Kimberly A. Svendsen, Esq., United States Attorney's Office, Minneapolis, MN.
Floyd Lee Henry, Jr., pro se.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
This matter is before the undersigned United States District Judge for consideration of Defendant Floyd Lee Henry, Jr.'s ("Henry") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (the "Motion") [Docket No. 65]. For the reasons set forth below, Henry's motion is denied.
On March 8, 2011, Henry was charged by indictment with two counts of inducing travel to engage in prostitution under 18 U.S.C. § 2422(a). As established at his guilty plea, Henry met a minor, F.P., at a nightclub in Minneapolis. Change of Plea Hr'g Tr. [Docket No. 42] ("Plea Tr.") 20. Along with an associate, Henry invited F.P. to travel to Denver, Colorado, and F.P. agreed. Once in Denver, Henry and his associates instructed F.P. on how to engage in prostitution. They also took photographs of F.P., which at Henry's direction were posted on a website as part of a prostitution advertisement. F.P. subsequently engaged in prostitution, and provided the money she received to Henry. Although Henry does not contest that F.P. was a minor during this time, he alleges he did not know she was a minor until later. Id. at 20-22.
On January 6, 2012, Henry pled guilty to the first count of the Indictment [Docket No. 30]. The parties agreed Henry's base offense level was 24 under United States Sentencing Guideline § 2G1.3. See Plea Agmt. [Docket No. 31] ¶ 6(a). The offense level was increased by 2 levels because the offense involved the use of a computer to entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with a minor. Id . ¶ 6(b). The parties further agreed to an additional 2 level increase because the offense involved the commission of a sex act. Id . Combined with a 3 level reduction for Henry's acceptance of responsibility, the parties agreed Henry's total offense level should be 25, and that Henry had either a Category III or IV criminal history, depending on the results of his pre-sentence investigation. Id . ¶¶ (6)d-e. Depending on the outcome of the criminal history determination, Henry faced a guideline range of either 70 to 87 months or 84 to 105 months imprisonment. Henry agreed to waive his right to appeal his sentence if the Court imposed a term of incarceration at or below 105 months. Id . ¶ 10.
On March 12, 2012, Henry filed a pro se motion to remove his court appointed counsel. Mot. to Remove [Docket No. 37]. Henry argued his counsel was ineffective because counsel did not sufficiently consult or communicate legal strategy with Henry. Henry further claimed counsel misled him regarding his possible sentence, and thus "lured" Henry "into pleading guilty with erroneous information." Id.
On March 29, 2012, the United States Probation Office submitted Henry's Pre-Sentence Investigation Report ("PSR"). The PSR recommended a base offense level of 24, with an increase of 2 levels each because the offense involved: (1) unduly influencing a minor to engage in prohibited sexual conduct; (2) using a computer to entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with a minor; and (3) a commercial sex act. PSR ¶¶ 20-24. The PSR also recommended subtracting 3 levels for Henry's acceptance of responsibility. Id . ¶ 29. However, unlike the Plea Agreement between the parties, the PSR concluded Henry had previously engaged in similar acts of inducing prostitution and thus recommended increasing his offense level by 5 to reflect a pattern of prohibited conduct. Id . ¶ 31. Henry's criminal history, the PSR also concluded, placed him in Category IV. Thus, the PSR calculated a total offense level of 32, with a corresponding sentence of 168 to 210 months, followed by a supervised release period of 5 years to life. Id . ¶¶ 87, 90.
Henry, through counsel, objected to several of the PSR's findings. In relevant part, Henry objected to: (1) the inclusion of past conduct not stated in the plea agreement; (2) the undue influence of a minor enhancement, because Henry did not know F.P. was a minor at the time; (3) the 5 level pattern of conduct enhancement; (4) the inclusion of certain older offenses in his criminal history because it increased his total criminal history points; (5) the supervised release period, because the parties had agreed to a supervision period of 3 years; and (6) the PSR's recommended upward departure. Addendum to PSR. Henry's counsel supported these objections in his position on sentencing memorandum [Docket No. 40].
On May 31, 2012, the Court held a status conference during which Henry discussed his pro se motion to remove counsel. See Status Conf. Tr. [Docket No. 69] ("Status Tr."). Henry confirmed his desire to plead guilty to the charged offense, but disputed the manner in which his counsel had handled sentencing issues. Id. at 4-5. The Court stated that although it saw no errors in counsel's sentencing position, new counsel was appointed in light of the seriousness of the penalties involved. Id. at 8.
On August 1, 2012, Henry, along with his newly-appointed counsel, appeared for an evidentiary hearing and sentencing. In response to Henry's objections to the PSR, the Government introduced several exhibits and elicited testimony from FBI Special Agent Janessa Boteler. See generally Sentencing Tr. [Docket No. 70] 2-24. The Court concluded that the PSR's recommended sentence of 168 to 210 months, based on the Government's evidence, was potentially warranted under the law. However, in light of ...