Fasone v. USA, No. 3:2014cv00335 - Document 2 (D. Nev. 2014)

Court Description: ORDER denying 1 Motion to Vacate (2255) as to Vincent Charles Fasone. Signed by Judge Howard D. McKibben on 12/19/2014. (Copies have been distributed pursuant to the NEF - KR)
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Fasone v. USA Doc. 2 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 13 14 15 16 17 ) ) ) Plaintiff, ) ) vs. ) ) VINCENT FASONE, ) ) Defendant. _________________________________ ) UNITED STATES OF AMERICA, 3:12-cr-00091-HDM-VPC 3:14-cv-00335-HDM ORDER 18 Presently before the court is defendant’s pro se motion to 19 vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 20 2255 (#51). The government has responded (#53). Defendant has 21 filed a document entitled “supplemental memoranda,” which, because 22 it was filed two weeks after the government’s response, defendant 23 has not otherwise filed a reply, and the time for filing a reply 24 has expired, the court construes as defendant’s reply (#54). 25 On September 11, 2012, an undercover officer sent an 26 invitation to a chat room entitled “#01111111dad&daughtersex” 27 asking if anyone in Nevada or the Sacramento area wanted “to meet 28 1 Dockets.Justia.com 1 for real and hangout.” 2 private message. 3 if the officer had anyone to share, and the officer responded that 4 he had a seven-year-old daughter. 5 daughter had any friends, the officer mentioned a twelve-year-old 6 babysitter. 7 officer wanted to meet later that week to “have some fun” with 8 “both” girls. 9 defendant sent the undercover officer links to adult pornography A minute later, defendant responded with a During the ensuing conversation, defendant asked When defendant asked if the Later in the conversation, defendant asked whether the In a series of chats over the following days, 10 for the officer to show the girls in order to persuade them to 11 engage in sexual activity. 12 agreed to meet at the officer’s “apartment” on Thursday, September 13 20, 2012. 14 time, confirmed that he intended to engage in sexual activity with 15 both girls, and was subsequently arrested. Defendant and the officer eventually Defendant showed up to the meeting at the designated 16 On October 24, 2012, the grand jury returned a two-count 17 superseding indictment charging defendant with attempted coercion 18 of a minor in violation of 18 U.S.C. § 2422(b) and commission of a 19 felony sex offense by an individual required to register as a sex 20 offender in violation of 18 U.S.C. § 2260A. 21 defendant entered a plea of guilty to both counts without the 22 benefit of a plea agreement. 23 defendant to a term of imprisonment of 150 months on Count 1, and a 24 mandatory consecutive term of 120 months imprisonment on Count 2. 25 Defendant appealed his sentence. 26 Circuit affirmed. 27 motion for relief under 28 U.S.C. § 2255. 28 On January 31, 2013, On May 22, 2014, the court sentenced On March 18, 2014, the Ninth On June 25, 2014, defendant filed the instant Pursuant to § 2255, a federal inmate may move to vacate, set 2 1 aside, or correct his sentence if: (1) the sentence was imposed in 2 violation of the Constitution or laws of the United States; (2) the 3 court was without jurisdiction to impose the sentence; (3) the 4 sentence was in excess of the maximum authorized by law; or (4) the 5 sentence is otherwise subject to collateral attack. 6 Id. § 2255. Defendant advances seven grounds for relief in his petition: 7 (1) 18 U.S.C. § 2422(b) is unconstitutional; (2) the government 8 entrapped defendant into committing the underlying offenses; (3) 9 the court erred in applying an eight-level enhancement because the 10 offense involved a minor under the age of 12; (4) defendant has 11 been shown several conflicting versions of the conditions of his 12 supervised release and does not know which bind him upon release; 13 (5) the court abused its discretion by sentencing defendant to 14 lifetime supervision, prohibiting defendant from consuming alcohol 15 for life, and banning defendant from all forms of pornography; (6) 16 18 U.S.C. § 2260A is unconstitutional; and (7) the court erred by 17 considering and not striking an uncorroborated allegation in the 18 PSR that the defendant had sex with a minor in Asia. 19 I. Constitutionality of 18 U.S.C. § 2422(b) 20 Defendant argues 18 U.S.C. § 2422(b) is unconstitutional 21 because a person may be convicted under it solely for having 22 illicit thoughts. 