Submitted April 18, 2014.
Appeal from United States District Court for the Southern District of Iowa - Des Moines.
For United States of America, Plaintiff - Appellee: Marc Krickbaum, Assistant U.S. Attorney, U.S. Attorney's Office, Des Moines, IA.
Matthew Leroy Poe, Defendant - Appellant, Pro se, Tucson, AZ.
For Matthew Leroy Poe, Defendant - Appellant: John G. Martens, Martens Law Office, Ames, IA.
Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Matthew Leroy Poe appeals the district court's imposition of a 240-month sentence of imprisonment following his guilty plea for possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). After Poe was initially sentenced, the district court vacated the sentence pursuant to 28 U.S.C. § 2255 because Poe's counsel failed to file a requested appeal and, thus, the court concluded that Poe had received ineffective assistance of counsel. The district court then resentenced Poe to 240 months imprisonment. It is from this resentencing that Poe now brings this direct appeal. We affirm.
In March 2010, law enforcement officials received information that Poe had shown images of child pornography to others. Law enforcement executed a search warrant for Poe's residence and located compact discs and DVDs containing 17 videos of child pornography that had been downloaded from the internet. Five months after the search, Poe was arrested for committing lascivious actions with a minor, and he was later convicted bye a state court of this offense.
In December 2010, Poe was charged by indictment with one count of possession of child pornography. In May 2011, he entered a guilty plea without a plea agreement. At the time of the change-of-plea hearing, the district court noted the statutory minimum (120 months) and statutory maximum (240 months) Poe faced, and Poe acknowledged that he understood these penalties. The district court inquired as to a predicted Sentencing Guidelines range, and the government responded that it believed the Presentence Investigation Report (PSR) would determine Poe's Sentencing Guidelines range to be below the statutory minimum. Poe's counsel agreed with this prediction. The district court then stated, " In that case the mandatory minimum would control." However, at sentencing, the district court calculated Poe's offense level to be 33 with a Category VI criminal history, resulting in an advisory Guidelines range of 235 to 240 months. As relevant to this appeal, Poe received a five-level increase in his offense level for " engag[ing] in a pattern of activity involving the sexual abuse or exploitation
of a minor." See United States Sentencing Commission, Guidelines Manual, § 2G2.2(b)(5). Poe did not object to this increase at sentencing. The district court imposed a 240-month sentence, the statutory maximum. Because the court did not specify that the sentence was to run concurrent with Poe's 10-year state sentence for lascivious actions ...