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United States v. Lamoureaux

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

February 15, 2018

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
DONALD WAYNE LAMOUREAUX 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 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.

         I. Background

         On 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).

         On 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.

         On 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).

         On 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).

         On May 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.

         On June 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).

         An 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).

         On 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.).

         The 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, ¶¶ 42-44).

         Lamoureaux's 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, ¶ 85).

         Lamoureaux 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).

         Lamoureaux 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).

         Lamoureaux 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).

         On 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 (Id.).

         The 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).

         The 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).

         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 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.

         A. Legal Standard for Ineffective Assistance of Counsel Claims

         To 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).

         To 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).

         B. Failure to Investigate and Advance Public ...


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