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United States v. Dessoye

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

February 28, 2019





         Before the Court is a 28 U.S.C. § 2255 motion to vacate sentence filed by Defendant Thomas Dessoye ("Dessoye"). [Record Document 98]. For the reasons given below, Dessoye's § 2255 motion is DENIED.


         Dessoye was initially indicted on four counts: one count of possession of child pornography, two counts of receipt of child pornography, and one count of use of a facility of interstate commerce to attempt to entice a minor to engage in criminal sexual activity. [Record Document 10]. A superseding indictment added a count of distribution of child pornography. [Record Document 49 at 2-3]. The Government subsequently dismissed the enticement charge. [Record Documents 70 and 71]. Dessoye then pleaded guilty to the distribution count; the undersigned accepted this plea on the Magistrate's recommendation. [Record Documents 74 and 80]. In return for Dessoye's guilty plea, the Government agreed to dismiss the remaining counts at sentencing. [Record Document 77 at 1].

         In connection with his guilty plea, Dessoye and the Government stipulated that he had communicated with a sixteen-year-old boy (subsequently identified as D.S.) who lived in Minnesota. [Record Document 77-2 at 3]. In late October 2012, Dessoye sent D.S. a link to a Dropbox account to which Dessoye had uploaded child pornography. [Id. at 4]. After he sent the Dropbox link, he followed up to ensure that D.S. viewed the Dropbox contents. [Record Document 90 at 5]. D.S. eventually opened the Dropbox and viewed the child pornography. [Record Document 77-2 at 4].

         On April 21, 2013, D.S.'s parents reported to Minnesota law enforcement that he had run away. [Record Document 90 at 4]. A ping of D.S.'s cell phone placed it in Dessoye's residence in Lafayette, Louisiana. [Id.]. It was later determined that Dessoye and D.S. had been in regular communication for some months, that Dessoye had sent D.S. money, and that Dessoye had traveled to Minnesota from Louisiana in order to help D.S. run away. [Id. at 4-5]. During their communications, Dessoye discussed the possibility of himself and D.S. having sexual activity with other juveniles and encouraged D.S. to begin a sexual relationship with a thirteen-year-old boy. [Id. at 5].

         After learning from Minnesota police that D.S. was likely in Dessoye's home, the Lafayette Parish Sheriffs Office entered the home, where they encountered D.S. as well as evidence of marijuana use. [Id. at 4]. D.S. was arrested for possession of marijuana and held until his parents could pick him up. [Id.]. Meanwhile, Minnesota police asked D.S.'s father if he would consent to a search of the family's computers for evidence related to D.S.'s running away. [Id. at 4-5]. His father consented, but noted that several family computers were currently being repaired. [Id. at 5]. Separately, the repair center had contacted law enforcement after discovering child pornography on the computers. [Id.]. When confronted by police, D.S.'s parents denied prior knowledge of the child pornography. [Id.]. Subsequent investigation of the parents' computers discovered 119 images of child pornography. [Id.].

         Based on the discovery of D.S. in Dessoye's home, a search warrant was issued for the residence. [Record Document 105 at 5-6]. In the search, law enforcement seized Dessoye's computer, multiple thumb drives, and two non-working cell phones. [Record Document 90 at 5]. A review of the thumb drives yielded over 900 images and 382 videos of prepubescent child pornography. [Id.].

         The Presentence Report ("PSR") calculated an advisory guideline range of 235 to 293 months incarceration. [Id. at 12]. Because Dessoye pleaded guilty to distribution of child pornography, his statutory maximum term of incarceration was 20 years. 18 U.S.C. § 2252A(b)(1). As a result, the adjusted advisory range was 235 to 240 months incarceration. [Record Document 90 at 12]. On July 10, 2015, this Court sentenced Dessoye to 240 months incarceration and $5, 095.00 in restitution. [Record Documents 84 and 85].

         On appeal, Dessoye argued that it should not be presumed that the advisory guidelines range established by U.S.S.G. § 2G2.2 is reasonable because the guidelines for child pornography are not based on empirical data and lead to sentencing disparities. See United States v. Dessoye, 648 Fed.Appx. 433, 434 (5th Or. 2016). He also argued that his sentence was "substantively unreasonable in light of his age, lack of recent or significant criminal history, and the circumstances of the offense." Id. The Fifth Circuit rejected these arguments and affirmed his sentence. Id. The instant motion followed. [Record Document 98].

