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United States v. Ram

United States District Court, W.D. Arkansas, Fayetteville Division

April 16, 2018

UNITED STATES PLAINTIFF/RESPONDENT
v.
SANTOSH RAM DEFENDANT/PETITIONER

          MAGISTRATE JUDGE REPORT AND RECOMMENDATION

          HONORABLE JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE

         Before the court is the Petitioner's Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. Section 2255 (Doc. 84 and 89) filed May 26, 2016 and June 22, 2016. The United States of America filed a Response (Doc. 94) on August 26, 2016. The Petitioner filed a Reply (Doc. 106) on October 31, 2016. The matter was reassigned to the undersigned on April 10, 2018 and the matter is ready for Report and Recommendation.

         I. Background

         On March 8, 2013, a criminal complaint was filed against Santosh Ram alleging he violated 18 U.S.C. § 2422(b), namely Online Enticement of a Minor, on or about March 6, 2013, in the Western District of Arkansas. On April 24, 2013, Ram was named in a one-count Indictment filed in the Western District of Arkansas charging that on or about September 18, 2011, and continuing through and including October 16, 2011, Ram, using a computer connected to the internet, knowingly attempted to persuade, induce, entice, and coerce an individual whom he believed was 11 years of age, to engage in any sexual activity for which any person can be charged with a criminal offense, namely Arkansas Code Annotated Section 5-14-103 (Statutory Rape), in violation of Title 18, United States Code, Section 2422(b). (Doc. 12). Said charge carries a statutory range of a minimum of ten (10) years and a maximum of Life.

         On April 25, 2013, Kim Weber, petitioner's retained attorney, entered her appearance (Doc. 9) and on April 30, 2013, Ram appeared with counsel, Kim Weber, for arraignment and entered a not guilty plea. (Doc. 17).

         On August 28, 2013, Ram, represented by Weber, appeared before the Honorable Jimm Larry Hendren. At said hearing, the parties informed the Court that they had reached a plea agreement whereby Ram would plead guilty to an information and the Government would dismiss the indictment at sentencing. Accordingly, Ram waived his right to prosecution by indictment and consented to prosecution by information. (Doc. 28). An Information was filed that same day charging the defendant with Receipt of Child Pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1). (Doc. 29). The statutory penalty range of said offense is five (5) years to twenty (20) years. Thereafter, Ram appeared with counsel, Kim Weber, before the Honorable Jimm Larry Hendren for his initial appearance, arraignment, and a change of plea hearing. A written plea agreement was presented to the Court that set forth that Ram would agree to plead guilty to the Information charging him with knowing receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). (Doc. 31).

         On December 18, 2013, the Probation Office filed Ram's final Presentence Investigation Report (“PSR”). (Doc. 38). The PSR assessed a base offense level of 22 pursuant to U.S.S.G. § 2G2.2(a)(2). (PSR, ¶ 44). Ram's base offense level was decreased by two pursuant to § 2G2.2(b)(1) but increased by two because a computer was used which resulted in an adjusted offense level of 22. (PSR, ¶¶ 45, 46, and 50). After receiving three-levels off for acceptance of responsibility, Ram's total offense level was set at 19. (PSR, ¶¶ 52 - 54). However, Cross References to the Production of Child Pornography guideline were applied which increased Ram's base offense level to 32 pursuant to U.S.S.G. § 2G2.1(a). (PSR, ¶ 56). Ram's offense level was then increased by 4-levels due to specific offense characteristics. (PSR, ¶¶ 57 and 58). After receiving 3-levels off for acceptance of responsibility, Ram's greater total offense level was set at 33. (PSR, ¶¶ 64 - 67). Ram's criminal history category was a I. (PSR, ¶ 70) and based on a total offense level of 33 and a criminal history category of I, Ram's guideline imprisonment range was 135 to 168 months. (PSR, ¶ 70, 93). The United States made one objection to the PSR while Ram made eight. (See Addendum to PSR).

