United States District Court, N.D. Mississippi
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
matter comes before the Court on the motion of Steven
Russell, a federal prisoner, for the Court to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
Russell has also filed a memorandum in support of his motion,
which the Court has accepted and reviewed. The Government has
responded in opposition to the motion. For the reasons set
forth below, the instant motion to vacate, set aside, or
correct Russell's sentence shall be denied.
AND PROCEDURAL POSTURE
23, 2015 Steven Russell was found guilty of five counts of
distributing child pornography in violation of 18 U.S.C
§§ 2252A(a)(2) and 2252A(b)(1) and one count of
possession of child pornography in violation of 18 U.S.C
§§ 2252A(a)(5)(B) and 2252A(b)(2). On December 10,
2015 this Court sentenced him to 210 months incarceration for
Counts 1-5 and 120 months incarceration on Count 6, to be
served concurrently. This Court also imposed a 5 years term
of supervised release with special conditions of supervision
including a restriction on access to the Internet, except for
pre-approved access for work.
appealed his conviction and sentence. The Fifth Circuit Court
of Appeals affirmed Russell's conviction and sentence on
August 18, 2016. He then filed a petition of certiorari with
the United States Supreme Court. The Supreme Court denied the
writ on October 31, 2016.
filed his motion to vacate, set aside, or correct sentence on
August 16, 2017. The government responded to the motion on
August 14, 2018. Russell's claims are difficult to
discern, but the Court has identified them as follows:
1. Ineffective Assistance of Counsel: Defense counsel failed
to provide a sentencing memo arguing against the use of the
sentencing guidelines, as they do not properly reflect 18
U.S.C. § 3553(a) considerations and are not based on
2. Ineffective Assistance of Counsel at the Sentencing Stage:
Defense counsel failed to argue §3553(a) factors, and
object to the sentencing guidelines and the weight given to
those guidelines by the Court when determining the sentence.
Assistance of Counsel
order for Russell to prevail on his ineffective assistance
claim, he must show that his counsel's performance was
deficient and so prejudiced his defense that but for the
deficiency the result of the trial would have been different.
Stickland v. Washington, 466 U.S. 668, 687-89. In
order to show deficiency Russell must show that counsel made
errors so serious that he was not functioning as the
“counsel” guaranteed by the Sixth Amendment, and
“must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Strickland, 466 U.S. at
687 and 689. Finally, in order to prove ineffective
assistance of counsel causing prejudice at the sentencing
stage, Russell must show there was a reasonable probability
that but for the actions of his attorney he would have
received a “significantly less harsh” sentence.
United States v. Grammas, 376 F.3d 433, 439
(5th Cir. 2004).
argues that his Counsel was ineffective by failing to provide
a sentencing memo arguing that the Court should reject the
sentencing guidelines, as they do not reflect §
3553(a)'s considerations or empirical research. He
further argues that had his counsel provided a memorandum
regarding the research or argued §3553(a) factors the
Court would have to consider a lower sentence. The Court
rejects this argument completely. First Russell has failed to
show that his attorney made an actual error and, Russell has
certainly not proved that he suffered any prejudice or that
but for his counsel's actions he would have received a
“significantly less harsh” sentence as required
by Grammas. Having reviewed the sentencing
memorandum completed by Russell's current attorney, this
Court is of the opinion that even with a memorandum, the
sentence imposed would not have been outside of the
sentencing guidelines. In fact, there is a statutory
mandatory minimum sentence for convictions under 18 U.S.C.
§ 2252A from which the Court cannot deviate.
next alleges that at the sentencing hearing his counsel did
not properly argue the §3553(a) factors. The Court does
not accept this argument. At the sentencing hearing, the
Court noted that the guidelines as well as the factors
enumerated in § 3553(a) were taken into consideration
before the sentencing. Further, he argues that his counsel
did not object to the use of the guidelines or the weight
given when determining the sentence. The Sentencing Reform
Act requires the District Court to calculate and consider the
guideline range pursuant to 18 U.S.C §3553(a). The
United States Supreme Court recently held that the guidelines
are to be the starting point for calculating the sentence.
Hughes v. United States, 138 S.Ct. 1765, 1775
(2018)(quoting Peugh v. United States, 569 U.S. 530,
542(2017)). As for the objections, Russell's counsel did
object to the supposed harshness of the sentence, which the
Court noted and overruled.
Court must “issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rule 11 of the Rules Governing Section 2255
Proceedings for the United States District Courts. Russell
must obtain a certificate of appealability
(“COA”) before he may appeal the denial of his
§ 2255 motion. 28 U.S.C. § 2253(c)(1)(B). A COA
will issue “only if the applicant has made a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). For cases rejected
on their merits, a movant “must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong” to warrant a COA. Slack v. McDaniel,
529 U.S. 473, 484 (2000); see also United States v.
Jones, 287 F.3d 325, 329 (5th Cir. 2002) (applying
Slack to COA determination in § 2255
proceeding). To obtain a COA on a claim that has been
rejected on procedural grounds, a movant must demonstrate
“that jurists of reason would find it debatable whether
the petition ...