         28 U.S.C. § 2255

          A federal prisoner may challenge the legality of his detention by "mov[ing] the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a); see United States v. Grammas, 376 F.3d 433, 436 (5th Or. 2004) (quoting Kuhn v. United States, 432 F.2d 82, 83 (5th Cir. 1970)). Where there has been a "denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). Relief under § 2255 is "reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." Kinder v. Purdj, 222 F.3d 209, 213 (5th Cir. 2000) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992)).

         A district court may deny a § 2255 motion without conducting any type of evidentiary hearing if the defendant fails to "present[] 'independent indicia of the likely merits of [his] allegations.'" United States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013) (quoting United States v. Cavitt, 550 F.3d 430, 442 (5th Cir. 2008)). A hearing is also unnecessary if the issues were raised on direct appeal or do not describe constitutional violations. United States v. McCollom, 664 F.2d 56, 59 (5th Cir. 1981) (citing Buckelew v. United States, 575 F.2d 515 (5th Cir. 1978)).

         "A section 2255 movant who fails to raise a constitutional or jurisdictional issue on direct appeal waives the issue for a collateral attack on his conviction, unless there is cause for the default and prejudice as a result." United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000) (citing United States v. Patten, 40 F.3d 774, 776-77 (5th Cir. 1994) (per curiam); United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992); United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A 1981)). Ineffective assistance of appellate counsel can constitute cause, but the Strikland test must still be met-that is, appellate counsel must have been objectively unreasonable in failing to raise this issue, and Dessoye must have been prejudiced by that failure. See Higgins v. Cain, 720 F.3d 255, 260-61 (5th Cir. 2013) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). Failure to raise a legally meridess claim is neither objectively unreasonable nor prejudicial. Smith v. Pickett, 907 F.2d 581, 585 n.6 (5th Cir. 1990).



         With certain exceptions not relevant here, a § 2255 motion must be made within one year of the date on which the movant's conviction became final. 28 U.S.C. § 2255(f). Following an unsuccessful appeal after which the defendant does not seek a writ of certiorari, a conviction becomes final when the time expires for seeking the writ. Clay v. United States, 537 U.S. 522, 525 (2003). A petition for a writ of certiorari must be filed within ninety days of the entry of judgment. Id. (citing Supreme Court Rule 13(1)). The Fifth Circuit denied Dessoye's appeal on May 16, 2016. Dessoye, 648 Fed.Appx. at 433. Because he placed his § 2255 motion in the prison legal mail on May 1, 2017, [Record Document 98 at 5], his motion is timely.


         Dessoye's first claim is that this Court lacked "jurisdiction" over him. [Id. at 2]. Because Dessoye failed to bring this claim on direct appeal, it is procedurally barred absent cause and resulting prejudice. United States v. Lopez 248 F.3d 427, 433 (5th Cir. 2001) (citing United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998)). Thus, it must have been objectively unreasonable for appellate counsel to attack only the reasonableness of Dessoye's sentence, and Dessoye must have suffered prejudice from that decision.

         It is not entirely clear what Dessoye means by his use of the term jurisdiction. He initially describes jurisdiction by reference to "geographical location." [Record Document 98 at 2]. Dessoye's crime was sending child pornography to a child located in Minnesota. Dessoye, 648 Fed.Appx. at 433. To the extent that Dessoye is arguing that the Western District of Louisiana was the incorrect venue, this argument is meritiess. In the factual basis of his guilty plea, Dessoye stipulated that venue was proper in the Western District. [Record Document 77-2 at 4]. Even if he had not done so, "the government must prosecute an offense in a district where the offense was committed." Fed. R. Crim. P. 18. Given that Dessoye was located in the Western District when he sent D.S. the Dropbox link, [Record Document 77-2 at 3], venue was proper.

         In his reply memorandum, Dessoye attempts to clarify his focus on "geographical location" by arguing, without authority, that his prosecution was illegal because his conduct did not occur on federal land. [Record Document 105 at 2]. However, federal district courts have original jurisdiction "of all offenses against the laws of the United States." 18 U.S.C. § 3231. Dessoye was convicted of violating a federal ...

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