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United States v. McMillan

United States District Court, S.D. Texas, Corpus Christi Division

September 13, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
KEVIN RAY MCMILLAN, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY, SENIOR U.S. DISTRICT JUDGE

         Defendant/Movant Kevin Ray McMillan filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (D.E. 36), to which the United States of America (the “Government”) responded (D.E. 47). Movant was thereafter granted leave to file an amended § 2255 motion (D.E. 48), which the Government moved to dismiss as untimely (D.E. 49).

         I. BACKGROUND

         Movant pled guilty to sexual exploitation of a child in violation of 18 U.S.C. §§ 2251(a) and 2251(e). His plea was pursuant to a written plea agreement in which he and the Government agreed to a recommended 240-month sentence, and he waived his right to appeal or collaterally attack his conviction or sentence except to raise a claim of ineffective assistance of counsel.

         At rearraignment, the Government described the evidence that would support a conviction:

• The 14-year-old victim, Jane Doe, identified Movant to Corpus Christi Police Department (CCPD) officers and admitted to texting and sending him nude photos of herself at his request. She stated that she engaged in sexual acts with Movant at his recording studio, including digital and oral penetration.
• Text messages between Movant and Jane Doe revealed that he asked her to take and send him a picture of her nude body. Investigators discovered a photograph on Jane Doe's iPhone entitled keepsakeimage.jpeg depicting a mouth performing oral sex on a female. Jane Doe was questioned about the image and admitted taking it at Movant's request using her own cellphone.
• In an interview with the CCPD, Movant stated that Jane Doe sent him nude photos of herself at his request. He identified the image of the male performing oral sex on a female as being Jane Doe and himself, but he denied asking her to take the photo.

10/16/2017 Rearraign. Tr., D.E. 41, pp. 13-17. When asked whether the facts recited by the Government were correct, Movant replied, “Yes, sir.” Id. at 17.

         The Presentence Investigation Report (PSR, D.E. 25) calculated Movant's base offense level at 32. Two levels were added under U.S.S.G. § 2G2.1(b)(1)(B) because the victim was 14 years old; two levels were added under U.S.S.G. § 2G2.1(b)(2)(A) because the offense involved the commission of a sexual act; two levels were added under U.S.S.G. § 2G2.1(b)(5) because the minor victim was in Movant's custody, care, or supervisory control; and two levels were added under U.S.S.G. § 2G2.1(b)(6)(B) because the offense involved the use of a computer or an interactive computer service to (i) persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in sexually explicit conduct; and (ii) solicit participation by a minor in such conduct. After credit for acceptance of responsibility, Movant's total offense level was 37. With a Criminal History Category of I, his advisory Guideline range was 210-262 months. At sentencing, the Court adopted the PSR without change and sentenced Movant to 240 months' imprisonment as agreed upon by the parties, to be followed by 10 years' supervised release. Movant was also ordered to pay restitution in the amount of $18, 066.00.

         Judgment was entered February 27, 2018. Movant did not appeal. He filed his original § 2255 motion on February 26, 2019, and an amended § 2255 motion on July 10, 2019.

         II. MOVANT'S ALLEGATIONS

         Movant's original § 2255 motion alleges that counsel was ineffective for failing to request an evidentiary hearing regarding whether Movant had knowledge that Jane Doe had taken photographs or video of them performing sexual acts. Movant's amended § 2255 motion alleges that counsel was ineffective for failing to challenge the two-level enhancement under U.S.S.G. § 2G2.1(b)(5) because the minor victim was in Movant's custody, care, or supervisory control.

         III. 28 ...


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