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United States v. Burns

United States District Court, D. Minnesota

October 12, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LEVI WAYNE BURNS, Defendant.

          SARAH E. HUDLESTON AND KATHARINE T. BUZICKY, FOR PLAINTIFF.

          RICK E. MATTOX, FOR DEFENDANT.

          ORDER

          Patrick J. Schiltz United States District Judge

         Defendant Levi Burns was charged with possession and distribution of child pornography. He pleaded guilty to the possession charge, went to trial on the distribution charge, and was convicted by a jury. On December 3, 2015, Burns was sentenced to 252 months' imprisonment and 10 years of supervised release. Burns did not appeal.

         This matter is before the Court on Burns's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF No. 111. Burns alleges that he instructed his attorney, Robert W. Owens, Jr., to file an appeal, but Owens failed to do so. The Court appointed attorney Rick E. Mattox to assist Burns with his motion, and the Court held an evidentiary hearing at which it heard testimony from Burns, Owens, and Burns's father, and received documentary evidence.

         I. BACKGROUND

         A two-count indictment was returned against Burns on November 18, 2014. ECF No. 1. The first count charged him with distributing child pornography. The second count charged him with possessing child pornography.

         On the eve of trial, Burns pleaded guilty to the possession charge, but he decided to go to trial on the distribution charge. ECF No. 76. That distribution charge related to a single video file-the “MinxMan” file-that a law-enforcement officer had downloaded via a peer-to-peer file-sharing network from a “share” folder on Burns's computer.

         At trial, almost none of the material facts were in dispute. Among other things, the parties agreed that Burns had possessed the MinxMan file; that the MinxMan file contained a visual depiction of two minors engaging in sexually explicit conduct; that Burns knew that the visual depiction contained in the MinxMan file was of minors engaging in sexually explicit conduct; and that Burns had knowingly placed the MinxMan file in the share folder on his computer. See ECF No. 82 at 8. Moreover, Burns did not dispute that, because he had placed the MinxMan file in the share folder, it was available for download by any member of his file-sharing network. Burns denied, however, that he had knowingly distributed the MinxMan file.

         Burns's argument was creative. Burns said that he wanted to collect child pornography. But, he said, if a member of a peer-to-peer file-sharing network wants to collect child pornography from others, he has to be willing to share child pornography. Otherwise, the child-pornography community will ostracize him as a freeloader. For that reason, Burns placed the MinxMan file in his share folder. But Burns adjusted the “upload” settings of the software related to his file-sharing network so that, if anyone tried to download the MinxMan file from his share folder, the file would download so slowly that the user would soon give up and terminate the download. Thus, argued Burns, although he gave the appearance of being willing to distribute child pornography, he did not, in fact, knowingly distribute child pornography, because he reasonably believed that no one would spend hours trying to download a single video file from his share folder.

         The jury was not persuaded and convicted Burns of distribution. ECF No. 83. The statutory maximum sentence that Burns was facing was 60 years-20 years for possession and 40 years for distribution, the two sentences to run consecutively. See 18 U.S.C. § 2252(b). The United States Sentencing Guidelines recommended that Burns be sentenced to 720 months in prison (the statutory maximum). ECF No. 105 at 1. The government sought a sentence of 480 months. ECF No. 93 at 17. And Burns sought a sentence of 180 months (the statutory mandatory minimum). ECF No. 94 at 9.

         On December 3, 2015, the Court imposed a sentence of 252 months on the distribution charge and 240 months on the possession charge, the two terms to be served concurrently. ECF No. 104. The Court gave many reasons for its decision to give Burns a substantial downward variance, including the following:

Although Mr. Burns was convicted of distributing child pornography, this is essentially a possession case. In order to be able to add to his child-pornography collection, Mr. Burns gave the appearance of distributing child pornography. But, based on the evidence at trial, I have a hard time believing that anyone except Officer Hanson actually downloaded child pornography from Mr. Burns's computer.

         ECF No. 119 at 26. At the conclusion of the hearing, the Court clearly informed ...


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