USCA4 Appeal: 17-7559 Doc: 9 Filed: 04/03/2018 Pg: 1 of 2
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-7559
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
V.
KRISTEN PATRICK DOYLE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, Chief District Judge. (2: 12-cr-00039-RBS-TEM- 1; 2:17- cv-00567-RBS)
Submitted: March 29, 2018 Decided: April 3, 2018
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Kristen Patrick Doyle, Appellant Pro Se. Elizabeth Marie Yusi, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 17-7559 Doc: 9 Filed: 04/03/2018 Pg: 2 of 2
PER CURIAM:
Kristen Patrick Doyle appeals the district court's order denying relief on his 18
U.S.C. § 3582(c)(2) (2012) motion! We have reviewed the record and find no reversible
error. Accordingly, we grant leave to proceed under the Criminal Justice Act, 18 U.S.C.
§ 3006A (2012), and affirm for the reasons stated by the district court. United States v.
Doyle, No. 2:12-cr-00039-RBS-TEM-1 (E.D. Va. Nov. 9, 2017). We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
* The district court construed Doyle's 28 U.S.C. § 2255 (2012) motion as an 18 U.S.C. § 3582(c)(2) motion. Case 2:12-cr-00039-RBs-TEM Document 25 Filed 11109/17 Page 1 of 10 PagelD# 185
£"" UNITED STATES DISTRICT COURT /7 f EASTERN DISTRICT OF VIRGINIA Norfolk Division
KRISTEN PATRICK DOYLE,
Petitioner,
V. CIVIL ACTION NO. 2:17cv567 (ORIGINAL CRIMINAL NO. 2:12cr391
UNITED STATES OF AMERICA,
Respondent.
ORDER
This matter comes before the court on the Petitioner's pro
se Motion to Vacate, Set Aside, or Correct a Sentence, pursuant
to 28 U.S.C. § 2255 ("Motion"), filed on October 25, 2017. ECF
No. 24.1 For the reasons set forth below, the court CONSTRUES the
Petitioner's Motion as a motion for a sentence reduction,
pursuant to 18 U.S.C. § 3582(c) (2), and DENIES the Motion. I.
On November 19, 2010, a Task Force Officer assigned to the
Houston FBI Innocent Images Squad located a computer that was
offering over three hundred (300) files with names consistent
with child pornography images on a peer-to-peer ("P2P")
file-sharing network. Statement of Facts ¶ 1, ECF No. 9. The
The court accepts the Motion as effectively filed on the date the Petitioner certifies he placed it in the. prison's internal mailing system. See Houston v. Lack, 487 U.S. 266, 270-72 (1988) (articulating the prison mailbox rule) Case 2:12-cr-00039-RBS-TEM Document 25 Filed 11/09/17 Page 2 of 10 PagelD# 186
officer was able to download four (4) of those files, and found
that two of them contained child pornography. Id. ¶ 2. Using an
administrative subpoena, the officer discovered that the
computer's IP address was assigned to the Petitioner's
residence. Id. ¶ 3.
On January 13, 2011, after the officer executed a state
search warrant at the Petitioner's residence, the Petitioner
provided him with a voluntary statement. Id. ¶ 4. In the
statement, the Petitioner "indicated that he did have child
pornography images and videos in his possession and he used P2?
software to download and share child pornography." Id. ¶ 5. The
Petitioner "made it clear that he understood how P2P works and
that items in the shared folder were available to others." Id.
On April 24, 2012, the Petitioner pleaded guilty to Counts
One and Two of a two-count Indictment. ECF No. 8. Count One
charged the Petitioner with Distribution of Child Pornography,
in violation of 18 U.S.C. H 2252A(a) (2) (B) and 2252A(b) (1) , and
Count Two charged him with Possession of Child Pornography, in
violation of 18 U.S.C. §S 2252A(a) (5) (B) , 2252A(b) (2) , and
2256(8) (A). Criminal Indictment, ECF No. 1.
A presentence investigation report (PSR") was prepared on
June 19, 2012, and an addendum was added on July 9, 2012. ECF
Nos. 13-14. The PSR gave the Petitioner an adjusted offense
level of thirty-four (34), which included a two-level
2 Case 2:12-cr-00039-RBS-TEM Document 25 Filed 11109/17 Page 3 of 10 PagelD# 187 4ppei
enhahcement for distribution of child pornography, pursuant to
U.S.S.G. § 2G2.2(b) (3) (F). PSR Worksheets A, D, EC? No. 14. The
PSR then calculated the Petitioner's Guideline Range to be one
hundred fifty-one (151) months to one hundred eighty-eight (188)
months. PSR Worksheet D. Neither the Petitioner nor the United
States objected to the § 202.2(b) (3) (F) enhancement. See Def. 's
Position Paper at 1, ECF No. 17; U.S. Position Paper at 1, ECF
No. 18.
