United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER comes before the Court on consideration of the Petitioner's Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255 [Doc. 1] and Respondent's Motion for Summary Judgment [Doc. 11]. For the reasons that follow, Respondent's Motion for Summary Judgment will be granted, and Petitioner's § 2255 motion will be denied and dismissed.
I. FACTUAL BACKGROUND
In December of 2005, Petitioner was employed as the school resource officer for Avery County High School in Avery County, North Carolina. [Trial Tr. at 6]. He also worked as the adviser for the school's "Police Explorers" program. [Id. at 7]. At that time, Jane Doe #1, the victim in this case, attended Avery County High School as a freshman and participated in the Police Explorers program. [Id. at 5]. The victim was born on September 15, 1991. [Id. at 4].
Petitioner befriended Jane Doe #1 and the two communicated regularly via telephone and other means. [Id. at 9]. During the following summer, Petitioner began to engage in sexual contact with Jane Doe #1. [Id. at 10-12].
Petitioner continued to abuse his victim the next school year. He even concocted a phony Police Explorers field trip so he could take her to a hotel room alone for the purpose of having sex with her. [Trial Tr. at 15-17]. While they did not have sexual intercourse on that trip, Petitioner later took the victim to a hotel in Banner Elk where he had sexual intercourse with her. [Id. at 19, 27]. Petitioner continued to have regular sexual contact with the victim throughout the fall of 2006 and spring of 2007. [Id. at 32].
In May of 2007, when the victim was fifteen years old, Petitioner created another field trip for the Police Explorers, this time to the Carowinds amusement park near Charlotte, North Carolina. [Trial Tr. at 33-34]. Petitioner arranged for the group, including himself and the victim, to stay at the Motel 6 in Fort Mills, South Carolina. [Id. at 118-19]. Prior to leaving, Petitioner arranged the hotel reservations so that he would have a room with an adjoining interior door to the room where the victim stayed. [Id. at 35, 38]. Petitioner drove the victim in his own vehicle from Avery County, North Carolina to the South Carolina hotel. [Id. at 35-36]. Petitioner then stayed in the same hotel room as the victim and had sex with her there. [Id. at 40].
II. PROCEDURAL BACKGROUND
Petitioner was named as the sole defendant in a two-count indictment returned by the Grand Jury in this District. In Count One, Petitioner was charged with knowingly transporting a minor from North Carolina to South Carolina with the intent to engage in sexual activity for which he could be charged with a criminal offense under South Carolina law, in violation of 18 U.S.C. § 2423(a). In Count Two, Petitioner was charged with knowingly traveling interstate from North Carolina to South Carolina for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). [Criminal Case No. 1:09-cr-00012, Doc. 3: Sealed Indictment].
Upon his arrest, Petitioner made his initial appearance before U.S. Magistrate Judge Dennis L. Howell, at which time the Federal Defenders of Western North Carolina was appointed to represent him. Petitioner was later arraigned and entered a plea of not guilty to the two counts in the Indictment.
Petitioner's case proceeded to a jury trial on July 13, 2009. The next day, the jury found Petitioner guilty on both counts.
Prior to sentencing, the U.S. Probation Office prepared a presentence investigation report (PSR). Applying the 2006 Guidelines manual, which was in effect at the time that the charged offenses occurred, the probation officer calculated a base offense level of 24 pursuant to U.S.S.G. § 2G1.3(a). The probation officer also recommended a number of enhancements: a two-level enhancement under § 2G1.3(b)(1)(B) because the minor had been in the supervisory control of Petitioner; a two-level enhancement under U.S.S.G. § 2G1.3(b)(2)(B) because Petitioner unduly influenced the minor child to engage in the prohibited sexual conduct; a two-level enhancement under U.S.S.G. § 2G1.3(c)(3)(B) because the offenses involved the commission of a sex act or sexual conduct; and a two-level enhancement U.S.S.G. § 3A1.1(b)(1) because the Petitioner knew or should have known that the minor child was a vulnerable victim. With the application of these enhancements, Petitioner's total offense level was calculated to be 32. With a total offense level of 32 and a criminal history category of I, Petitioner's Guidelines range was calculated to be 121 to 151 months' imprisonment. [Id., Doc. 51: PSR].
Both parties filed objections to the PSR. Pertinent to Petitioner's § 2255 proceeding, the Government contended that the 2008 version of the Guidelines Manual should be applied in calculating Petitioner's sentence, resulting in a base offense level of 28, a total offense level of 36, and a Guidelines range of 188 to 235 months' imprisonment. In response, the probation officer noted that the Guidelines state that the Guidelines Manual in effect on the date of sentencing is to be used unless such use would increase the defendant's punishment in violation of the ex post facto clause. See U.S.S.G. 1B1.11. Because the 2006 version of the Guidelines Manual was in effect on May 13, 2007, and because the application of the 2008 version would increase Petitioner's punishment, the probation officer recommended that the 2006 version be applied. [Id., Doc. 54: Revised PSR at 18].
Petitioner appeared with counsel for his sentencing hearing. At sentencing, the Government maintained its position that the 2008 version of the Guidelines should apply. The Court, however, rejected this argument and applied the 2006 version for the purposes of sentencing. The Court calculated a Guidelines range of 121 to 151 months' imprisonment. The Court imposed a sentence of 151 months, finding that the upper end of the Guidelines range was necessary in ...