23 not raise this claim on direct appeal, it is procedurally 24 defaulted, and at any rate the claim is without merit. The government argues that because defendant did 25 “If a criminal defendant could have raised a claim of error on 26 direct appeal but nonetheless failed to do so, he must demonstrate” 27 either “cause excusing his procedural default, and actual prejudice 28 resulting from the claim of error,” United States v. Johnson, 988 3 1 F.2d 941, 945 (9th Cir. 1993), or that he is actually innocent of 2 the offense, Bousley v. United States, 523 U.S. 614, 622 (1998). 3 “[C]ause for a procedural default on appeal ordinarily requires a 4 showing of some external impediment preventing counsel from 5 constructing or raising the claim.” 6 478, 492 (1986). 7 of counsel . . . does not constitute cause and will not excuse a 8 procedural default.” 9 Murray v. Carrier, 477 U.S. “Attorney error short of ineffective assistance McCleskey v. Zant, 499 U.S. 467, 494 (1991). Defendant did not raise this claim on direct appeal. 10 Defendant has not argued or established that he is actually 11 innocent of this offense and has made no effort to show cause for 12 his procedural default. 13 as § 2422(b) is not unconstitutional. 14 Dhingra, 371 F.3d 557, 559 (9th Cir. 2004); United States v. Meek, 15 366 F.3d 705 (9th Cir. 2004). 16 person may not be convicted under § 2422(b) solely for having 17 thoughts; to prove attempt to persuade, induce, entice or coerce a 18 minor into engaging in sexual activity, the government must show 19 the defendant took a substantial step toward completing that 20 criminal act. 21 (9th Cir. 2007). 22 case is fully supported by the record, including defendant’s 23 arrival at the designated meeting place on September 20, 2012. 24 II. Entrapment 25 Further, defendant cannot show prejudice, See United States v. Contrary to defendant’s argument, a See United States v. Goetzke, 494 F.3d 1231, 1235 That defendant took a substantial step in this Defendant argues that his conviction is unlawful because he 26 was the target of a sting operation and thus he was entrapped into 27 committing the crimes. 28 unconditional guilty plea precludes review of this claim. The government argues that defendant’s 4 1 Where a defendant does not assert that his “guilty plea was 2 involuntary” or “that it was made with a misunderstanding of the 3 nature of the charge or the consequences of the plea,” a plea of 4 guilty waives all defenses. 5 578 (9th Cir. 1971). 6 antecedent rulings and cures all antecedent constitutional 7 defects.” 8 Cir. 2005). 9 that he did not understand its consequences. United States v. Davis, 452 F.2d 577, It also waives “all nonjurisdictional United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Defendant has not asserted his plea was involuntary or Accordingly, 10 defendant’s plea of guilty to the charges waived any defenses he 11 may have had thereto, including the defense of entrapment. 12 In addition, defendant has procedurally defaulted this claim. 13 Defendant did not raise this claim on direct appeal. 14 not established that he is actually innocent of this offense and 15 has made no effort to show cause for the procedural default. 16 can defendant show prejudice. 17 government to prove either that it did not induce the crime or that 18 the defendant was predisposed to commit the crime before being 19 contacted by government agents. 20 F.3d 944, 951 (9th Cir. 2003). 21 shown that here. 22 crime involving child pornography, but he responded to an 23 invitation sent by the officer generally to the entire chat room, 24 he initiated plans to meet up, and he chose to send various 25 pornographic links to the officer with the intent that they be 26 viewed by the two minor girls. 27 entrapped is thus clearly without merit. Defendant has Nor A defense of entrapment requires the See United States v. Gurolla, 333 The government clearly could have Not only had defendant been convicted of a prior Defendant’s assertion that he was 28 5 1 2 III. Eight-level Enhancement Defendant argues that the court erred in applying an eight- 3 level enhancement for a minor under the age of 12 because the minor 4 in this case was fictional. 