United States District Court, D. Minnesota
David P. Steinkamp, Esq.,
United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.
Mark Matthew Cortes, pro se.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
This matter is before the undersigned United States District Judge for a ruling on Defendant Mark Matthew Cortes' ("Cortes") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [Docket No. 71] ("Motion"). For the reasons set forth below, Cortes' Motion is denied.
On December 3, 2012, Cortes was indicted on one count of production of child pornography in violation of 18 U.S.C. § 2251 (a) and (e). On April 9, 2013, he pled guilty to this count and entered a plea agreement with the Government. The plea agreement stipulated to a base offense level of 32 and included four enhancements and one reduction for acceptance of responsibility. Plea Agreement [Docket No. 39] ¶ 3. Starting from the base level of 32, these adjustments resulted in a minimum offense level of 39. Id . ¶ 5. Based on a Criminal History Category I, the appropriate sentencing range was 262 to 327 months. Id . The plea agreement states "the foregoing stipulations are binding on the parties, but do not bind the Court.... The Court may make its own determination regarding the applicable Guidelines factors." Id . ¶ 6.
The Pre-Sentence Report ("PSR") accepted the stipulated minimum offense level and sentence adjustments. It also recommended a 4-point enhancement for Cortes' "sadistic and masochistic" conduct during his commission of the crime and the Government's requested 5-point enhancement for his status as a repeat and dangerous sex offender. With these additions, the PSR recommended an offense level of 48. In accordance with the Sentencing Guidelines, this level was reduced in the PSR to the maximum level of 43, which carries a recommended sentence of life imprisonment. The PSR ultimately recommended a sentence of 360 months, the statutory maximum sentence under 18 U.S.C. § 2251(e).
On August 22, 2013, Cortes was sentenced to 360 months imprisonment. During the sentencing hearing, this Court asked Cortes whether he was satisfied with his legal representation. Cortes was specifically asked about his attorney's failure to submit a sentencing position to the Court:
Court: And you're satisfied with the services of your counsel in preparing for sentencing?
Cortes: Yes, your Honor.
Court: Any questions about that?
Cortes: No, your ...