United States District Court, W.D. Washington, Tacoma
ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C.
J. BRYAN United States District Judge.
matter comes before the Court on the on Petitioner's
“Motion to Expand Record of § 2255 Petition with
Affidavit Rule (7)” (Dkt. 4) and Motion under 28 U.S.C.
§2255 to Vacate, Set Aside, or Correct Sentence (Dkt.
1). The Court has reviewed the pleadings filed regarding the
petition and the remaining file.
seeks 28 U.S.C. §2255 habeas corpus relief from his 144
month sentence imposed after his guilty plea to one count of
conspiracy to engage in sex trafficking by force, fraud, and
coercion in violation of 18 U.S.C. §§ 1591(a)(1)
and 1594(c). Dkt. 1. He claims that he received
ineffective assistance of counsel when: 1) his attorney
failed to object to a miscalculation of his base offense
level, 2) “abandoned” him with his contentions at
sentencing regarding multiple count adjustments, and 3)
“ex post facto cause dealing with supervised
release.” Dkt. 1. For the reasons set forth below, the
motion to expand the record be granted and the petition
should be denied.
BACKGROUND FACTS AND PROCEDURAL HISTORY
citations in this Background Facts and Procedural History
section are to the case management and electronic court
filing (“CM/ECF”) numbers assigned in the
underlying criminal case, United States v. Jackson,
Western District of Washington case 14-5242 RJB, unless
PROCEDURAL HISTORY OF CRIMINAL CASE
September 16, 2014, Mr. Jackson, and his co-defendant James
Young, were indicted on multiple sex trafficking offenses.
Dkt. 29. Mr. Jackson was indicted in: Count 1: Conspiracy to
Engage in Sex Trafficking by Force, Fraud, and Coercion in
violation of 18 U.S.C. §§ 1591(a)(1) and 1594(c);
Counts 3-5: Sex Trafficking through Force, Fraud and Coercion
in violation of 18 U.S.C. §§ 1591(a)(1) and
1591(b)(1); Count 6: Conspiracy to Transport Females for
Prostitution in violation of 18 U.S.C. § 371; and Counts
8-9: Interstate Transportation for the Purpose of
Prostitution in violation of 18 U.S.C. § 2421. Dkt. 29.
Count One, the First Superseding Indictment charges that:
From approximately June of 2013, and continuing through June
of 2014, within the Western District of Washington and
elsewhere, James R. Young and Tony J. Jackson, knowingly did
conspire and agree with each other, in affecting interstate
commerce, to recruit, entice, harbor, transport, provide, and
obtain by any means, adult females, with the knowledge that
force, fraud, and coercion, and any combination of such
means, would be used to cause the adult females to engage in
commercial sex acts.
Id., at 1-2.
Jackson entered into a Plea Agreement with the government.
Dkt. 137. As part of the agreement, Mr. Jackson agreed to
plead guilty to Conspiracy to Engage in Sex Trafficking by
Force, Fraud, and Coercion in violation of 18 U.S.C.
§§ 1591(a)(1) and 1594(c) as charged in Count One
of the First Superseding Indictment. Id. In his Plea
Agreement, Mr. Jackson indicated that he “understands
that the statutory penalties applicable Conspiracy to Engage
in Sex Trafficking by Force, Fraud, and Coercion in violation
of 18 U.S.C. §§ 1591(a)(1) and 1594(c) are as
follows: a maximum term of life imprisonment, a fine of up to
$250, 000.00, a period of supervision following release from
prison of up to five (5) years, and a special assessment of
$100.00.” Dkt. 137, at 2. As is relevant here, the Plea
Agreement further provided that “[n]otwithstanding the
sentencing court's calculation of the applicable
sentencing guideline range, the parties agree to recommend a
sentence of not less than 120 months and not more than 180
months of imprisonment concurrent with any imprisonment
imposed in Western District of Washington Cause Number
14-5584RBL.” Dkt. 137, at 7. The Plea Agreement further
provided that Mr. Jackson acknowledged “that by
entering the guilty plea required by this plea agreement,
[Mr. Jackson] waive[d] . . . [a]ny right to bring a
collateral attack against the conviction and sentence . . .
except as it may relate to the effectiveness of legal
representation.” Id., at 9-10.
Jackson was represented by assigned counsel, Charles Johnston
when he entered his guilty plea on November 20, 2015. Dkt.
presentence investigation report (“PSR”), United
States Probation calculated Mr. Jackson's sentencing
guideline range under U.S.S.G. §2G1.1(a)(1). Dkt. 155,
filed under seal. The PSR recommended the court find that the
Mr. Jackson's base offense level was 34 under the theory
that the conspiracy should be sentenced in the same manner as
the substantive offense - sex trafficking by force, fraud,
and coercion. Dkt. 155, at 5. The PSR recommended that Mr.
Jackson's total offense level be found to be 38, and his
criminal history category was VI. Id. As a result,
the PSR recommended a sentence range of 360 months to life.
Id., at 14.
Jackson's lawyer filed a sentencing memorandum, in which
he agreed that the base offense level was 34, but argued that
his total offense level should be lower, asserting that there
should not have been a 2 level increase for victim J.H. and
argued that the “multiple-count” adjustment
regarding the number of victims was incorrect. Dkt. 170. Mr.
Johnston agreed that Petitioner's criminal history
category was VI and argued that Petitioner should receive a
ten year sentence, the minimum of the agreed sentencing
recommendation range. Id.
April 22, 2016, the Court conducted a sentencing hearing.
Dkts. 175 and 259. Mr. Johnston was present and represented
Mr. Jackson. Id. At the hearing, Mr. Johnston
discussed Mr. Jackson's difficulties in life, and argued
that Petitioner's net offense level should be 31. Dkt.
259, at 3. The Court then turned to the question of the
multiple count adjustment. Dkt. 259, at 3. Mr. Johnston,
though he did not agree with Mr. Jackson, allowed Mr. Jackson
to address the Court regarding his position. Dkt. 259, at
3-4. After Mr. Jackson addressed the Court, the undersigned
Well, you know, it is clear that I am not a fan of the
guidelines, and this is another case where, however we
compute the guidelines, all parties agree that the sentence
should be less than the low end, low range of the guidelines.
So this is mostly an academic exercise.
Even with an offense level of 31, and a history of VI, we get
to a guideline range of 188 to 235 months. In light of the
complexity of the grouping issues, and Mr. Jackson's
objections, I am inclined to just make a finding that the
range is 188 to 235 months, because that finding gives the
defendant the benefit of the doubt and will not affect the
sentencing in this case.
Dkt. 259, at 5. Mr. Jackson's counsel then argued that he
should be sentenced to ten years. Dkt. 259, at 8-13. The
government argued he should be sentenced to 15 years. Dkt.
259, at 6. Mr. Jackson was sentenced to 144 months of
imprisonment. Dkt. 198. At the sentencing hearing, Mr.
Jackson was sentenced to ten years of supervised release.
Dkt. 259, at 16. He objected at the hearing, and argued he
should only get five years. Dkt. 259, at 19. The undersigned
told the lawyers to check the proper term and submit it to
the Court. Id. On May 18, 2017, an Amended Judgment
was entered, sentencing Mr. Jackson to 144 months of
imprisonment and five years of supervised release. Dkt. 198,
Jackson did not file an appeal. On January 27, 2017, he filed
the instant Motion under 28 U.S.C. §2255 to Vacate, Set
Aside, or Correct Sentence. Dkt. 268; refiled as Dkt. 1 in
this case Jackson v. ...