         On February 18, 2014, Ram appeared with counsel, Kim Weber, for sentencing. (Doc. 44). The Court sentenced Ram to 135 months imprisonment, 5 years supervised release, a $10, 000 fine, and $100 special assessment. (Doc. 47).

         Ram filed a notice of appeal on March 4, 2014. (Doc. 49). On appeal, Ram's counsel filed an Anders brief in which she challenged his sentence as being substantively unreasonable. United States v. Ram, 594 Fed.Appx. 317 (8th Cir.2015). Additionally, in pro se submissions, Ram challenged his Guidelines computations and argued his sentence was unreasonable because the Court impermissibly considered his race when fashioning his sentence, among other arguments which the Eighth Circuit rejected. Id. at 317-18. The Eighth Circuit affirmed this Court's judgment. Id. at 318. Ram filed a petition for writ of certiorari on July 29, 2015 (Doc. 73) which was denied on October 7, 2015 (Doc. 75).

         On May 26, 2016, Ram filed an initial motion pursuant to 28 U.S.C. § 2255. (Doc. 84). However, the Court found the motion to be unnecessarily lengthy and directed Ram to file an amended motion consisting of no more than 25 pages. (Doc. 86). On June 22, 2016, Ram filed his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 89) and brief in support (Doc. 90) arguing (A) Actual Innocence, (B) Insufficient Evidence, (C) Ineffective Assistance of Counsel, and (D) Misapplication of Sentencing Guidelines.

         II. Discussion

         A. Petition's Claims:

         The Petitioner has raised a total of twenty one (21) claims in his 2255 motion. Many of the claims have numerous sub-claims and the court will attempt to deal with the Petitioner's claims in the sequence he has placed them.

         1. Actual Innocence:

         The petitioner first contends that he is actually innocent of the “charge I pleaded guilty” to. (Doc. 90, p. 2). The Petitioner also contends that his plea was “involuntary” but asserts no factual basis for his involuntary plea and only contends that he did not “remember” creating a Facebook profile with the name of “Peter Na”. (Id.). The voluntariness of the Petitioner's plea will be dealt with in a subsequent section.

         The Petitioner previously argued his claim of actual innocence before the Eighth Circuit Court of Appeals which held that “his claim of innocence, because it is a non-jurisdictional argument, is foreclosed by his guilty plea.” See United States v. Ram, 594 Fed.Appx. 317 (8th Cir. 2015). The Eighth Circuit Court of Appeals has specifically held that those claims previously litigated and decided adversely to a criminal defendant may not be re-litigated in a § 2255 proceeding. Woods v. United States, 567 F.2d 861, 863 (8th Cir. 1978) (citing Scott v. United States, 545 F.2d 1116, 1117 (8th Cir.1976)).

         2. Insufficient Evidence:

         The Petitioner contends that the evidence was insufficient to “support that any crime had happened.” (Doc. 90, p. 3).

         The Plea Agreement sets forth the factual basis that child pornography images were found on the Petitioner's computer (Doc. 31, ¶3).

         At the change of plea hearing, Ram admitted that the following facts supported his guilty plea:

