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United States v. Wilcox

United States District Court, Eighth Circuit

December 19, 2013

United States of America, Plaintiff/Respondent,
v.
Kenneth Leon Wilcox, Defendant/Petitioner.

Petitioner, on his own behalf.

Benjamin Bejar, Assistant United States Attorney, Counsel for Respondent.

ORDER

MICHAEL J. DAVIS, Chief District Judge.

This matter is before the Court upon Petitioner's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255.

I. Factual/Procedural Background

On June 15, 2010, Petitioner was charged by Indictment with multiple counts of transportation of a minor with intent to engage in criminal sexual activity and production of child pornography, in violation of 18 U.S.C. §§ 2423(a) and 2251(a), (e). On October 14, 2010, Petitioner entered into a Plea Agreement and pleaded guilty to counts 1 and 2 in the Indictment. (Doc. No. 47.)

In the Plea Agreement, Petitioner stipulated to certain facts underlying the charges to which he entered guilty pleas, including that he transported a minor with the intent to engage in criminal sexual activity, and that he in fact had sexual intercourse with a fourteen year old female in the cab of his truck. He further admitted that he used a Sony Handy Cam video recorder to produce a videotape of a minor female engaging in sexually explicit conduct. At the Plea Hearing, Petitioner again admitted to such conduct while under oath. (Plea Tr. at 19-23.)

The statutory penalty for count 1 was ten years to life, and for count 2, 15 years to 30 years. This Court calculated the applicable sentencing guideline range to be life imprisonment. The Court varied downward from the applicable range and sentenced Petitioner to a term of imprisonment for 480 months, which consisted of 480 months on count 1 and 360 months on count 2.

Petitioner appealed his sentence to the Eighth Circuit Court of Appeals, arguing that a sentence of 480 months was substantively unreasonable because this Court did not give proper weight to his lack of criminal history, his genuine remorse and efforts at rehabilitation and his low risk of recidivism. In addition, Petitioner argued that the Court failed to consider the sexual abuse he experienced as a child. The Eighth Circuit rejected Petitioner's arguments, and affirmed his sentence. United States v. Wilcox , 666 F.3d 1154 (8th Cir. 2012). Final judgment was entered on January 27, 2012. Petitioner filed the instant motion on May 6, 2013.

In his § 2255 motion, Petitioner asserts he is entitled to relief on three grounds: that his convictions are based on tainted or tampered with evidence; unlawful search and seizure; and that this Court was racist and prejudiced against sexual offenders.

II. Statute of Limitations

A petition pursuant to 28 U.S.C. § 2255 must be filed within one year of the latest of four dates:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented ...


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