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Silva v. United States

United States District Court, W.D. North Carolina, Asheville Division

August 12, 2019




         THIS 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].[1] The Petitioner is represented by attorney Randolph Marshall Lee.

         I. BACKGROUND

         The 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 ¶ 5(b)(ii), (d)(i)].

         On 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.].

         On June 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 following:

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].

         On June 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].

         The 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 9].

         In 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].

         The 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.].

         Noting 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 5-6].

         The 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].

         During 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.[2][Id. at 14-16].

         The 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 22-23].

         After 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].

         The 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].

         On 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 ¶ 26].

         II. ...

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