United States District Court, E.D. Wisconsin
ORDER DENYING PETITIONER’S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE, DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING CASE
C.N. CLEVERT, JR. U.S. DISTRICT JUDGE
Amani Booker has filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 challenging his 2011 judgment of conviction. For the reasons set forth below, the motion will be denied.
A July 13, 2010, indictment charged Booker with one count of conspiracy to sex traffic a child in violation of 18 U.S.C. § 371, one count of sex trafficking a child in violation of 18 U.S.C. § 1591, and one count of production of child pornography in violation of 18 U.S.C. § 2251(a), which carried a mandatory penalty of 15 years. (Case No. 10-CR-133, Doc. 15.) After receiving Booker’s guilty plea to count two (sex trafficking a child), this court sentenced Booker to 168 months and the government dismissed the other two counts with leave of the court. (Case No. 10-CR-133, Docs. 35, 38, 64 and 66.) The Seventh Circuit Court of Appeals affirmed Booker’s conviction on November 16, 2011. United States v. Booker, 447 Fed.Appx. 726 (7th Cir. 2011). Booker’s initial 2255 motion followed on October 5, 2012. (Doc. 1.)
Because many of Booker’s assertions are contradicted by the record, the court will first address the procedural history of the underlying criminal action. Attorney Thomas G. Wilmouth entered his notice of appearance on behalf of Booker on June 18, 2010. (Case No. 10-CR-133, Doc. 4.) A plea agreement was docketed on September 14, 2010, in which Booker said he would plead guilty to count two (sex trafficking of a child) and acknowledged the charge carried a minimum term of imprisonment of ten years. (Case No. 10-CR-133, Doc. 35.) Notably, at paragraph 16 of the document, the parties agreed that the applicable base offense level charged in count two was 30 under U.S.S.G. § 2G1.3(a)(2). Further, the parties understood and agreed that the government would recommend a two-level increase for the use of a computer under § 2G1.3(b)(3) of the Sentencing Guidelines and that a two-level increase for the “commission of a sex act” under § 2G1.3(b)(4) was applicable. Booker agreed that he did not object to those enhancements. (Id., ¶ 17.) Finally, at paragraph 38 Booker acknowledged, understood, and agreed that he would plead guilty because he was in fact guilty and added that no other promises, representations or other inducements had been made, nor agreements reached other than those set forth in the plea document, to induce him to plead guilty.
Attorney Tom Wilmouth represented Booker during the plea hearing, but Attorney Mullins entered a notice of appearance later that day. (Case No. 10-CR-133, Doc. 42.) On December 27, 2010, Attorney Mullins filed a motion for an extension of time to file objections to the presentence report to allow him to opportunity to consult with Booker in prison. (Case No. 10-CR-133, Doc. 45.) Attorney Mullins also filed psychiatric and expert reports. (Case No. 10-CR-133, Docs. 50 and 51.) Later, this court sustained Attorney Mullins’s objection to a two-level increase under U.S.S.G. § 3B1.1, but denied his request for a sentence of 120 months. Attorney Mullins argued that the child-victim had been prostituting herself before meeting Booker and that the victim looked older that she was, citing a pediatrician’s report that a layperson could not tell whether the child was under 18 years of age.
The court rejected Booker’s request for a 120-month sentence with the following comments:
I have weighed the facts and circumstances of this case and have noted that the child who was enticed to engage in prostitution here was 14 years old. While the doctor who submitted his report suggests that it might be difficult to tell from looking at her whether she was 14 or older, what you and Miss Arnold said and did suggests strongly that you didn’t think she was 18. In fact, in my view you knew she was not 18. You quizzed this child about her age. Miss Arnold did also.
Miss Arnold noted how inappropriately she was dressed when you and Miss Arnold approached this child on the street at about 1:30 in the morning as she was clearly soliciting business on the street corner. You and Miss Arnold schooled this child and made it clear to her that what she was selling for $50 could be sold for a lot more. You humiliated this young woman and exposed her to the world by taking photographs of her and posting them on the Internet so the world can see. Her privacy was at that point shot, eliminated, perhaps for all time.
Mr. Wall has requested that the court impose a 168-month sentence. And when I take into account all of the facts that have been set out in this record, I concur. Such a sentence is no greater than is necessary under the circumstances. It’s reasonable, yet exacts the right amount of punishment with due regard for your incarceration prior to this case, in this particular case, as well as other sentences that have been imposed.
(Doc. 8-2 at 27-28.)
The Seventh Circuit Court of Appeals decision indicates that Booker was represented by Brian Mullins on appeal. Booker, 447 Fed.Appx. 726. Indeed, the briefs were prepared and signed by Attorney Mullins who argued that the district court made procedural errors by not adequately considering his two arguments for a below-guidelines sentence and by referring to a matter that was not in the record. (Appeal No. 11-1241, Docs. 7, 8, 15, and 17.) Because Attorney Mullins was not available for oral argument, Attorney Brian Fahl entered a notice of appearance form. (Appeal No. 11-1241, Doc. 16, 18.) Following the November 8, 2011, oral argument, the Seventh Circuit issued its decision on November 16, 2011, affirming the conviction. (Appeal No. 11-1241, Doc. 34.) The mandate issued on December 8, 2011. (Appeal No. 11-1241, Doc. 36.)
In affirming, the Seventh Circuit noted that the district court recognized that the victim was already a sex worker but determined that a below-guidelines sentence was not warranted because Booker taught her how to prostitute herself more profitably and posted nude photos on the internet. In addition, the district court had explained that Booker questioned the victim about her age repeatedly thereby indicating that he did not believe her claim that she was eighteen. With respect to the district court’s statement about the victim’s attire, the Seventh Circuit determined that the district court’s finding that Booker knew the victim was not 18 had ample support in the record. Booker avoided demanding valid identification, knew that the victim could not carry on an adult conversation, and the police knew she was a minor. Booker, 447 Fed.Appx. 726.
In the pending motion, Booker asserts two grounds for relief. First, he claims that counsel was ineffective on various grounds. Allegedly, counsel failed to argue against a U.S.S.G. § 2G1.3(b)(3)(enhancement for use of a computer). Additionally, Booker took issue with his representation by multiple attorneys-one or more of whom failed to fully investigate the case before advising him to plead and refused his calls. Second, Booker asserted that the district court erred by increasing his Guidelines range for use of a computer in the crime. This second claim was dismissed upon the initial screening of the petition because Booker failed to raise the issue on direct appeal; however, the court ordered the parties to brief the second claim and noted that Booker could challenge counsel’s failure to object to the enhancement. (Doc. 2.)
Booker’s brief in support of the motion framed the issues as follows: (1) counsel violated his due process and Sixth Amendment rights when he failed to investigate, object to, or otherwise challenge the court’s application of U.S.S.G. § 2G1.3(b)(3); and (2) counsel provided ineffective assistance during the plea negotiations by giving him incorrect advice regarding the charge and sentencing range as well as by ...