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USCA4 Appeal: 17-7559 Doc: 9 Filed: 04/03/2018 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-7559 UNITED STATES OF AMERICA, Plaintiff - Appellee, V. KRISTEN PATRICK DOYLE, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 EASTERN DISTRICT OF VIRGINIA f 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 offense involved distribution" to n[j]f 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.