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United States v. Ray

United States District Court, District of Kansas

April 23, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
AUSTIN ALAN RAY, Defendant.

MEMORANDUM AND ORDER

ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

Petitioner Austin Alan Ray (“Petitioner”) brings this Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 66). Because review of Petitioner’s motion and the accompanying court record conclusively shows that he is not entitled to relief, this Court denies the motion without an evidentiary hearing.

I. Factual and Procedural Background

On March 2, 2011, Petitioner was charged with one count of knowingly and intentionally receiving and distributing, by computer, visual depictions of minors, the production of which involved the use of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2). Petitioner initially pleaded not guilty and was ordered released on a $25, 000 unsecured appearance bond with supervision. On August 22, 2011, Petitioner appeared before this Court and entered a plea of guilty to the knowing, intentional, and unlawful receipt of child pornography.[1] He did so without a plea agreement.

In its presentence investigation report (“PSR”), the Probation Office assigned Petitioner a total offense level of thirty-four (34), calculated as follows: (1) a base offense level of twenty-two (22), (2) a two-level enhancement because the material on Petitioner’s computers involved prepubescent minors, (3) a four-level enhancement because the material portrayed sadistic or masochistic conduct or other depictions of violence, (4) a two-level enhancement for Petitioner’s use of a computer, (5) a five-level enhancement because Petitioner had received more than 600 images, and (6) a two-level enhancement because Petitioner’s offense involved the distribution of child pornography. The PSR also recommended a three-level downward adjustment given Petitioner’s acceptance of responsibility and his timely guilty plea. Given Petitioner’s criminal history category, which was determined to be category I, Petitioner’s sentencing range under the Sentencing Guidelines was 151 to 188 months imprisonment.

In both written and verbal responses, Petitioner objected to the two-level enhancement for distribution of child pornography. Petitioner argued that the government had not offered any evidence that Petitioner distributed child pornography or that any of his downloaded files had been shared with another computer. Petitioner alternatively argued that, even if such file sharing had occurred, it had been unintentional. Petitioner therefore urged this Court to adopt a two-level reduction under USSG § 2G2.2(b)(1) because his conduct “was limited to the receipt or solicitation” of child pornography and involved no intent to distribute.[2] At sentencing, the government conceded that: (1) it could make no direct showing that the files on Petitioner’s computers had been shared with other computers, and (2) it could not prove that the “share” function on Petitioner’s version of the software[3] used to download the pornographic images was purposely enabled by Petitioner, rather than being a standard default setting. However, the government argued that Petitioner’s use of a peer-to-peer file-sharing program constituted a “generic distribution” that triggered the two-level enhancement as a matter of law. This Court overruled Petitioner’s objections and accepted the PSR’s calculation of an offense level of thirty-four (34) and a criminal history category of I.

This Court ultimately sentenced Petitioner to 102 months imprisonment, well below the Guideline recommendation. In rendering its decision, the Court explained that it took into consideration a number of factors, including the brutality and quantity of the images in Petitioner’s possession, the need for deference to Congress’s penal determinations, the local community’s expressions of support for Petitioner, and Petitioner’s personal characteristics, including his youth and professed desire for rehabilitation. This Court also placed Petitioner on a seven-year term of supervised release, which required Petitioner to register as a sex offender. In addition to the standard conditions of supervised release, this Court also imposed seventeen (17) special conditions which included, among other things:

(1) no unsupervised contact with minors unless approved by the probation officer;
(2) successful participation in a mental health treatment program and/or sex offender treatment program;
(3) submission and maintenance of his current computer inventory, as well as a monthly record of his computer use and bills relating to computer access, to the probation officer;
(4) no access of any on-line, computer, or Internet services, sites, or media that include or feature material that depicts sexually explicit conduct involving adults or minors;
(5) no possession or control of any material that depicts sexually explicit conduct involving adults or minors;
(6) consent to periodic unannounced and/or random examinations of his computer, Internet-capable devices, hardware, and software, which may include retrieval and copying of all data from his computer(s) or removal of such equipment;
(7) submission of his person or property to searches at a reasonable time and in a reasonable manner based upon reasonable suspicion of contraband or evidence of a violation of one of the conditions of his release; and
(8) successful participation in an approved program for substance abuse, abstain from the use of alcohol and other intoxicants during his participation in the program, and share in the costs.

Petitioner filed a direct appeal, alleging the following assignments of error: (1) inappropriate application of the two-level enhancement for distribution of child pornography; (2) violation of his Fifth and Sixth Amendment rights to due process and a jury trial because of this enhancement; (3) flouting the commands of 18 U.S.C. § 3553 by giving more than the permissible level of deference to the Sentencing Guidelines, refusing to consider Petitioner’s history as a victim of sexual abuse, and erroneously concluding that Petitioner had deleted the pornographic images only in anticipation of discovery by authorities; and (4) a substantively unreasonable sentence. On February 5, 2013, the United States Court of Appeals for the Tenth Circuit affirmed Petitioner’s sentence.

On October 28, 2013, Petitioner filed a Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 66). In his motion, Petitioner claims ineffective assistance of counsel based on his counsel’s alleged failure to object to and/or appeal some of the special conditions of his supervised release. Petitioner also alleges that his sentence violated his Eighth Amendment right against cruel and unusual ...


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