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United States v. McGinley

United States District Court, D. Minnesota

April 11, 2018

United States of America, Plaintiff,
v.
Mark David McGinley, Defendant.

          ORDER

          JOAN N. ERICKSEN United States District Judge.

         Defendant Mark David McGinley pleaded guilty to one count of production of child pornography in violation of 18 U.S.C. § 2251(a) and (e). This Court imposed a 360-month sentence. McGinley appealed the sentence and it was affirmed. He now moves to vacate the sentence under 28 U.S.C. § 2255. The Court denies the motion.

         DISCUSSION

         McGinley argues that the Court should vacate his sentence because his counsel was ineffective. McGinley must satisfy two elements to prevail. First, he must show that his counsel was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). Put differently, he must show that his “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. Second, McGinley must show that he suffered prejudice, meaning that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

         McGinley claims that his counsel was ineffective for (1) failing to challenge the Court's jurisdiction, (2) failing to challenge alleged sentencing errors, and (3) failing to challenge the search warrant. All three claims fail.

         I. Failure to Challenge Jurisdiction.

         McGinley insists that his counsel was ineffective for failing to challenge the Court's jurisdiction. He states that “the offense was inside the geographical boundaries of the state of Minnesota.” ECF No. 68 at 8. For that reason, he argues that “the Federal District Court lacked the element of ‘subject matter jurisdiction' in that the offense never affected ‘Interstate Commerce, '” as required by the Commerce Clause and 18 U.S.C. § 2251(a). Id.

         But jurisdiction exists over McGinley's crime. Section 2251(a) criminalizes using materials “mailed, shipped, or transported in or affecting interstate or foreign commerce” to “produc[e] any visual depiction” of “any sexually explicit conduct” involving a minor. In United States v. McCloud, 590 F.3d 560, 568-70 (8th Cir. 2009), the defendant produced child pornography and saved it on a memory card manufactured in Taiwan. The Eighth Circuit Court of Appeals held that, because the memory card was manufactured abroad, it had traveled across state or international lines and, therefore, its use satisfied the requirements of the Commerce Clause and § 2251(a).

         Here, McGinley admitted that he produced child pornography using a Toshiba hard drive manufactured in China. ECF No. 50 at 17-18, 20-21. In other words, McGinley used materials “transported in or affecting interstate or foreign commerce” to produce child pornography. McGinley's crime thus satisfies the requirements of the Commerce Clause and § 2251(a). His attorney was not ineffective for declining to challenge jurisdiction.

         II. Failure to Challenge Sentencing Errors.

         At sentencing, this Court found that McGinley is a Repeat and Dangerous Sex Offender Against Minors and imposed a five-level enhancement pursuant to U.S.S.G. § 4B1.5(b). On direct appeal, McGinley challenged his sentence.

         He first argued that this Court erred in applying the five-level enhancement. The Eighth Circuit explained that the five-level enhancement “applies if ‘the defendant's instant offense of conviction is a covered sex crime . . . and the defendant engaged in a pattern of activity involving prohibited sexual conduct.'” United States v. McGinley, 678 Fed.Appx. 454, 455 (8th Cir. 2017) (quoting U.S.S.G. § 4B1.5(b)). The Eighth Circuit affirmed the enhancement, finding that “McGinley's offense was a covered sex crime” and he “engaged in a pattern of activity” because “he admitted that he engaged in prohibited sexual conduct with a minor on at least two occasions.” Id.

         McGinley next argued that this Court “procedurally erred by failing to consider and explain the § 3553(a) factors, focusing only on public safety, while ignoring a psychosexual evaluation showing that he is treatable and poses a low risk of recidivism.” Id. The Eighth Circuit noted that McGinley's counsel “failed to object to the district court's explanation at sentencing, so this argument was not preserved.” Id. Still, the Eighth Circuit concluded that “the district court's explanation at sentencing was more than adequate to ‘allow for meaningful appellate review.'” Id. (quoting Gall v. United States, 522 U.S. 38, 50 (2007)). It affirmed the sentence, explaining that

the [district] court reviewed the PSR, heard both parties argue the ยง 3553(a) factors, asked detailed questions, noted that the plea agreement allowed McGinley to avoid punishment for 23 other child pornography charges, compared McGinley's offense conduct with that of other child pornographers . . ., and made the sentence concurrent ...

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