United States District Court, W.D. Louisiana, Shreveport Division
MAGISTRATE JUDGE HORNSBY
MAURICE HICKS, JR., CHIEF JUDGE
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.
AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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.
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.
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
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
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
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;
(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
(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 ...