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United States v. Schacher

United States District Court, N.D. Georgia, Atlanta Division

May 31, 2018

DAVID SCHACHER, BOP Reg # 65255-019, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge Justin S. Anand's Report and Recommendation [48] (“R&R”), recommending denial of David Schacher's (“Movant”) Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 [38] (“Motion to Vacate”). Also before the Court are Movant's Objections to the R&R [50].

         I. BACKGROUND

         On September 17, 2013, a grand jury in the Northern District of Georgia returned an Indictment [1][1] charging Movant with three crimes involving child pornography: distribution (Count One) and receipt (Count Two), in violation of 18 U.S.C. § 2252(a)(2), and possession (Count Three), in violation of 18 U.S.C. § 2252(a)(4)(B).

         On April 10, 2014, Movant pled guilty to Count One pursuant to a written plea agreement. ([23.1]). At the plea hearing, Movant acknowledged the following:

1. He understood the trial rights he was willingly forfeiting by pleading guilty, including the right against self-incrimination. ([35] at 8-15).
2. He understood his plea agreement, and he had received no threats inducing him to plead guilty and no promises other than those outlined in the agreement. (Id. at 15-21).
3. He understood from discussions with the government that the calculated sentencing guideline range for his crime of conviction would most likely be 210-262 months, based on an offense level of 37 and a criminal history category of I, and that the government would then move for a variance to reduce his sentencing range to 135-168 months. (Id. at 31-32).
4. He was satisfied with the representation of his two defense attorneys. (Id. at 34).
5. He understood the elements of the crime to which he was pleading guilty and what the government would have to prove to convict him. (Id. at 34-37).
6. He understood that the penalty range for his crime of conviction was a mandatory minimum 5-year sentence and a maximum 20-year sentence. (Id. at 37).
7. He understood that the Court would not be bound by the sentence recommended by the sentencing guidelines or by the government, including any variance the government might recommend. (Id. at 39, 46, 51-52).
8. He understood the effect of his appeal waiver and the appeal rights he was relinquishing. (Id. at 47-48).
9. He had committed the criminal acts described by the government at the hearing, and he was pleading guilty because he was in fact guilty. (Id. at 53-59).

         The Court found that Movant's plea was knowing and voluntary, accepted it, and found him guilty of Count One. (Id. at 61-62).

         On February 19, 2016, Movant's Presentence Report (“PSR”) was issued. ([47]). The PSR calculated Movant's adjusted total offense level to be 37 (PSR ¶ 36), with a recommended sentencing range of 210-262 months' imprisonment. This offense level included a five-level enhancement “because the offense involved distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” (Id. ¶ 26). Without the five-level enhancement, Movant's total offense level would have been 32, and his recommended sentencing range would have been 121-151 months. See U.S.S.G. ch. 5, pt. A, Sentencing Table.

         On July 1, 2014, the Court, after finding that Movant's adjusted offense level was 37, sentenced Movant to a below-guidelines sentence of 145 months. ([33]; [36]). The Court also sentenced Movant to a term of fifteen years of supervised release. ([43.1] at 51). Movant did not file a direct appeal.

         On June 30, 2015, Movant filed his Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. ([38]). Movant presents the following three grounds for relief:

1. [His] offense level was enhanced by five levels based on Probation's conclusion that the offense “involved distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.” [But] there is no assertion in the presentence report or the discovery that [he] actually conducted any in-kind transactions, i.e. bartering or otherwise trading child pornography for other child pornography. Although the PSR [Presentence Report] and the record arguably show that [he] attempted to negotiate such trades, there is no evidence of any completed, in-kind transactions between [him] and others resulting in the acquisition of child pornography. Sentencing counsel did not object to this enhancement, resulting [in his] receiving the five-level enhancement when it was not supported by evidence.
2. On the advice of counsel, [he] entered a plea to distribution - as opposed to possession - of child pornography which, among other consequences, meant that his base offense level began at 22, not 18, as it would for possession. [But] there is no evidence in the record that [he] knowingly distributed child pornography. Because mens rea is an element of every crime which must be proven beyond a reasonable doubt, the government was obliged to prove that [he] knew that he was distributing child pornography in order for him to be guilty under 18 U.S.C. ยง 2252(a)(2) and (b). Because it could not do so, he was only guilty of possessing child ...

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