5 enhancement on direct appeal, and the Ninth Circuit affirmed. 6 defendant may not use § 2255 to relitigate issues that were decided 7 on direct appeal. 8 Cir. 1985). 9 on appeal, the claim is procedurally defaulted because it was not Defendant challenged the eight-level A United States v. Redd, 759 F.2d 699, 701 (9th To the extent this argument differs from that asserted 10 raised on appeal. 11 defendant has made no attempt to show cause, and he cannot show 12 prejudice as the eight-level enhancement is proper even where the 13 victim is fictitious. See U.S.S.G. § 2G1.3; United States v. 14 Waltman, 529 Fed. App’x 680, 684 (6th Cir. 2013); United States v. 15 Anderson, 509 Fed. App’x 868, 875 (11th Cir. 2013). 16 IV. Conflicting Conditions of Supervised Release 17 The procedural default is not cured because Defendant asserts he was shown several different versions of 18 the conditions of supervised release and does not know which 19 version controls. 20 sentencing were different from those shown to him by the Probation 21 Office which were different from those in the judgment. 22 government argues that because defendant did not raise this claim 23 on direct appeal, it is procedurally defaulted. 24 also argues that defendant’s assertion that he is confused about 25 his conditions of release is belied by his clear citation to his 26 conditions of supervised release. 27 28 He asserts the conditions he was shown at The The government Defendant did not raise this claim on direct appeal. Defendant has not argued or demonstrated cause for failing to raise 6 1 this argument on appeal, nor has he identified in which ways the 2 various documents allegedly conflicted such that the failure to 3 raise the argument caused him prejudice. 4 is confused about which conditions control, the court advises 5 defendant he is bound by the conditions set forth in the judgment 6 of conviction. (See Doc. #40). 7 V. Alcohol, Pornography and Lifetime Supervision Conditions 8 9 To the extent defendant Defendant argues the court abused its discretion by sentencing defendant to lifetime supervision, prohibiting defendant from 10 consuming alcohol for life, and banning defendant from all forms of 11 pornography without setting forth on the record the basis for such 12 conditions. 13 raise this claim on direct appeal, it is procedurally defaulted. 14 The government argues that because defendant did not Defendant did not raise this claim on appeal and he has made 15 no effort to show cause for the failure to do so. 16 cannot show prejudice. 17 the conditions of supervised release were apparent from the record 18 and were proper. 19 supervision for a sex offense, which this case involved. 20 U.S.S.G. § 5D1.2(b)(2) & app. n. 1; United States v. Daniels, 541 21 F.3d 915, 924 (9th Cir. 2008) (“The district court was within its 22 discretion to conclude that a lifetime term of supervised release 23 was necessary to punish [defendant] for his crime, to rehabilitate 24 him, and to protect the public from future crimes by 25 [defendant].”). 26 vague and was properly applied to rehabilitate the defendant and 27 protect the public. 28 v. Rearden, 349 F.3d 608, 620 (9th Cir. 2003). Further, he The reasons for the court’s imposition of Lifetime supervision is the recommended term of See The pornography prohibition is not overly broad or See Daniels, 541 F.3d at 927-28; United States 7 Finally, the court 1 did not impose a lifetime ban on alcohol but instead banned 2 defendant’s excessive use of alcohol and use of alcohol while 3 participating in the required mental health treatment program. 4 any rate, limitation of the defendant’s alcohol consumption was 5 proper as there was evidence in the record that defendant had a 6 history of substance abuse. 7 743, 748 (9th Cir. 2008); United States v. Betts, 511 F.3d 872, 878 8 (9th Cir. 2007). 9 VI. Constitutionality of 18 U.S.C. § 2260A 10 At See United States v. Vega, 545 F.3d Defendant asserts that § 2260A is unconstitutional under the 11 Fifth, Eighth, Ninth, and Fourteenth Amendments because it applies 12 only to sex offenders. 