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Cruz v. United States

United States District Court, N.D. Illinois, Eastern Division

July 19, 2017

BOBBY CRUZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          ROBERT M. DOW, JR. UNITED STATES DISTRICT JUDGE

         Before the Court are Petitioner Bobby Cruz's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [1] and his motion for leave to amend his petition [18]. For the reasons set forth below, the Court denies Petitioner's 28 U.S.C. § 2255 motion [1] and his motion to amend [18]. The Court declines to certify any issue for appeal pursuant to 28 U.S.C. § 2253(c)(2), and directs the Clerk to enter judgment in favor of Respondent.

         I. Background

         In 2011, Petitioner Bobby Cruz was indicted for multiple offenses against children. See United States v. Cruz, Case No. 11-CR-773, Dkt. 6 (N.D. Ill.). He was charged with four counts of production of child pornography in violation of 18 U.S.C. § 2251(a), involving at least three different victims (Counts 1-4). Id. at 1-4. He was charged with “cross[ing] a State line with intent to engage in a sexual act with another person who had not attained the age of 12 years” in violation of 18 U.S.C. § 2241(c), which also involved one of his child pornography production victims (Victim C) (Count 5). Id. at 5. In addition, he was charged with transportation of at least one hundred images of child pornography and a child pornography video in violation of 18 U.S.C. § 2252A(a)(1) (Counts 6-7), and possession of child pornography on a series of computers, external hard drives, and thumb drives in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 8). Id. at 6-8. The indictment alleged that most of this charged conduct occurred in either Des Plaines or Morris, Illinois, while the Aggravated Sexual Abuse Count was alleged to have occurred “in the Northern District of Illinois, Eastern Division, and elsewhere.” Id. at 5.

         After Petitioner was charged in the Northern District of Illinois, separate charges were filed against him in the Central District of Illinois. See United States v. Cruz, Case No. 11-CR-773, Dkt. 28, ¶ 2(b) (N.D. Ill.) (“Plea Agreement”). Those charges were for two separate counts of production of child pornography, one of which again involved Victim C. Id. ¶¶ 6(b)-(c). On September 19, 2013, Petitioner requested to transfer jurisdiction over that case to the Northern District of Illinois pursuant to Federal Rule of Criminal Procedure 20. United States v. Cruz, Case No. 11-CR-773, Dkt. 26 (N.D. Ill.).

         On September 30, 2013, Petitioner entered into a plea agreement in which he pled guilty to Count 5 of the indictment filed in the Northern District of Illinois (the “Aggravated Sexual Abuse Count”) and the two child pornography production counts from the indictment filed in the Central District of Illinois. See Plea Agreement ¶ 5. Defendant agreed that he had “read the charges against him, ” “those charges ha[d] been fully explained to him by his attorney, ” and he “fully [understood] the nature and elements of the crimes with which he ha[d] been charged.” Id. ¶¶ 3-4. He also provided a detailed factual basis supporting his plea to the Aggravated Sexual Abuse Count, admitting that these “facts establish his guilt beyond a reasonable doubt.” Id. ¶ 6.

         Specifically, Petitioner admitted that “on or about October 22, 2010, in the Northern District of Illinois, Eastern Division, and elsewhere, [Petitioner] crossed a State line with intent to engage in a sexual act” with Victim C. Id. ¶ 6(a). He acknowledged that he “traveled from Des Plaines, Illinois to St. Louis, Missouri, with Victim C and Victim C's family, ” and Petitioner had molested and taken nude photographs of Victim C on several different occasions” prior to this trip. Id. Petitioner expressly admitted that “[a]t the time of the travel, [he] intended to engage in a sexual act with Victim C, who was 11 years old, once arriving in Missouri.” Id. The plea then recounts how Petitioner abused Victim C in a hotel room after they arrived in Missouri.

         In connection with Count 1 of the indictment from the Central District of Illinois, Petitioner admitted that he “created at least 167 photographs and 1 video of Victim C engaging in sexually explicit conduct” while Victim C was between 7 and 10 years old. Id. ¶ 6(b). Petitioner admitted that these photographs document his direct sexual abuse of Victim C. Id. The plea then provides additional graphic details about these photos and how Petitioner directed Victim C to expose himself so he could be photographed. Id. The agreement provides a similarly detailed factual basis for the second count from the Central District of Illinois indictment and other conduct that the parties agreed would be counted as relevant conduct for sentencing purposes. Of note, Petitioner “admit[ed] the following facts and that those facts constitute relevant conduct” related to his production of child pornography involving Victims D, E, F, G, and H, whose ages ranged from 2 to 11 years old. Id. ¶ 8.