At the sentencing hearing on July 25, 2012, this court
granted the Petitioner's motion for a downward variance, see
Statement of Reasons at 3, ECF No. 22, and rendered a sentence
below his Guideline Range, imprisoning the Petitioner for a term
of one hundred thirty-two (132) months on Count One, and one
hundred twenty (120) months on Count Two, to be served
concurrently. Judgment at 2, ECF No. 21. The Petitioner also
received twenty (20) years of supervised release on each count,
to run concurrently. Id, at 3. The Petitioner did not appeal,
and his judgment became final on August 8, 2012.2
The Petitioner brings the instant Motion requesting a
sentence reduction pursuant to 28 U.S.C. § 2255. Mot. at 6. In
2 A judgment becomes final "when the time for seeking [its] review expires." Clay v. United States, 537 U.S. 522, 532 (2003). The Petitioner would have had fourteen days to file a notice of appeal, see Fed. R. App. P. 4(b)(1)(A), but he chose not to. Therefore, the Petitioner's judgment became final on August 8, 2012, fourteen days after its entry on July 25, 2012. 3 Case 2:12-cr-00039-RBS-TEM Document 25 Filed 11/09/17 Page 4 of 10 PagelD# 188 WW 6 14pr
support, the Petitioner notes Amendment 801 to the United States
Sentencing Guidelines, effective November 1, 2016, which inserts
a mens rea element into the two-point enhancement for
distribution of child pornography under U.S.S.G.
§ 2G2.2(b)(3) (F). Id. at 2. when the petitioner was sentenced in
2012, the distribution enhancement language in § 2G2.2(b) (3) (F)
lacked an explicit "knowledge" requirement. U.S.S.G. App. C,
amend. 801 (Nov. 2016) (changing the enhancement from "[i)f the n[j]f offense involved distribution" to the defendant knowingly
engaged, in distribution.") (emphasis added) .. The Petitioner
therefore argues that Amendment 801 now requires the government
to prove a "knowledge" element in order to apply the two-point
enhancement under § 2G2.2(b) (3) (F). Mot. at 2.
The Petitioner then argues that without this two-level
enhancement, his base offense level drops to thirty-two (32),
giving him a Guidelines Range of one hundred twenty-one (121) to
one hundred fifty-one (151) months. Id. at S. The Petitioner
further requests to receive the same nineteen (19) month
downward variance that the court granted him at sentencing,
which would leave him with a reduced sentence of one hundred and
two (102) months. Id.
But see Part III (explaining that although the language of § 2G2.2(b) (3) (F) previously omitted an explicit knowledge requirement, the Fourth Circuit had implied one prior to Amendment 801's enactment). Case 2:12-cr-00039-RBS-TEM Document 25 Filed 11109/17 Page 5 of 10 PagelD# 189
II.
Title 28 U.S.C. § 2255(f), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L.
No. 104-132, § 105, 110 Stat. 1214 (1996), provides a one-year
statute of limitation to move the court to vacate, set aside or
correct the sentence. Section 2255, as amended by AEDPA,
provides in relevant part:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—
the date on which the judgment of conviction becomes final;
the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
Under section 2255(f), the Petitioner's Motion is untimely.
He neither filed it within the one-year limitation period ,4 nor
The Petitioner's judgment became final on August 8, 2012, see supra note 2 and accompanying text, and he filed the instant 5 Case 2:12-cr-00039-RBS-TEM Document 25 Filed 11/09/17 Page 6 of 10 PagetD# 190 rPPn
is the amendment to the Sentencing Guidelines a "newly
recognized [right] by the Supreme Court." See United States v.
Brown, 868 F.3d 297, 301 (4th Cir. 2017) (finding that "only the
Supreme Court can recognize a new right under § 2255(f) (3)").
Additionally, review under § 2255 is "limited to constitutional
and jurisdictional challenges," and thus "guideline claims
ordinarily are not cognizable in § 2255 proceedings." United
States v. Goines, 357 F.3d 469, 477 (4th Cir. 2004) . Therefore,
28 U.S.C. § 2255 is the inappropriate means for the Petitioner
to contest his sentence in light of the Guidelines change.
In contrast, 18 U.S.C. § 3582(c) (2) allows a petitioner to
move for a reduction in the term of imprisonment that was "based
on a sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. § 994(o)." 18 U.S.C.
§ 3582(c) (2). Here, because the Petitioner seeks to reduce his
term of imprisonment based on an amendment to the Sentencing
Guidelines, the instant Motion is properly treated as a motion
for a sentence reduction pursuant to 18 U.S.C. § 3582(c) (2).
Accordingly, the court CONSTRUES the instant Motion as a motion
for a sentence reduction.
