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Faucett v. United States

United States Court of Appeals, Seventh Circuit

September 22, 2017

Michael D. Faucett, Petitioner-Appellant,
United States of America, Respondent-Appellee.

          Argued September 28, 2016

         Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:13-cv-01434-TWP-TAB - Tanya Walton Pratt, Judge.

          Before Kanne, Sykes, and Hamilton, Circuit Judges.

          Sykes, Circuit Judge.

         Michael Faucett possessed large quantities of child pornography, some of which he produced himself. His collection included 59 sexually explicit photos of his five-year-old granddaughter that he took while she was sleeping. When investigators searched his computer and found the collection, he initially denied knowledge of it. But he confessed when they confronted him with the pornographic pictures of his granddaughter. Faucett pleaded guilty to three federal crimes: two counts of producing child pornography, see 18 U.S.C. § 2251(a), and one count of possessing child pornography, see id. § 2252(a)(4)(B). He is serving a 30-year prison term.

         This appeal concerns Faucett's collateral attack on his sentence. In a pro se motion under 28 U.S.C. § 2255, he claimed that his attorney was constitutionally ineffective for failing to advise him that involuntary intoxication was an available defense. In an alternative but overlapping claim, he alleged that counsel at least should have developed an argument about diminished capacity as a mitigating factor at sentencing. The district judge denied the § 2255 motion without a hearing, reasoning that neither defense strategy would have had any chance of success as a factual matter. The judge also ruled that involuntary intoxication is a defense to specific-intent crimes only and child-pornography offenses are general-intent crimes.

         We have not yet had occasion to address the defense of involuntary intoxication. Limited authority exists in other circuits, but there's no clear consensus on whether the defense is available in a case like this one. We have no need to decide that legal question because Faucett did not articulate a viable factual basis for the defense even if it applies in this context. Nor was his counsel constitutionally ineffective for not arguing diminished capacity as a mitigating factor at sentencing.

         I. Background

         Faucett's five-year-old granddaughter stayed overnight at his house on March 16, 2010. Just before midnight Faucett entered the room where she was sleeping, undressed her from the waist down, and took 30 pornographic pictures of her. He repeated this conduct on April 10, when she next stayed at his house, this time taking 29 pornographic pictures of her. To stage the photos, Faucett posed his sleeping granddaughter in various sexually explicit positions. In some of the images, he is seen attempting intercourse or performing oral sex on his granddaughter.

         Faucett uploaded the 59 photos to his computer, adding them to his stored collection of child pornography-more than 600 images and videos on three computers. Many of the images in his collection depicted minor girls being raped by adult men. Faucett advertised some of this material online.

         Investigators tracked the online images to Faucett's IP address and obtained a search warrant for his home and computers. Initial on-site forensic analysis revealed the pornography collection, including the photos of Faucett's granddaughter. Investigators questioned Faucett during the search, but he initially denied any knowledge of the child pornography. When they confronted him with the photos of his granddaughter, he confessed to his crimes and provided a detailed account of when and how he took the photos.

         A federal grand jury indicted Faucett on two counts of production of child pornography and one count of possession of child pornography. He pleaded guilty as charged. His presentence report detailed his struggle with alcoholism and certain mental-health issues, including ADHD, insomnia, depression, and anxiety. At various times Dr. Donald Wagoner of the Wagoner Medical Center had prescribed several different medications to treat these conditions, including Adderall, Ambien, Paxil, Xanax, and Ability. According to Faucett's medical records, however, only two prescriptions were active between February and April of 2010 when he took the pornographic pictures of his granddaughter: Adderall (for ADHD) and Paxil (an antidepressant). Faucett's attorney submitted a sentencing memorandum addressing his client's alcoholism and mental-health issues, but the overall defense strategy at sentencing was to demonstrate acceptance of responsibility.

         At the sentencing hearing, Faucett apologized for his conduct, expressed remorse, and acknowledged the wrongfulness of his actions. The judge noted his remorse and early guilty plea and awarded a full three-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3El.l(b). Still, with an off-the-charts offense level (45) and a category II criminal history, the guidelines recommended a sentence of life. The judge imposed a 30-year prison term followed by a life term of supervised release. Faucett appealed, but his counsel filed an Anders brief and moved to withdraw. We granted the motion and dismissed the appeal.

         About a year after sentencing, state prosecutors charged Dr. Wagoner and other employees at his clinic with conspiracy to illegally traffic in narcotics and related drug crimes. The defendants were accused of operating a "pill mill" - writing illegal prescriptions for drug-seeking addicts, some of whom later overdosed. Faucett was ...

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