Michael D. Faucett, Petitioner-Appellant,
United States of America, Respondent-Appellee.
September 28, 2016
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.
Kanne, Sykes, and Hamilton, Circuit Judges.
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.
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.
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.
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
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.
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.
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.
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
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 ...