Motion on October 25, 2017, see supra note 1 and accompanying text. 01 Case 2:12-cr-00039-RBS-TEM Document 25 Filed 12109/17 Page 7 of 10 PagelD# 191
XII.
A sentencing court may reduce a term of imprisonment
previously imposed when the Guidelines Sentencing. Range has been
lowered, and the amendment lowering the range was made
retroactive by the United States Sentencing Commission. U.S.S.G.
§ 181.10; see also 18 U.S.C. § 3582(c) (2). The substantive
amendments that have been made retroactive are listed in
U.S.S.G. § 181.10(d). A petitioner can obtain relief under
§ 3582(c) (2), only if the substantive amendment applies
retroactively. See United States v. Williams, 808 F.3d 253, 257
(4th Cir. 2015) . Amendment 801 has not been made retroactive.
U.S.S.G. § 181.10; United States v. Nicoll, 694 F. App'x 202,
202 (4th Cir. 2017) (per curiam)
The Petitioner argues that Amendment 801 is automatically
retroactive because it is a clarifying amendment. Mot. at 2; see
also United States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995)
("[Cjourts can give retroactive effect to a clarifying (a
opposed to substantive) amendment regardless of whether it is
listed in U.S.S.G. § 1B1.10.11 ). However, the Fourth Circuit
recently held that Amendment 801 was not retroactive because it
is not listed in § 181.10(d), thereby implicating that it is a
clarifying amendment is one that "changes nothing concerning the legal effect of the guidelines, but merely clarifies what the Commission deems the guidelines to have already meant." Goines, 357 F.3d at 474 (quoting Capers, 61 F.3d at 1109) 7 Case 2:12-cr-00039-RBS-TEM Document 25 Filed 11/09/17 Page 8 of 10 PagelD# 192
substantive amendment, not a clarifying one. See Nicoll, 694 F.
App'x at 202.
Moreover, even if Amendment 801 applies retroactively as a
clarifying amendment, at the time of the Petitioner's
sentencing, the Fourth Circuit had already construed the
"distribution" enhancement under U.S.S.G. § 2G2.2(b) (3) (F) to
exist when one "knowingly usles] a file-sharing program that
allows others to access child pornography files." United States
v. Layton, 564 F.3d 330, 335 (4th Cir. 2009) (emphasis added)
Therefore, when Amendment 861 changed the express language of
§ 2G2.2(b) (3) (F), it did not affect existing law in the Fourth
Circuit, which was already set forth in Layton. See id.
Accordingly, the Petitioner should have objected at the
sentencing hearing, if he believed that he lacked the requisite
mens rea to receive the "distribution" enhancement.
Further, if the Petitioner had objected to the
§ 2G2.1(b) (3) (F) enhancement at sentencing, the court would have
found that the Petitioner "knowingly" distributed the child
pornography. The Statement of Facts, to which both parties
stipulated,' provides that the Petitioner voluntarily told an FBI
officer that "he used P2P software to download and share child
pornography." Statement of Facts ¶ 4-5 (emphasis added). The
6 The Petitioner's stipulation was made under oath as part of the guilty plea proceeding. See ECF Nos. 8, 9. 8 Case 2:12-cr-00039-RBS-TEM Document 25 Filed 11/09/17 Page 9 of 10 PagelD# 193
Petitioner even "made it clear that he understood how P2P works and that items in the shared folder were available to others."
Id. ¶ 5. By examining the Statement of Facts alone, a preponderance of the evidence clearly shows that the Petitioner knew he was sharing and distributing child pornography. See
United States v. Benkahia, 530 F.3d 300, 312 (4th Cir. 2008)
("Sentencing judges may find facts relevant to determining a
Guidelines range by a preponderance of the evidence ..... Iv.
For the foregoing reasons, the Petitioner's Motion is construed as a motion pursuant to 18 U.S.C. § 3582, and it is
DENIED. The denial is without prejudice to the Petitioner's ability to bring a "true" motion pursuant to 28 U.S.C. § 2255, but the court advises the Petitioner of the one-year statute of limitation on § 2255 motions, see 28 U.S.C. § 2255(f),'
The Petitioner may appeal from this Order by sending, within fourteen (14) days of the date of entry to this Order, a written notice of appeal to the Clerk of the united States
District court, U.S. Courthouse, 600 Granby Street, Norfolk,
Virginia 23510.
See supra Part II. EI Case 2:12-cr-00039-RBS-TEM Document 25 Filed 11/09/17 Page 10 of 10 PagelD# 194
/4r4 The Clerk is DIRECTED to send a copy of this Order to the
Petitioner and the United states Attorney at Norfolk.
IT IS SO ORDERED. Rebecca Beach Smith Chief Judge REBECCA BEACH SMITH CHIEF JUDGE
November 6 , 2017
Im