United States District Court, W.D. North Carolina, Asheville Division
ORDER MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the Petitioner Patrick
Ronald Silva's Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody [CV Doc. 1]; the Government's Motion to Seal
[Doc. 5]; and the Petitioner's Motion for Leave to
Propound Discovery [CV Doc. 9]. The Petitioner is represented by
attorney Randolph Marshall Lee.
Petitioner Patrick Ronald Silva was engaged in trading child
pornography on a popular international photo sharing website.
[CR Doc. 52: PSR at ¶¶ 13(1), 14]. Some of the
files he traded contained sexually explicit depictions of
minors subjected to sadomasochistic treatment. [Id.
at ¶ 18]. At the same time, the Petitioner was also
engaged in an intimate sexual relationship with his
co-defendant Tabatha Black (“Black”), who was
married and had a seven-year-old daughter (“child
victim” or “C.V.”). [Id. at ¶
13(1), (4)]. During the course of their relationship, the
Petitioner asked Black to take sexually explicit photographs
of her daughter and send them to him for his sexual
gratification, and Black complied. [Id. at
¶¶ 13(4), 36]. At the time of his arrest, the
Petitioner had in his possession multiple pornographic images
of C.V., as well as several videos. [Id. at
¶¶ 37-38]. Additionally, the investigation revealed
that the Petitioner had sent videos and images that Black
took of C.V. to other people. [Id. at ¶
April 1, 2014, the Petitioner and Black were charged in a
Bill of Indictment, with multiple child pornography offenses.
[CR Doc. 1: Indictment]. Specifically, the Petitioner and
Black were both charged in Count One with sexual exploitation
of a minor, in violation of 18 U.S.C. § 2251(a).
[Id.]. Additionally, the Petitioner was charged with
sexual exploitation of a minor, and aiding and abetting the
same, in violation of 18 U.S.C. §§ 2251(a),
2251(e), and 2 (Count Two); transportation of child
pornography, and aiding and abetting the same, in violation
of 18 U.S.C. §§ 2252A(a)(1) and 2 (Count Four);
receipt of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(2) (Count Five); and possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)
(Count Seven). [Id.].
6, 2014, the Petitioner entered into a Plea Agreement in
which he agreed to plead guilty to Count One as set forth in
the Bill of Indictment, in exchange for which the Government
agreed to dismiss Counts Two, Four, Five, and Seven. [CR Doc.
32: Plea Agreement]. In the Plea Agreement, the parties made
a series of joint recommendations to the Court, including the
a. That pursuant to U.S.S.G. § 2G2.1(a),
[Petitioner's] base offense level is 32.
b. That the offense involved a minor who had not attained the
age of twelve years.
c. [That] [t]he offense involved distribution.
[Id. at ¶ 7(a)-(c)]. The Petitioner
acknowledged in the Plea Agreement that he understood that
the Court would consider the Guidelines as advisory; that the
Court had not yet determined the sentence and that any
estimate of the likely sentence was “a prediction
rather than a promise”; that the Court had the
discretion to impose any sentence up to the statutory
maximum; and that the Court would not be bound by any
recommendations or agreements made by the Government.
[Id. at ¶ 6]. The Petitioner further agreed in
the Plea Agreement, “in exchange for the concessions
made by the United States, ” to waive his right to
appeal his conviction or his sentence, except on the bases of
ineffective assistance of counsel or prosecutorial
misconduct. [Id. at ¶ 19].
12, 2014, the Petitioner appeared before the Honorable Dennis
L. Howell, United States Magistrate Judge, for a Rule 11
hearing. The Petitioner was placed under oath and was asked a
series of questions by the Magistrate Judge, who recorded his
responses. [CR Doc. 34: Rule 11 Inquiry]. During this
colloquy, the Petitioner averred that he could hear and
understand the Magistrate Judge's questions and that his
mind was clear. [Id. at 1-2]. The Magistrate Judge
advised the Petitioner of the essential elements of the
offense to which he was pleading guilty, as well as the
minimum and maximum penalties. [Id. at 2-3]. In
response to the Magistrate Judge's questions, the
Petitioner affirmatively stated that he understood that the
Court would not be bound by the Sentencing Guidelines in
sentencing him and could impose a sentence greater or less
than the sentence as provided for by the Guidelines.
