine, and a $100.00 special
assessment. (Id.). Judgment was entered by the Court
on November 20, 2015. (ECF No. 46).
pursued a direct appeal to the Eighth Circuit Court of
Appeals. (ECF No. 48). Pursuant to his conditional plea of
guilty, Lamoureaux argued on appeal that the District Court
erred in denying his motion to dismiss Count One of the
Indictment. Finding that the facts alleged in the Superseding
Indictment were sufficient to charge Lamoureaux with attempt
to violate 18 U.S.C. § 2422(b) because enticement of a
minor can be attempted through an intermediary adult, the
Eighth Circuit affirmed Lamoureaux's conviction. (ECF No.
57-2); United States v. Lamoureaux, 669 Fed.Appx.
810 (8th Cir. 2016) (unpublished).
April 26, 2017, Lamoureaux 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. 59). The motion raises three grounds for relief: (1)
ineffective assistance of counsel due to trial counsel's
failure to investigate the case and to “advance the
primary defense of Public Authority” (ECF No. 59-1, pp.
1-2); (2) that the conditional guilty plea was not
voluntarily and intelligently entered because the trial court
“erred by not engaging the defendant in developing a
factual basis for a guilty plea, ” specifically on the
element of intent (ECF No. 59-1, p. 2); and, (3) ineffective
assistance of counsel due to appellate counsel's failure
to raise the issue of lack of intent on appeal
United States' response in opposition to the motion was
filed on May 25, 2017. (ECF No. 62). Lamoureaux filed a reply
on June 19, 2017 (ECF No. 63), and he supplemented his reply
with an affidavit filed on September 18, 2017 (ECF No. 64).
undersigned held an evidentiary hearing on January 29, 2018.
(ECF No. 70). Lamoureaux appeared in person and testified on
his own behalf. Two witnesses appeared and testified for the
Government: Rex W. Chronister and Ronald G. Fields
(Lamoureaux's trial counsel).
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 Lamoureaux's
motion, the files and records of this case, and the evidence
presented at the evidentiary hearing, conclusively shows that
Lamoureaux is not entitled to relief, and the undersigned
recommends the denial and dismissal of Lamoureaux's
§ 2255 motion with prejudice.
Legal Standard for Ineffective Assistance of Counsel
prove a claim of ineffective assistance of counsel, a
criminal defendant must demonstrate both that counsel's
performance was deficient, and that counsel's deficient
performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish the
deficient performance prong of the Strickland test,
one must show that counsel's representation fell below
the “range of competence demanded of attorneys in
criminal cases.” Id. at 688. Review of
counsel's performance is highly deferential, and there is
a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.
Id. at 689. Moreover, “[s]trategic choices
made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.”
United States v. Rice, 449 F.3d 887, 897 (8th Cir.
2006) (quoting Strickland, 466 U.S. at 690). Courts
also “do not use hindsight to question counsel's
performance, ” but instead must analyze it according to
counsel's situation at the time of the allegedly
incompetent act or omission. Kenley v. Armontrout,
937 F.2d 1298, 1303 (8th Cir. 1991). If one fails to
establish deficient performance by counsel, the court need
proceed no further in its analysis of an ineffective
assistance of counsel claim. United States v.
Walker, 324 F.3d 1032, 1040 (8th Cir. 2003).
establish the prejudice prong of the Strickland
test, one must demonstrate “that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694. The United States
Supreme Court has clarified that the proper prejudice
analysis is whether “counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Lockhart v.
Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d
180 (1993) (quoting Strickland, 466 U.S. at 687).
Failure to Investigate and Advance Public ...