THE COURT: All right. I'm going to ask Mr. Roberts now to relate on the record the basis for this charge against you as set out in the Information. Now, the reason I do that, Mr. Ram, and I want you to listen carefully, because I have to be sure that what he says actually supports this charge against you. Even if you plead guilty to it, I can't accept your plea unless it's really a crime, unless there's really a basis to support it. So listen carefully, and I'll ask some questions of you when he finishes. Mr. Roberts, please.
MR. ROBERTS: Thank you, Your Honor. On October 14 th 2011, a concerned relative living in Mt. Pleasant, Iowa reported to a local law enforcement that she had discovered that her underage niece had been having sexually explicit conversations online with someone she suspected to be an adult male. At the time of the conversation, the suspect was using the Facebook account name of Peter Na. A review of the online conversation revealed that the suspect repeated requested that the minor turn on her webcam so he could see her nude and see her engage in sexual acts, including masturbation.
In November of 2011, law enforcement obtained the suspect's profile information from Facebook, which revealed it to belong to the defendant, Santosh Ram, Santosh Ram of Rogers, which is in the Western District of Arkansas. Consequently, a federal search warrant was executed at the home of Ram.
During the execution of the warrant, officers confiscated numerous computers and digital storage devices. A forensic examination of at least one of the computers revealed that the suspect -- revealed the suspect profile of Peter Na. During the post-Miranda interview, the defendant admitted that he was in fact the one having conversations with minor females via computer connected to the internet. He specifically told law enforcement that he created Peter Na account in an effort to chat with minors via webcam, and that he in fact did receive several images of their genitalia via webcam over the internet. He further admitted that he did save some of the images to his computer. A forensic examination of his computer revealed that there were several instances in which the defendant received images of minors engaged in sexually explicit conduct. Specifically, on more than one occasion, he received closeup images over the internet of the vaginas of females. Or minor females. Thank you, Your Honor.
THE COURT: Ms. Weber, do you believe that if the information just related by Mr. Roberts were presented to a jury and the jury believed it that it could be sufficient to support a finding of guilt beyond a reasonable doubt on the charge set out in the Information?
MS. WEBER: Yes, Your Honor.
THE COURT: Now, Mr. Ram, as Mr. Roberts spoke, I was looking at the Plea Agreement, and I believe he related what's in Paragraph 3 of the agreement as to what happened here. You told me earlier that was all true. Now that you've heard it, do you still agree that's true?
THE DEFENDANT: Yes, sir.
THE COURT: That's what happened?
THE DEFENDANT: Yes, sir. (Doc. 70, pp. 35-37)

         The Petitioner's claim that there was insufficient evidence to support the plea is clearly without merit.

         3. Ineffective Assistance of Counsel:

         The Sixth Amendment of the Constitution of the United States affords a criminal defendant with the right to assistance of counsel. U.S. Const. amend. VI. The Supreme Court “has recognized that ‘the right to counsel is the right to effective assistance of counsel.' “ Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).

         A defendant “faces a heavy burden” to establish ineffective assistance of counsel pursuant to § 2255. DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000); 2254. Cox v. Wyrick, 642 F.2d 222, 226 (C.A.Mo., 1981) To establish a claim of ineffective assistance of counsel, the Defendant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

         First, under the “deficient performance” component, he must show that his counsel “made errors so serious that counsel was not functioning as the 'counsel' guaranteed [him] by the Sixth Amendment.” Strickland, 466 U.S. at 687. That showing can be made by demonstrating that counsel's performance “fell below an objective standard of reasonableness.” Wiggins v. Smith, 539 U.S. 510, 522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)(internal citations omitted.

         Second, under the “prejudice” component, he 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. see also, i.e. United States v Ledezma-Rodriguez, 423 F.3d 830, 836 (8th Cir. 2005)(post-conviction relief will not be granted on a claim of ineffective assistance of trial counsel unless the petitioner can show not only that counsel's performance was deficient but also that such deficient performance prejudiced his defense).

         To satisfy this “prejudice” prong, Defendant must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . a reasonable probability [meaning] a probability sufficient to undermine confidence in the outcome.” U.S. v. Rice, 449 F.3d 887 at 897 (internal quotations omitted). Thus, it is not sufficient for a defendant to show that the error had some “conceivable effect” on the result of the proceeding because not every error that influences a proceeding undermines the reliability of the outcome of the proceeding. Morales v. Ault, 476 F.3d 545 (8th Cir.2007) (citing Odem v. Hopkins, 382 F.3d 846, 851 (8th Cir.2004)). Additionally, actual prejudice does not exist where a petitioner, at best, suffers the mere possibility of prejudice. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); Prewitt v. United States, 83 F.3d 812, 819 (7th Cir.1996) (mere possibility does not equal actual prejudice). Although the two prongs of the “ineffective assistance” analysis are described as sequential, courts “do not . . . need to address the performance prong if petitioner does not affirmatively prove prejudice.” Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir.1999).

         Also, to the extent that Petitioner's claims arise out the plea process, he must show a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. See Strickland, 466 ...


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