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Richmond v. United States

United States District Court, E.D. Texas, Sherman Division

April 5, 2019

KENNETH RICHMOND, #22979-078
v.
UNITED STATES OF AMERICA

          ORDER OF DISMISSAL

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         Petitioner Kenneth Richmond, a prisoner confined at F.C.I. Oakdale I, brings this motion to vacate, set aide or correct his sentence (Dkt. #1) pursuant to 28 U.S.C. § 2255. He alleges that his trial attorney was ineffective for failing to object to erroneously applied sentencing enhancements, failing to challenge misleading evidence, and failing to investigate or present any evidence in mitigation. The motion was referred to United States Magistrate Judge Christine A. Nowak, who issued a Report and Recommendation (Dkt #10) concluding that the motion should be denied. Richmond has filed objections (Dkt #12). After conducting a de novo review of the record, the pleadings, and the paper on file, the Court concludes that motion to vacate, set aside or correct Richmond's sentence should be denied.

         Background

         Richmond is in custody pursuant to a conviction for the offense of coercion and enticement, in violation of 18 U.S.C. § 2422(a). The victim was 17 years old at the time of the offense, and Richmond was 39. PSR[1] ¶ 14. The victim ran away from home on June 12, 2014. PSR ¶ 5. She was picked up by an individual named Nicholas Smith, who traded her to Richmond for marijuana. PSR ¶ 5. Over the next two weeks, she had sexual intercourse with Richmond and engaged in sexual intercourse, through prostitution arranged by Richmond, with at least two other men. PSR ¶ 6. The prostitution occurred in Arkansas. PSR ¶ 6. At one point in time, he pulled out a knife and ran the blade up and down her finger signaling what he could do to her if she misbehaved. PSR ¶ 6. She also mentioned two different times where Richmond abused her verbally and physically. PSR ¶ 8. In one instance, she was kicked after ironing his shirts incorrectly. PSR ¶ 8. She was also slapped after being caught attempting to escape. PSR ¶ 8. She finally escaped when he took her to a basketball game in Texas where he was working as a referee. PSR ¶ 6.

         Procedural History

         Richmond was indicted on February 19, 2015. On May 7, 2015, he entered a plea of guilty in conjunction with a non-binding written plea agreement. In the plea agreement, Richmond agreed to a base offense level of 24 pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2G1.3(a)(4). PA ¶ 5(a). Because the offense involved a commercial sex act, the offense level was increased by two-levels pursuant to U.S.S.G. § 2G1.3(b)(4). PA ¶ 5(b). The parties disputed the applicability of U.S.S.G. § 2G1.3(b)(2)(B) concerning whether Richmond unduly influenced the victim, a minor, to engage in sexual conduct, which provides for a two-level increase; thus, the parties reserved the right to argue the applicability of this provision at sentencing. PA ¶ 5(c). The parties also agreed to a reduction of three-levels for acceptance of responsibility under U.S.S.G. § 3E1.1. PA ¶ 5(d). The parties acknowledged they understood that the Court was not bound by the stipulations. PA ¶ 5. Richmond finally specified that he was pleading guilty freely and voluntarily and not the result of force, threats, or promises other than those set forth in the agreement. PA ¶ 10.

         During the change of plea hearing, the Court fully explored whether Richmond's guilty plea was entered knowingly and voluntarily. Richmond stated that it was his intent to plead guilty to Count One of the indictment charging him with coercion and enticement, in violation of 18 U.S.C. § 2422(a). PH Tr. 3. He stipulated that he had discussed all of the facts of the case with his attorney. PH Tr. 4. He stipulated that he was satisfied that his attorney had fully considered his case as well as any defenses he had to the charges. PH Tr. 4. He further stipulated that he was fully satisfied that his attorney had completely advised him. PH Tr. 4. The Court reviewed his constitutional rights with him, and Richmond stated that he understood that he would be giving up those rights. PH Tr. 4-5. The nature of the charges and elements of the offense were reviewed, and he specified that he understood the nature of the charges and the elements of the offense. PH Tr. 5-6. The Court reviewed the range of punishment with a maximum sentence of 20 years of imprisonment, and Richmond stated that he understood the range of punishment. PH Tr. 6. Richmond specified that his attorney had gone over the sentencing guidelines and how they may be used. PH Tr. 8. He acknowledged that he understood that the sentence imposed may be different from the estimate his attorney gave to him. PH Tr. 9. He acknowledged that he was still bound by his plea if the sentence was more severe than he had anticipated. PH Tr. 9.

