United States District Court, D. Minnesota
Nathan
Allen Debruzzi, Petitioner-Defendant, Pro Se.
Laura
M. Provinzino, Assistant United States Attorney, United
States Attorney's Office, counsel for the Government.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK, UNITED STATES DISTRICT JUDGE
INTRODUCTION
This
matter is before the Court on Petitioner-Defendant Nathan
Allen Debruzzi's (“Petitioner-Defendant”)
pro se motion under 28 U.S.C. § 2255 to vacate
his sentence of 108 months' imprisonment and resentence
him. (Doc. No. 48.) The United States of America (the
“Government”) opposes Petitioner-Defendant's
motion. (Doc. No. 59.)
Petitioner-Defendant
claims four grounds for relief, all based upon what he
contends was ineffective assistance on the part of his former
counsel by: (1) refusing to follow Petitioner-Defendant's
wishes throughout his proceedings, (2) telling
Petitioner-Defendant he was not there to help
Petitioner-Defendant, (3) failing to seek an evaluation that
would benefit Petitioner-Defendant's case until prompted
to do so by the Court, and (4) failing to pursue a favorable
sentence by requesting a longer term of imprisonment than was
ultimately imposed. Petitioner-Defendant also contends that
he did not directly appeal his conviction because his
attorney did not apprise him of his rights and options
regarding an appeal. The Government opposes resentencing,
arguing that Petitioner-Defendant's claims of ineffective
assistance of counsel are without merit, and further, that no
evidentiary hearing is warranted because the record
conclusively supports the judgment as entered.
For the
reasons set forth below, the Court respectfully denies
Petitioner-Defendant's motion.
BACKGROUND
Petitioner-Defendant
was charged with four counts by an indictment filed on July
11, 2017. (Doc. No. 1.) Counts 1 through 3 charged
distribution of child pornography in violation of 18 U.S.C.
§§ 2252(a)(2) and (b)(1), and Count 4 charged
possession of child pornography in violation of 18 U.S.C.
§§ 2252(a)(4)(B) and (b)(2). (Id.) The
indictment also included forfeiture allegations pursuant to
18 U.S.C. 2253(a). (Id.)
Pursuant
to a written plea agreement (Doc. No. 24 (“Plea
Agreement”)), on December 1, 2017, Petitioner-Defendant
entered a plea of guilty to Count 1 of the indictment. (Doc.
No. 23 (“Change of Plea Hrg.”).[1]) A Presentence
Investigation Report (“PSR”) was ordered
(id.), and each party filed a sentencing memorandum
setting forth their respective positions (Doc. Nos. 34, 36
(filed under seal)). The PSR included calculations under the
United States Sentencing Guidelines (the
“Guidelines”) factoring in a total offense level
of 39 and a criminal history category (“CHC”) of
I, resulting in an advisory Guidelines range of 262 to 327
months' imprisonment. (Doc. No. 40 (“PSR”)
¶ 94.[2]) The PSR noted that because the statutory
maximum sentence of twenty years was lower than the
Guidelines range, 240 months would be the guideline term of
imprisonment. (Id.) Petitioner-Defendant responded
to the initial version of the PSR that was disclosed to the
parties. (PSR at A.2-3.) Petitioner-Defendant's remaining
objections, as well as one remaining objection from the
Government, were noted in the PSR Addendum and the substance
of the objections was also addressed in
Petitioner-Defendant's first sentencing memorandum among
other arguments. (PSR at A.1-3; Doc. No. 34 (“Def.
Sent. Mem.”) at 2-5.)
Petitioner-Defendant
was sentenced on April 17, 2018. (Doc. Nos. 42, 43.) At
sentencing, this Court adopted the PSR with changes. (Doc.
No. 43 (“Stmt. of Reasons”) Sec. I.)
Specifically, the Court adjusted the total offense level to
34 from 39, overruling the application of a 5-level
enhancement for engaging in a pattern of activity involving
sexual abuse or exploitation of a minor, resulting in a
Guidelines range of 151 to 180 months' imprisonment.
(Id. at B.1, 4, and Sec. III.) The Court pronounced
a sentence of 108 months' imprisonment in total, after
departing downward and granting a downward variance, and
Counts 2 through 4 were dismissed on the motion of the
Government. (Id. Sec. IV; Doc. No. 42 at 1.)
Petitioner-Defendant
did not file a direct appeal. Petitioner-Defendant timely
filed this § 2255 motion and supporting memorandum of
law on April 22, 2019 (Doc. No. 48), which the Government
opposes in its response filed on July 31, 2019 (Doc. No. 59).
The Court granted the Government's motion to confirm
waiver of attorney-client privilege (Doc. No. 52) on May 6,
2019 (Doc. No. 54), and Petitioner-Defendant's former
counsel submitted an affidavit that was filed with the
Government's response (Doc. No. 59, Ex. 1 (“White
Aff.”)).
I.
