United States District Court, W.D. Missouri, Southern Division
JERRY E. TROUPE, JR., Movant,
UNITED STATES OF AMERICA, Respondent. Crim. No. 10-03038-01-CR-S-ODS
ORDER AND OPINION DENYING MOVANT'S REQUEST FOR POSTCONVICTION RELIEF AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
ORTRIE D. SMITH, Senior District Judge.
Pending is Movant's application for postconviction relief pursuant to 28 U.S.C. § 2255. The Court denies the motion and also declines to issue a Certificate of Appealability.
Movant was indicted in May 2010 on one count of distributing child pornography, one count of receiving child pornography, and one count of possessing child pornography. The Indictment also included a forfeiture allegation, which sought the forfeiture of computer equipment Movant used to download and view the child pornography. In August 2011 Movant and the Government entered a written Plea Agreement, pursuant to which Movant plead guilty to Count II and the forfeiture allegations and the Government agreed to dismiss Counts I and III. The Plea Agreement includes not only Plaintiff's agreement to plead guilty to the charge of receiving child pornography, but also includes factual allegations supporting the charge and his plea. Among the agreed factual allegations is Plaintiff's admission to the investigating law enforcement officers that he "curiously download[ed] images of child porn" and his description of some of those images and movies. The Plea Agreement also included the parties' preliminary Sentencing Guideline calculations; the parties agreed that the Base Offense Level was 22 pursuant to section 2G2.2(a), and the following adjustments would apply:
a four level enhancement pursuant to section 2G2.2(b)(7)(C) due to the number of images,
a two level enhancement pursuant to 2G2.2(b)(6) because a computer was used in the commission of the crime,
a two level enhancement pursuant to section 2G2.2(b)(2) based on the age of some of the children in the pictures/videos, and
a total reduction of three levels for Movant's acceptance of responsibility.
This would have resulted in a total offense level of 27. However, as a matter of law the parties' agreement regarding guideline calculations was not binding on the Court - a circumstance that was specifically mentioned in the Plea Agreement and that was also addressed during the Change of Plea Hearing.
The Presentence Investigation Report ("PSR") also started with a Base Offense Level of 22 and the four adjustments addressed in the Plea Agreement. In addition, the PSR included the following two adjustments:
a five level enhancement pursuant to 2G2.2(b)(3)(B) for distribution for a thing of value (based on Movant's use of a peer-to-peer file sharing program), and
a four level enhancement based on section 2G2.2(b)(4) because some of the images/videos depicted sadistic or masochistic conduct or other depictions of violence.
These adjustments resulted in a total offense level of 36; when combined with Movant's Criminal History Category of III, the Sentencing Guidelines recommended a sentence between 235 to 240 months.
On April 26, 2012 Movant's counsel filed a sentencing memorandum contending, inter alia, Movant did not have the requisite knowledge for the five level enhancement but conceded, however, that Movant "was knowledgeable regarding downloading off of the peer-to-peer program to his computer." Counsel then represented the parties had agreed that Movant should receive a two level enhancement pursuant to section 2G2.2(b)(3)(F), which applies to any method of distribution other than those methods specifically mentioned in section 2G2.2(b)(3). This resulted in an ...