13 defendant did not raise this claim on direct appeal, it is 14 procedurally defaulted. 15 give substantial deference to the legislature’s determination of 16 the punishment for certain crimes. 17 The government argues that because Further, it argues that the court must Defendant did not raise this claim on direct appeal and has 18 not argued that he is actually innocent of this offense. 19 defendant demonstrated any cause for his failure to raise the issue 20 on appeal, and he cannot show any prejudice. 21 held that § 2260A does not violate various constitutional 22 provisions, including the Eleventh Circuit in an unpublished 23 decision rejecting many of the same arguments defendant has raised 24 here. 25 2011) (holding § 2260A does not violate the Eighth Amendment); 26 United States v. Carver, 422 F. App’x 796, 802 (11th Cir. 2011) 27 (unpublished disposition) (finding that § 2260A does not 28 criminalize the “status” of being a sex offender and thus does not Nor has Several courts have See United States v. Wellman, 663 F.3d 224, 232 (4th Cir. 8 1 violate the Fifth, Eighth, Thirteenth and Fourteenth Amendments). 2 Cf. United States v. Hardeman, 704 F.3d 1266, 1269 (9th Cir. 2013) 3 (upholding conviction under § 2260A and holding that the statute 4 does not violate the Ex Post Facto Clause). 5 that 18 U.S.C. § 2260A is not unconstitutional. 6 VII. Uncorroborated Allegation in Presentence Report 7 The court concludes The PSR noted that during the online chat sessions with the 8 undercover officer, defendant stated that he had previously engaged 9 in sexual activity with children, specifically with a minor in 10 Asia. 11 because the court did not make specific findings as to its 12 reliability, it should have been stricken from the PSR. 13 government argues that because defendant did not raise this claim 14 on direct appeal, it is procedurally defaulted. 15 Defendant argues that this statement was uncorroborated and The Defendant failed to raise this claim on direct appeal and has 16 not shown any cause for doing the failure. 17 any prejudice, as the court’s failure to make specific findings as 18 to the statement’s reliability was not error. 19 state that defendant had sex with a minor in Asia; rather, it 20 stated that during chat sessions defendant told the undercover 21 officer that he had. 22 made that statement, although he argued that it was factually 23 untrue. 24 defendant admitted he made, was properly included in the PSR. 25 Certificate of Appealability 26 Nor can defendant show The PSR did not Defendant admitted at sentencing that he had (Sent. Tr. 18). Accordingly, the statement, which The standard for issuance of a certificate of appealability 27 calls for a “substantial showing of the denial of a constitutional 28 right.” 28 U.S.C. § 2253(c). The Supreme Court has interpreted 28 9 1 2 3 4 5 6 7 8 9 10 11 12 U.S.C. § 2253(c) as follows: Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. 13 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. 14 Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000). 15 further illuminated the standard for issuance of a certificate of 16 appealability in Miller-El v. Cockrell, 537 U.S. 322 (2003). 17 Court stated in that case: 18 19 20 21 22 23 24 25 26 27 28 The Supreme Court The We do not require petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail. As we stated in Slack, “[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484). The court has considered the issues raised by defendant with respect to whether they satisfy the standard for issuance of a 10 1 certificate of appeal and determines that none meet that standard. 2 The court will therefore deny defendant a certificate of 3 appealability. 4 Conclusion 5 To the extent any of defendant’s specific arguments have not 6 been not addressed in this order, the court finds them to be 7 without merit. 8 motion to vacate, set aside, or correct sentence pursuant to 28 9 U.S.C. § 2255 (#51) is DENIED. In accordance with the foregoing, defendant’s 10 IT IS SO ORDERED. 11 DATED: This 19th day of December, 2014. 12 13 ____________________________ UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11