         By pleading guilty to the Aggravated Sexual Abuse Count, Petitioner faced a mandatory minimum sentence of 30 years and a maximum sentence of life imprisonment. Id. ¶ 10(a). For purposes of his advisory Sentencing Guidelines calculations, the parties agreed that Petitioner's base offense level for the Aggravated Sexual Abuse Count was 38 and he would receive a two-level enhancement pursuant to Guideline § 2A3.1(b)(3) because Victim C was in his supervisory control. Id. ¶ 12(b)(i)-(ii). Likewise, Petitioner's offense level for the two counts from Central District indictment was 40 based on the agreed applicability of various enhancements. Id. ¶ 12(b)(iii)-(vii). For the other relevant conduct related to the production of child pornography involving Victims D through H, his total offense level was 38. Id. ¶ 12(b)(viii)-(x).

         Pursuant to Guidelines §§ 3D1.2(d), 3D1.4, and 2G2.1, the parties agreed that Petitioner was required to receive a five-level enhancement from the highest offense level applicable to this group of offenses. Plea Agreement ¶ 12(xii). As a result, his offense level of 40 was increased to 45. Petitioner then received a three-point reduction for acceptance of responsibility (id. ¶¶ 12(b)(xiii)-(xiv)), but a five-level increase pursuant to Guidelines § 4B1.5(b) because Petitioner's “instant offenses of conviction [were] covered sex crimes” and Petitioner “engaged in a pattern of activity involving prohibited sexual conduct” (id. ¶ 12(c)). Since these calculations ultimately resulted in total offense level of 47, Plaintiff was treated as having an offense level of 43-the maximum. See U.S.S.G. § 5, Part A, App. N.2. And even though Petitioner was placed in criminal history category I, his advisory Sentencing Guidelines range was still life. See U.S.S.G. § 5, Part A; Plea Agreement ¶ 12(e). However, Government agreed to recommend a sentence of not more than 50 years' imprisonment. Plea Agreement ¶ 13.

         In securing that concession from the Government, Petitioner agreed to give up various rights. Id. ¶ 24. He acknowledged that he understood that “[i]f the trial is a jury trial, the jury would be instructed that [he] is presumed innocent, that the government has the burden of proving [him] guilty beyond a reasonable doubt, and that the jury could not convict him unless, after hearing all the evidence, it was persuaded of his guilt beyond a reasonable doubt, ” and he was giving up that right. Id. ¶ 24(a)(iii). He stated that he “understands he is waiving all appellate issues that might have been available” and “knowingly waives the right to appeal his conviction, any pre-trial rulings by the Court, and any part of the sentence (or the manner in which that sentence was determined), including any term and fine within the maximums provided by law * * * in exchange for the concessions made by the United States in this Agreement.” Id. ¶ 24(b). He also “waive[d] his right to challenge his conviction and sentence, and the manner in which the sentence was determined * * * in any collateral attack or future challenge, including but not limited to a motion brought under Title 28, United States Code, Section 2255.” Id. This waiver “d[id] not apply to a claim of involuntariness, or ineffective assistance of counsel, which relates directly to this waiver or its negotiation.” Id. Petitioner further acknowledged that if he violated any term of this agreement, the Government could move to prosecute Petitioner or resentence him regardless of the concessions agreed to in the plea. Id. ¶ 34. In signing the plea, Petitioner represented that he “understands and voluntarily accepts and each and every term and condition of this Agreement.” Id. ¶ 36.

         After the plea agreement was negotiated and filed on the docket, Petitioner's attorney filed a detailed sentencing memorandum in which he advocated that Petitioner should receive the mandatory minimum, 30 years. See United States v. Cruz, Case No. 11-CR-773, Dkt. 38 (N.D. Ill.) (“Sentencing Memorandum”).[1] In furtherance of that goal, the memorandum includes various statements attempting to acknowledge the seriousness of Petitioner's offense while arguing for mitigation. For example, the memo states,

To start with, Mr. Cruz admits that his crimes are beyond serious. No effort is made to say otherwise. Children are the most vulnerable members of society, and the sexual abuse of children can and often does leave psychological scars that last a lifetime, or are even transferred to the next generation. None of the victims in this case deserved what Mr. Cruz did. One point needs to be made, but very delicately, and bookended by the admission that Mr. Cruz's conduct was wrong, harmful, and inexcusable. By making the following point, Mr. Cruz is not saying that children were not harmed. But they could have been harmed in worse ways.