[Id. at 5]. The Petitioner further stated that he
understood that if the imposed sentence was more severe than
expected or the Court did not accept the Government's
sentencing recommendation, he would still be bound by his
guilty plea and would have no right to withdraw his plea.
[Id. at 5-6].
Petitioner further admitted that he was guilty of Count One
as set forth in the Bill of Indictment; that his guilty plea
was voluntary; that he understood and agreed with the terms
of the written Plea Agreement; and that no promises were made
to him other than the promises contained in that written
agreement. [Id. at 7-8]. The Petitioner also
affirmed that he was waiving his right to appeal.
[Id. at 8]. Based upon the representations and
answers given by the Petitioner, the Magistrate Judge found
that his guilty plea was knowingly and voluntarily made and
that the Petitioner understood the charges, potential
penalties, and consequences of that plea. [Id. at
advance of the Petitioner's sentencing, the Probation
Office prepared a Presentence Report (“PSR”). [CR
Doc. 52: PSR]. The probation officer recommended a total
offense level of 37, based upon a base offense level of 32,
along with an increase of four levels due to the fact that
the child victim was under the age of twelve years, U.S.S.G.
§ 2G2.1(b)(1)(A); an increase of two levels based on the
fact that the offense involved the commission of a sexual act
or sexual contact, U.S.S.G. § 2G2.1(b)(2)(A); an
increase of two additional levels due to the fact that the
offense involved distribution, U.S.S.G. § 2G2.1(b)(3);
and a three-level reduction for acceptance of responsibility,
U.S.S.G. § 3E1.1(b). [Id. at ¶¶
47-49, ¶¶ 55-57]. Based on a total offense level of
37, and a criminal history category of III, the probation
officer recommended an advisory Guidelines range of 262 to
327 months' imprisonment. [Id. at ¶¶
57, 68, 99].
Court held a sentencing hearing on May 28, 2015. The Court
first confirmed that all of the Petitioner's responses to
the Magistrate Judge's questions in the prior Rule 11
proceedings were true and correct. [CR Doc. 69: Silva Sent.
Tr. at 4]. The Petitioner's counsel confirmed that he was
satisfied that the Petitioner understood all of the questions
that were asked of him in the Rule 11 proceedings.
[Id. at 4-5]. The Petitioner confirmed that he was
pleading guilty because he did in fact commit the crime
charged. [Id. at 5]. He further confirmed that he
was pleading guilty voluntarily and not as a result of any
threats, force or promises other than those promise set forth
in the Plea Agreement. [Id.].
that the parties had stipulated to various sentencing
recommendations in the Plea Agreement, the Court confirmed
that the Petitioner understood that the Court was “not
required to accept those facts or those factors simply
because both sides have agreed” and that if the Court
“decline[d] to accept any of those facts or factors in
[its] sentencing decision, [the Petitioner would] not have
the right to withdraw [his] plea.” [Id. at
Petitioner then stipulated that there was a factual basis to
support his guilty plea and that the Court could accept the
facts as set forth in the final PSR as establishing such
factual basis. [Id. at 6-7]. Based upon the
representations made to the Court and the answers given by
the Petitioner, the Court accepted the Petitioner's
guilty plea. [Id. at 7].