         The Court proceeded to discuss the plea agreement. PH Tr. 9-11. Richmond specified that he had signed the plea agreement. PH Tr. 9. Richmond stipulated that he had agreed to a base offense level of 24. PH Tr. 10. He specified that he had agreed to a two-level increase because the offense involved a commercial sex act. PH Tr. 10. He agreed that he reserved the right to argue the applicability of § 2G1.3(b)(2)(B) at sentencing. PH Tr. 10.

         Richmond testified that no one had threatened him to get him to plead guilty. PH Tr. 13. He specified that he was freely and voluntarily pleading guilty because he was guilty. PH Tr. 13. Counsel specified that he believed that Richmond was competent to plead guilty. PH Tr. 14. Richmond advised the Court once again that he was pleading guilty because he was, in fact, guilty. PH Tr. 17. Upon completion of the plea colloquy, Richmond entered a plea of guilty. PH Tr. 17. The Court accepted the plea of guilty, found that it was entered knowingly and voluntarily, and adjudged Richmond guilty of the offense. PH Tr. 17-18.

         In the Presentence Investigation Report, in accordance with the plea agreement, the probation officer found that Richmond's base offense level was 24. PSR ¶ 13. The probation officer found that there should be a two-level increase pursuant to U.S.S.G. § 2G1.3(b)(2)(B). PSR ¶ 14. In support of the finding, the probation officer observed there is a rebuttable presumption that the provision applies since Richmond was more than ten years older than the minor. PSR ¶ 14. It was further noted that the “victim was also influenced to obey [Richmond] through physical abuse and threatened physical abuse.” PSR ¶ 14. The probation officer further found that there should be a two-level increase pursuant to U.S.S.G. § 2G1.3(b)(4) because the offense involved the commission of a sexual act or sexual contact. PSR ¶ 15. The probation officer further found that there should be a two-level increase pursuant to U.S.S.G. § 3A1.1(b)(1) because Richmond knew that the victim of offense was a vulnerable victim. PSR ¶ 16. In support of the finding, the probation officer noted that Richmond knew or should have known that she was a runaway with no money or resources and was especially vulnerable due to her traumatic past including numerous sexual assaults. PSR ¶ 16. Richmond received a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. PSR ¶¶ 20-21. Richmond's total offense level was thus 27. PSR ¶ 23.

         The probation officer determined that Richmond had a criminal history category of II. PSR ¶ 28. With a total offense level of 27 and a criminal history category of II, the guideline range was determined to be 78 to 97 months of imprisonment. PSR ¶ 47.

         A sentencing hearing was conducted on September 29, 2015. Richmond testified that he was satisfied with the accuracy of the PSR. SH Tr. 3. Counsel stated that Richmond understood it and did not have any comments, additions or corrections. SH Tr. 3. The victim, her mother and Richmond testified. The victim testified that it made her “sick to think he would try to say this was consensual.” SH Tr. 5. She further testified that he told her that if she told “anyone about this he will find me and will kill me, my family and anyone else around.” SH Tr. 6. She stated that she does not “know how to cope with something that [she] was forced to do and made [her] to feel so violated.” SH Tr. 7. Her mother testified that she has held her daughter's “trembling body at night while she screams and cries, held her through nightmares.” SH Tr. 8. In response, Richmond expressed remorse for his actions. SH Tr. 10.

         After hearing the testimony, the Court found that the sentencing guidelines did not take into consideration all of the factors that happened in this case and that an upward variance was appropriate because of the seriousness of the offense. SH Tr. 13. The Court specifically noted that Richmond victimized a 17 year old child, that he knew of the prior abuse against her and that he showed violence against her. SH Tr. 14. Richmond was accordingly sentenced to 150 months of imprisonment. SH Tr. 14. He did not appeal the decision of this Court.

         The present motion to vacate, set aside or correct Richmond's sentence (Dkt. #1) was filed almost one year later on September 23, 2016. Richmond argues that his trial attorney was ineffective for failing to object to erroneously applied sentencing enhancements, failing to challenge ...


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