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United States v. Zauner

United States District Court, Eighth Circuit

December 18, 2013

United States of America, Plaintiff/Respondent,
v.
Donna Mary Zauner, Defendant/Petitioner. Civil Case No. 13-2390 ADM

Karen B. Schommer, Esq., United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

Donna Mary Zauner, pro se.

MEMORANDUM OPINION AND ORDER

ANN D. MONTGOMERY, District Judge.

I. INTRODUCTION

This matter is before the undersigned United States District Judge for consideration of Defendant Donna Mary Zauner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (the "Motion") [Docket No. 72]. For the reasons set forth below, Zauner's motion is denied.

II. BACKGROUND

In August 2010, Zauner responded to an advertisement on the website "Craigslist, " in which Alec Tafolla sought a driving companion for a trip from California to Delaware. See Change of Plea Hr'g Tr. [Docket No. 61] 35. Zauner told Tafolla she and her two daughters needed a ride from Las Vegas to New York, and the three accompanied Tafolla on this trip. Zauner and Tafolla maintained contact, and several weeks after the trip, Zauner told Tafolla she and her children would be moving from New York to Minnesota. Tafolla agreed to drive them. See id. at 35-36. After Zauner and her children arrived in Minnesota, Tafolla began asking Zauner to take pornographic pictures of her daughters, and Zauner did so. Both of Zauner's daughters were under age 12 at the time. Id. at 36-39. Zauner sent these pictures to Tafolla, who lived in Delaware. In all, Zauner took approximately 20 photographs over an extended period of time, and sent them by cellphone to Tafolla. Id. On April 12, 2011, the Government indicted Zauner with four counts related to the production and distribution of child pornography [Docket No. 16].

On August 1, 2011, Zauner pled guilty to Count 2 of the Indictment, producing child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). See Plea Agmt. [Docket No. 40]. The parties stipulated to a total offense level of 43, and the Government agreed to move for a downward departure under United States Sentencing Guideline (U.S.S.G. or "Guideline") § 5K1.1 if Zauner cooperated with Tafolla's prosecution. Id. ¶¶ 6-8.

On November 9, 2011, the United States Probation Office issued Zauner's Presentence Investigation (PSI). The PSI recommended a total offense level of 46, which reflected the victims' ages, Zauner's status as their parent, and the repeated nature of the conduct. PSI ¶¶ 28-56. This calculation also reflected Zauner's acceptance of responsibility. Id. at ¶ 55. Combined with Zauner's Category I criminal history, the Guideline imprisonment range for Zauner was a life sentence. However, because the statutory maximum sentence was 30 years, the Guideline sentence became 360 months. The statutory minimum sentence for the offense was 15 years. Id. ¶¶ 87-88.

On December 21, 2011, the Court sentenced Zauner to 216 months (18 years) of imprisonment and 15 years of supervised release. See Sentencing Hr'g Tr. [Docket No. 62] 19-20. It also ordered mandatory restitution in the amount of $20, 000, for which Zauner and Tafolla were held jointly and severally liable. Id. at 20. Zauner appealed her sentence, and on August 16, 2012, the Eighth Circuit Court of Appeals affirmed. United States v. Zauner , 688 F.3d 426 (8th Cir. 2012).

Zauner now moves the Court under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence.

III. DISCUSSION

28 U.S.C. § 2255 provides a person in federal custody with a limited opportunity to collaterally attack the constitutionality, jurisdictional basis, or legality of her sentence. See United States v. Addonizio , 442 U.S. 178, 185 (1979). Relief is reserved for violations of constitutional rights and for a narrow range of injuries which were outside a direct appeal and which, if untreated, would result in a miscarriage of justice. See Poor Thunder v. United States , 810 F.2d 817, 821-22 (8th Cir. 1987). "While a guilty plea taken in open court is not invulnerable to collateral attack in a post conviction proceeding, the defendant's representations during the plea-taking carry a strong presumption of verity and pose a ...


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