the sentencing hearing, the Petitioner's counsel noted
the findings in the PSR that the Petitioner himself was the
victim of sexual abuse at a very early age, that the abuse
had occurred for a seven- to eight-year period, and that the
Petitioner had never been treated or evaluated for such
abuse. [Id. at 9]. Counsel also argued that this
case was “strikingly similar” to another
exploitation case that had recently been before the Court,
wherein a mother was accused of sending pornographic images
of her own child to the mother's co-defendant with whom
the mother was having an affair. Counsel argued that the
mother in that case “was viewed to be far more culpable
in her conduct than that of the male she was having an
extramarital relationship with, ” and thus the mother
received a much harsher sentence than the sentence received
by her male co-defendant. [Id. at 11]. In contrast
to that case, counsel argued that in prosecuting the
Petitioner and Black, the Government had chosen to show favor
to Black, despite the fact that her conduct was, in
counsel's words, “equally as reprehensible and
certainly more culpable than the actions of [the
Petitioner].” [Id. at 14]. Noting that this
Court had sentenced Black to a term of 210 months'
imprisonment just a few weeks earlier, the Petitioner's
counsel argued that the Court should impose a sentence that
was equal to or less than the sentence imposed upon
Black.[Id. at 14-16].
Government argued that the Court should impose a sentence at
the low end of the Guidelines range. In so arguing, the
Government distinguished the other exploitation case cited by
the Petitioner's counsel, noting that the other case
involved a single occasion of solicitation without any
distribution, whereas the Petitioner made a series of
solicitations over a long period of time and distributed the
solicited pornographic images over the internet.
[Id. at 17-21]. The Government noted that the
Petitioner's criminal history was more extensive than the
typical defendant's in an exploitation case.
[Id. at 21]. The Government further noted that other
producers of child pornography had been sentenced to between
262 and 480 months' imprisonment. [Id. at
hearing from both parties as to the appropriate sentence, the
Court imposed a sentence of 262 months' imprisonment, the
low end of the Guidelines Range. [Id. at 25]. In
explaining its reasoning for the sentence imposed, the Court
noted the presence of several aggravating factors, including
the fact that the Petitioner solicited and induced the
creation of the pornographic images and solicited and induced
the mother to participate in the creation of these images and
in the actual molestation of her child. The Court also noted,
however, that it was allowing for “some degree of
reduction” in light of the Petitioner's own history
of sexual abuse and the Petitioner's cooperation with law
enforcement at an early stage of the investigation.
[Id. at 27-28]. The Court entered its Judgment on
June 2, 2015. [CR Doc. 59: Judgment].
Petitioner filed a timely notice of appeal [CR Doc. 61:
Notice of Appeal], arguing that his trial counsel was
ineffective at sentencing in failing to present certain
arguments and in failing to file a motion for a downward
variance or departure. On April 6, 2016, the Fourth Circuit
Court of Appeals dismissed the Petitioner's appeal,
finding that the Petitioner's claims were not reviewable
on direct appeal. [CR Doc. 73: Fourth Circuit Opinion].
April 3, 2017, the Petitioner, through retained counsel,
filed the present motion to vacate pursuant to 28 U.S.C.
§ 2255. [CV Doc. 1]. In his motion, the Petitioner
asserts the following grounds for relief: (1) that trial
counsel was ineffective in advising him to plead pursuant to
the Plea Agreement (Claim 1); (2) that trial counsel was
ineffective in failing to seek suppression of the
Petitioner's statements to law enforcement (Claim 2); (3)
that trial counsel refused to explore and investigate the
Petitioner's claim that the child's underwear found
in his residence during the search came from an adult not
connected to this case (Claim 3); (4) that trial counsel was
ineffective in resisting the Petitioner's desire to move
to withdraw his guilty plea (Claim 4); and (5) that trial
counsel was ineffective at sentencing by failing to seek the
appointment of a forensic psychologist to address the impact
of the Petitioner's childhood sexual abuse and in failing
to advance arguments regarding the need to avoid sentencing
disparities (Claim 5). [CV Doc. 1]. In the affidavit
supporting his Motion to Vacate, the Petitioner states:
“Had I known [at the time of my plea] what I know now,
I would have pled not guilty and sought a plea to the offense
of which I was guilty.” [CV Doc. 1: Silva Aff. at
¶ 25]. He further asks the Court to “strike [his]
guilty plea and plea agreement” so that he may assert
his defenses and “seek a sentence appropriate to my
criminal history, to my level of guilt and consistent with
the factors in Section 3553(a).” [Id. at