United States District Court, D. Minnesota
N. ERICKSEN United States District Judge.
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.
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.
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.
Failure to Challenge Jurisdiction.
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.
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).
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.
Failure to Challenge Sentencing Errors.
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.
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.
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
the [district] court reviewed the PSR, heard both parties
argue the § 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 ...