United States District Court, E.D. Washington
ORDER DENYING § 2255 MOTION
FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE
the Court is Movant's 28 U.S.C. § 2255 Motion to
Vacate, Set Aside or Correct Sentence. (ECF No. 63). The
Motion is submitted by Mr. Jones, who is appearing pro
se in these proceedings.
Jones was indicted on June 7, 2016, for transportation of a
minor with intent to engage in criminal sexual activity. ECF
No. 1. Mr. Jones pled guilty and was sentenced to 120 months
imprisonment and 15 years supervised release. ECF No. 53. Mr.
Jones now challenges his conviction due to intervening
authority, Esquivel-Quintata v. Sessions, 137 S.Ct.
1562 (2017). Mr. Jones asserts that the case establishes that
the federal age of consent is 16. He argues he cannot be
convicted of any federal sex crime for activities between an
adult and 16 year old minor.
relief, Mr. Jones must establish that (1) he is in custody
under a sentence of this federal court; (2) his request for
relief was timely; and (3) the court lacked either personal
or subject matter jurisdiction, the conviction or sentence is
unconstitutional, the conviction or sentence violates federal
law, or the sentence or judgment is otherwise open to
collateral attack. 28 U.S.C. § 2255. Mr. Jones has
proven the first two elements. However, as explained below,
the Court finds that he has not shown that the conviction was
Jones was convicted of transportation of a minor with intent
to engage in criminal sexual activity.
A person who knowingly transports an individual who has not
attained the age of 18 years in interstate or foreign
commerce, or in any commonwealth, territory or possession of
the United States, with intent that the individual engage in
prostitution, or in any sexual activity for which any
person can be charged with a criminal offense,
shall be fined under this title and imprisoned not less than
10 years or for life.
18 U.S.C.A. § 2423(a) (West 2018) (emphasis added). Mr.
Jones admitted in his Plea Agreement that he transported a 16
year old girl in interstate commerce. Plea Agreement, ECF No.
44. He acknowledged that he intended to travel to Virginia to
engage in sexual activity with the girl. Id. He
further agreed that Va. Code. Ann § 18.2-371
criminalizes consensual sex between a 16 year old and an
adult. Id. However, he argues that even though he
acknowledged his conduct, the conviction is illegal because
following Esquivel-Quintana, federal criminal
convictions cannot be sustained for consensual sexual
activity between individuals of the federal age of consent or
Esquivel-Quintana, the Supreme Court examined
whether a statutory rape charge under California law
qualified as an aggravated felony pursuant to the Immigration
and Nationality Act (INA). The INA distinguishes between
deportable and non-deportable criminal offenses. An alien is
subject to deportation if their underlying conviction
qualifies as a deportable offense. According to the INA,
"Any alien who is convicted of an aggravated felony at
any time after admission is deportable." 8 U.S.C.A.
§ 1227 (West 2018). So the Supreme Court had to decide
whether the California statutory rape conviction meets the
federal definition of an aggravated felony. In order to make
this determination, the Supreme Court compared the elements
of California's statutory rape statute to the generic
elements of the crime. The Supreme Court examined each
element of the California law to ensure it does not
criminalize conduct not included in the generic version of
the crime. The Supreme Court concluded that statutory rape
statutes that criminalize consensual sex between parties 16
years or older do not meet the generic definition of an
turned on the definition of an aggravated felony in the INA.
Mr. Jones' statute of conviction is not the INA, so the
issue is not whether Virginia's statutory rape law meets
the generic definition of a corresponding aggravated felony,
but instead whether Mr. Jones intended to engage in "any
sexual activity for which any person can be charged with a
criminal offense." 18 U.S.C. § 2423(a). His statute
of conviction does not depend on the generic definition of
any specific crime because it includes any criminal
offense based on sexual activity. So while the Court concurs
with Mr. Jones that Va. Code Ann. 18.2-371(ii) does not meet
the generic definition of statutory rape, the issue is
immaterial as to whether he engaged in sexual activity for
which any person can be charged with a criminal offense as
required by 18 U.S.C. § 2423(a). Virginia criminalizes
sexual intercourse between a child 15 years or older and an
adult. Mr. Jones acknowledges it was his intention to travel
to Virginia with a 16 year old girl in order to have sex with
her. Mr. Jones could have been charged with a criminal
offense in Virginia regardless of the federal age of consent.
This is sufficient to prove that he met the elements for 18
appeal of this Order may not be taken unless this Court or a
circuit justice issues a certificate of appealability finding
that "the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C. §
2253(c)(2) (West 2013). This requires a showing that
"reasonable jurists would find the district Court's
assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484
(2000). Based on the Court's preceding analysis, the
Court concludes ...