Plea Agreement
Petitioner-Defendant
signed a Plea Agreement with the Government on December 1,
2017. (Plea Agreement at 7.) The parties agreed that
Petitioner-Defendant would plead guilty to Count 1 of the
indictment and that the Government would move to dismiss the
remaining counts at sentencing. (Id. ¶ 1.) The
parties agreed to the factual basis for the Count 1 and
agreed that by statute, Petitioner-Defendant would be subject
to a mandatory minimum of five years' imprisonment and a
maximum of twenty years. (Id. ¶¶ 2,
4(a)-(b).) The parties also agreed that Petitioner-Defendant
would be subject to a term of supervised release of five
years to life, and that mandatory restitution payments would
be ordered “in an amount to be determined by the
Court.”[3] (Id. ¶ 4(c), (f).)
Petitioner-Defendant waived his right to litigate pretrial
motions and withdrew any motions then pending before the
Court. (Id. ¶ 3.)
The
Plea Agreement addressed the applicable Guidelines, with the
parties stipulating to a base offense level of 22 and
agreeing that a four-level specific offense characteristic
enhancement for materials portraying sadistic, masochistic,
or other depictions of violence would apply, along with a
five-level increase for an offense involving more than 600
images. (Id. ¶6(b).) The parties noted their
disagreement as to the applicability of further enhancements,
with the Government noting its belief that three additional
enhancements totaling a six-level increase should apply.
(Id.) The Government agreed, however, to recommend a
three-level reduction in Petitioner-Defendant's total
offense level for acceptance of responsibility. (Id.
¶ 6(c).) The parties noted their belief that
Petitioner-Defendant's record would place him in CHC I
but specified that this was not a stipulation and that he
would be sentenced based on his true criminal history as
determined through the presentence investigation and would
not be permitted to withdraw from the Plea Agreement.
(Id. ¶ 6(d).) The parties noted that by the
Government's calculations, the Guideline Range would be
an adjusted offense level of 34 combined with a CHC I,
resulting in a range of 151 to 188 months' imprisonment,
while by Petitioner-Defendant's calculations his adjusted
offense level would be 28, which when combined with CHC I
would result in a range of 78 to 97 months of imprisonment.
(Id. ¶ 6(e).) The parties both reserved the
right to make motions for departures at sentencing and to
argue for a sentence outside the Guidelines. (Id.
¶ 6(h).)
The
parties stated their understanding that while they were bound
by their stipulations with respect to Guidelines
calculations, the Court was not. (Id. ¶ 7.) The
parties agreed that the Court “may make its own
determination regarding the applicable Guidelines factors and
the applicable [CHC], ” and “may also depart from
the applicable Guidelines range.” (Id.) Even
if the Court determined that the applicable Guidelines
calculations or Petitioner-Defendant's CHC were different
from those calculated by the parties, they agreed that they
could not withdraw from the Plea Agreement and that this
Court's determinations would govern the sentence imposed.
(Id.) The Plea Agreement contained no waivers of
appeal. (Id.)
II.
Presentence Investigation Report
On the
same day that Petitioner-Defendant entered his plea of
guilty, this Court ordered the United States Probation
Department (“Probation”) to prepare a PSR.
(Change of Plea Hrg.) The PSR stated
Petitioner-Defendant's base offense level to be 22, and
added specific offense characteristics increasing the offense
level by two for material involving a prepubescent minor, a
two-level increase for knowingly engaging in distribution, a
four-level increase for material portraying sadistic or
masochistic conduct or other depictions of violence, a
five-level increase for engaging in a pattern of activity
involving sexual abuse or exploitation of a minor, a
two-level increase for use of a computer or interactive
computer service in the offense, and a five-level increase
for an offense involving 600 or more images, resulting in a
total offense level of 39 after the three-level decrease for
acceptance of responsibility. (Id. ¶¶
31-45.)
The PSR
briefly summarized Petitioner-Defendant's lifelong
experiences of serious abuse and mental and physical health
issues, as well as his lengthy history of different
treatments with varying levels of success. (Id.
¶¶ 48-76.) It also summarized the findings of a
psychosexual evaluation performed by two mental health
professionals over a period between November and December of
2017 which supported diagnoses Petitioner-Defendant
previously received. (Id. ¶ 77-78.)
The PSR
calculated that under the Guidelines, the total offense level
of 39 combined with a CHC of I resulted in a range of 262 to
327 months' imprisonment, but because the statutory
maximum was a term of twenty years, the guideline term was
likewise 240 months' imprisonment. (Id. ¶
94.) The PSR noted that this range was not the same as that
contemplated by either of the parties in the Plea Agreement
due to the addition of the five-level enhancement for a
pattern of activity involving sexual abuse. (Id.
¶ 96.)
The
parties' unresolved objections to the PSR were noted in
its addendum. (Id. at A.1-2.) The Government
objected to the application of the five-level enhancement not
contemplated in the Plea Agreement. (Id. at A.1.)
Petitioner-Defendant also objected to the application of this
enhancement, as well as to the other increases that the
Government supported in the Plea Agreement. (Id. at
A.2.)
III.
Petitioner-Defendant's ...