United States v. Debruzzi

          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 ...