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United States v. Cuff

United States District Court, W.D. Louisiana, Shreveport Division

March 14, 2018

UNITED STATES OF AMERICA
v.
ROBERT CUFF

          MAGISTRATE JUDGE HORNSBY

          MEMORANDUM RULING

          S. MAURICE HICKS, JR., CHIEF JUDGE

         Before the Court is Petitioner Robert Cuff's (“Cuff”) Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. See Record Document 737. Cuff seeks to have his sentence corrected on seven grounds which will each be analyzed by the Court. For the reasons discussed herein, Cuff's Motion is DENIED.

         FACTUAL AND PROCEDURAL BACKGROUND

         Cuff, also known as “dd0040” and “slapalot, ” joined “Dreamboard, ” an online bulletin board for the exchange of sexual videos and images on March 22, 2009. See Record Document 387-2 at 4. During his time as a member of “Dreamboard, ” he posted a total of forty-three images or files. See id. Most of these images were of young children posing in sexual positions or engaging in sexual acts with adults. See id. As a result of these postings, he was elevated to VIP status on the site. See id.

         While conducting a search of Cuff's house pursuant to a search warrant, law enforcement seized a computer containing multiple sexual video files. The seized files included videos of Cuff sexually abusing a five-year old girl. The five-year old girl was the daughter of a woman, with whom Cuff had been involved.

         On August 10, 2011, Cuff was charged by a federal grand jury in a second superseding indictment with one count of engaging in a child exploitation enterprise in violation of 18 U.S.C. § 2252A(g). See Record Document 245. Additionally, Cuff was charged with one count of conspiracy to advertise the distribution of child pornography in violation of 18 U.S.C. §§ 2251(d)(1) and (e). See id. Furthermore, Cuff was charged with one count of conspiracy to distribute child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1). See id. Subsequent to the indictment, the Court permitted mental health professionals to conduct a mental evaluation of him at the place of incarceration. See Record Documents 340, 359, and 360. On August 30, 2011, the Court granted a motion permitting Stephen P. Karns (“Karns”) to appear pro hac vice. See Record Document 296. Based on the record, Karns was the lead counsel in Cuff's case.

         On December 1, 2011, Cuff pleaded guilty to count one, engaging in a child exploitation enterprise of the second superseding indictment. See Record Document 387. Again, the Court issued Orders permitting mental health professionals to interview and evaluate Cuff. See Record Documents 398, 405, and 408.

         On January 23, 2012, the Presentence Report was issued. See Record Document 544. Due to an enhancement pursuant to U.S.S.G. § 4B1.5(b)(1), the recommended total offense level was 48 because Cuff “engaged in a pattern of activity involving prohibited sexual conduct.” See id. His Criminal History Category was determined by the Probation Office to be a One (I). See id. Consequently, the combination of these scores led to a determination that Cuff's guideline imprisonment range was life imprisonment. See id.

         On February 3, 2012, Karns filed a Motion to Continue Dates for Objections to the Presentence Report and Sentencing. See Record Document 436. In his Motion, Karns asserted that additional time was needed in order for his experts to complete their evaluations as well as to allow time for his counsel to prepare a motion for downward departure or variance. See id. On February 6, 2012, the Court issued an Order granting Karns' Motion and re-scheduled the sentencing for May 16, 2012. See Record Document 438. Karns' objections to the Presentence Report were due on April 18, 2012. See id. On April 10, 2012, Karns filed a second Motion to Continue Dates for Objections to the Presentence Report and Sentencing. See Record Document 461. Again, Karns cites the need for additional time in order for his experts to complete their evaluations as well as to allow time for him to prepare a motion for downward departure or variance. See id. On April 11, 2012, the Court issued an Order granting Karns' Motion and re-scheduled the sentencing for July 13, 2012. See Record Document 464. The objections to the Presentence Report were also due on June 13, 2012. See id.

         On June 29, 2012, Karns filed a forty-page Pre-sentencing Memorandum, which incorporated a motion for downward departure. See Record Document 513. In his Pre-sentencing Memorandum, Karns advocated for the Court to impose a sentence that was less than the determined life imprisonment recommended in the Presentence Report. Karns attached thirty exhibits to the Memorandum, including photographs and letters attesting to Cuff's admirable work record while he was employed by the United States Navy. See Record Documents 513-516.

         On July 5, 2012, roughly one week before the July 13, 2012 sentencing date, Eric H. Schweitzer (“Schweitzer”) filed a Motion to Appear Pro Hac Vice. See Record Document 517. The Court granted the Motion on July 6, 2012. See Record Document 518. On July 9, 2012, four days before sentencing, Schweitzer filed a Motion to Substitute himself in place of Karns. See Record Document 521. In the Motion, Schweitzer argued that he learned of a brain injury sustained by Cuff and that this may constitute a defense to the charges levied against Cuff. See id. Schweitzer also asserted that Karns was incapable of counseling Cuff in that regard. See id. The Motion further requested the Court “allow him sufficient time to prepare for sentencing and any other matters which [sic] this writer may deem advisable.” See id. The Court denied this Motion on July 10, 2012. See Record Document 525. In denying the Motion, the Court reasoned that Schweitzer was already enrolled as co-counsel with Karns. See Record Documents 518 and 525. Therefore, because of his appointment as co-counsel, Schweitzer was permitted to attend the sentencing hearings, but Karns was required to participate. Furthermore, as it concerned a continuance, the Court reasoned that Cuff had already been granted a total of 220 days to prepare for sentencing and that this was his third request for a continuance. See Record Document 525. Thus, the Court denied Schweitzer's request for a third continuance.

         Included in Schweitzer's Motion to Substitute, Schweitzer alerted the Court of his intent to file a Motion to Withdraw Cuff's Guilty Plea. See Record Document 521. On July 12, 2012, the day before the sentencing hearing, Schweitzer filed the Motion to Withdraw Cuff's Guilty Plea. See Record Document 529. The government filed its opposition the day of the sentencing hearing. See Record Document 530. At the sentencing hearing, the Court denied the Motion to Withdraw Cuff's Guilty Plea and also denied the request for a downward departure. The Court sentenced Cuff to life in prison, which was the sentence recommended under the advisory guidelines in the Presentence Report. See Record Document 540. Furthermore, the Court determined that the aforementioned sentence would be followed by a lifetime of supervised release should Cuff ever be released from prison. See id.

         On July 12, 2012, Schweitzer filed a Notice of Appeal pursuant to 18 U.S.C. § 3742 on behalf of Cuff. See Record Document 537. On August 7, 2013, the United States Court of Appeals for the Fifth Circuit affirmed Cuff's conviction and sentence. See Record Document 679. The United States Supreme Court denied Cuff's Petition for Writ of Certiorari. See Record Document 692. At this time, Cuff moves to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. See Record Document 737. Cuff alleges seven grounds as to why the present Section 2255 Motion should be granted:

(1) Breach of the plea agreement and vacate the guilty plea for violation of the non-prosecution clause;[1]
(2) Ineffective assistance of counsel for failure to move for competency review under 18 U.S.C. § 4241;
(3) Ineffective assistance of counsel for failure to investigate insanity or involuntary intoxication defenses;
(4) Ineffective assistance of counsel for failure to investigate;
(5) The conviction for engaging in a child exploitation enterprise under 18 U.S.C. § 2252(A)(g) is constitutionally defective for lacking a mens rea element that would require the prosecution to prove that Cuff knowingly acted in concert with three or more persons, and alternatively, ineffective assistance of counsel for failure to raise the mens rea element in Cuff's defense;
(6) Ineffective assistance of counsel for failure to object to a five (5) level enhancement under ...

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