United States v. Matthew Poe, 2014 U.S. App. LEXIS 16195

Background

Poe was indicted for possession of child pornography (Dec 2010), pled guilty (May 2011), and was sentenced to 240 months (statutory maximum) after the PSR yielded an advisory Guidelines range of 235–240 months.
The PSR applied a five-level enhancement under USSG §2G2.2(b)(5) for a “pattern of activity” based on two separate prior incidents of sexual abuse of minors; Poe did not object at sentencing.
The district court did not state that the federal term would run concurrent to Poe’s existing 10-year state sentence, so the federal term ran consecutively by operation of law.
Poe asked counsel to file an appeal; counsel failed to do so. Poe obtained relief under 28 U.S.C. §2255 for ineffective assistance limited to counsel’s failure to file the requested appeal; the district court vacated and then reimposed the same 240-month sentence and entered an amended judgment to restart appeal time.
On appeal Poe challenged: (1) the consecutive federal sentence, (2) the five-level Guidelines enhancement, and (3) various claims of ineffective assistance (including failure to appeal, failure to seek concurrency, failure to object to the enhancement, and erroneous sentencing advice).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by imposing the 240-month federal sentence to run consecutively to Poe’s state sentence	Consecutive sentence was improper; federal sentence should run concurrent with the undischarged state term	District court considered §3553(a) factors and permissibly imposed consecutive sentence under §3584(a)	Affirmed: no plain error; court considered §3553(a) and consecutive sentence reasonable
Whether the five-level enhancement under USSG §2G2.2(b)(5) was improperly applied	Enhancement is improper because ‘sexual abuse or exploitation’ excludes mere possession/receipt of child pornography	PSR contained undisputed factual findings of two prior separate sexual-abuse incidents satisfying ‘‘pattern of activity’’ definition	Affirmed: no plain error; enhancement properly applied based on prior abuse facts
Whether counsel was ineffective for failing to file a requested appeal	Counsel failed to file the appeal as requested (ground the district court previously granted)	Government notes ineffective-assistance claims are generally litigated under §2255 and factual record is incomplete for other claims	Declined to reach additional ineffective-assistance claims on direct appeal; only failure-to-appeal relief had been granted below
Whether other ineffective-assistance claims (concurrency argument, failure to object to enhancement, bad sentencing advice) are reviewable on direct appeal	These claims should be considered now on direct appeal	District court limited §2255 relief and made no factual findings on these claims; they were denied as moot below	Declined: not an exceptional case for resolving these claims on direct appeal; remand to §2255 collateral process if desired

Key Cases Cited

United States v. McDonald, 521 F.3d 975 (reasonableness review of consecutive vs concurrent sentencing)
United States v. Mathis, 451 F.3d 939 (abuse-of-discretion analogy for reasonableness review)
United States v. Lomeli, 596 F.3d 496 (plain-error review when issue not raised at sentencing)
United States v. Rutherford, 599 F.3d 817 (failure to cite §3584 not reversible where §3553(a) factors considered)
United States v. Bastian, 603 F.3d 460 (de novo review of Guidelines application; factual findings for clear error)
United States v. Pazour, 609 F.3d 950 (plain-error standard for unpreserved Guidelines objections)
United States v. Powills, 537 F.3d 947 (application of USSG §5G1.3(c) re concurrency discretion)
United States v. Sanchez-Gonzalez, 643 F.3d 626 (ineffective-assistance claims on direct appeal are limited to exceptional cases)
United States v. Schwarte, 645 F.3d 1022 (ineffective-assistance claims generally better raised in collateral proceedings)