United States District Court, D. Minnesota
E. HUDLESTON AND KATHARINE T. BUZICKY, FOR PLAINTIFF.
E. MATTOX, FOR DEFENDANT.
Patrick J. Schiltz United States District Judge
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.
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
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.
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
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.
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.
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.
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.
119 at 26. At the conclusion of the hearing, the Court
clearly informed ...