Id. at 7. In discussing the effect of civil commitment laws on the incapacitation purpose of sentencing embodied in 18 U.S.C. § 3553, Petitioner's counsel noted that technologies might be developed in the future that would minimize Petitioner's pedophilic impulses and “[w]hile the defense cannot say with any assurance that these technologies will exist, the government is equally unable to say they will not. The year 2037 is a long time from now.” Id. at 19 n.20.

         Other parts of memorandum try to walk this difficult line as well. The conclusion states,

Finally, despite all this horror, it is fitting to show some compassion for Mr. Cruz. Once again, it is admitted that his crimes are horrible, and that decades of punishment are deserved. At the same time, Mr. Cruz is someone who was tormented as a child, sexually abused as a child, and became a pedophile without making a conscious choice to do so.

Id. at 21. The conclusion also quotes from the 1941 movie, The Wolf Man, after which his attorney states, “Like Lon Chaney's fictional wolfman, Bobby Cruz is both a danger to society and a pathetic unfortunate who deserves our pity. Both those viewpoints are valid.” Id. at 20.

         On April 23, 2014, the Court accepted the parties' recommendation in the plea agreement to impose a sentence below the advisory Guidelines range of life and imposed a sentence of 50 years. The Court explained that “[g]iven the duration of the crimes, the number of victims, and the brazenness with which Defendant committed the crimes on the children of his relatives, friends, and co-workers, his astonishing lack of impulse control requires incapacitation for a lengthy period of time.” United States v. Cruz, Case No. 11-CR-773, Dkt. 45, at 4 (N.D. Ill.).

         Notwithstanding his plea agreement, Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255, challenging both his sentence and the terms of his plea [1]. Petitioner's opening motion raises two main arguments. First, he argues that he received ineffective assistance of counsel when his attorney failed to challenge the “jurisdictional nexus” under 18 U.S.C. § 2241(c) required to try him in the Northern District of Illinois. [1, at 19-22.] Petitioner contends that he lacked intent to engage in sexual conduct with Victim C prior to entering Missouri (although he formed this intent afterwards), and thus should have been tried either in the Eastern District of Missouri or Missouri state court. Second, Petitioner argues that he received ineffective assistance of counsel at sentencing, both because his attorney injected his “personal moral belief” about Petitioner's crimes in the sentencing memorandum and failed to challenge certain sentencing enhancements. [1, 24-33.]

         More than a year after Petitioner filed his opening brief, he filed a motion to amend his § 2255 motion [18] and a second reply brief [19] that advanced a different argument. In this filing, Petitioner argues that he received ineffective assistance of counsel when his attorney erroneously told him that intent would be “presumed” against him under 18 U.S.C. § 2241(c) based on the fact that he “had previously taken pictures of Victim C” in the months before he committed the October 2010 offense. [19, at 21.] Petitioner asserts that he only pled guilty to the Aggravated Sexual Abuse Count because he believed that Respondent did not have to prove intent, and because he “had not crossed a state line with ‘intent' to engage in a sexual act” with Victim C, he would not have pled guilty to this count but for this erroneous advice. Id.

         II. Legal Standard

         The Seventh Circuit has stressed that “relief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Under § 2255, relief “is available only when the ‘sentence was imposed in violation of the Constitution or laws of the United States, ' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). A § 2255 motion is not a substitute for a direct criminal appeal. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (stating that a § 2255 motion is “neither a recapitulation of nor a substitute for a direct appeal”).

         III. Analysis

         Before turning to the substance of Petitioner's arguments, the Court first addresses the scope of the waiver in his plea agreement. “[W]aivers of direct and collateral review in plea agreements are generally enforceable.” Hurlow v. United States, 726 F.3d 958, 964 (7th Cir. 2013). However, the Seventh Circuit has “repeatedly recognized that appellate and collateral review waivers cannot be invoked against claims that counsel was ineffective in the negotiation of the plea agreement.” Id. Respondent contends that the “only claim the defendant may bring in a Section 2255 motion is one pertaining to ‘a claim of voluntariness or ineffective assistance of counsel, which relates directly to this waiver or to its negotiation.'” [5, at 2 (citing Petitioner's Plea Agreement).] ...


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