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United States v. Birdtail

United States District Court, D. Montana, Great Falls Division

October 10, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,


          Brian Morris United States District Court Judge.

         This case comes before the Court on Defendant/Movant Birdtail's amended motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Briefly stated, Birdtail makes three claims of ineffective assistance of counsel:

1. He would have proceeded to trial if trial counsel correctly had advised him that his likely advisory guideline range would not be 46 to 57 months, but 168 to 210 months, or 235 to 293 months. Am. § 2255 Mot. (Doc. 77) at 5-6, 13, 17-18.
2. Both his original counsel and counsel at sentencing unreasonably advised against moving to withdraw the guilty plea. Reply (Doc. 84) at 6.
3. Counsel at sentencing provided ineffective assistance by failing to object to an overly restrictive condition of supervised release.

         I. Background

         On March 25, 2013, Birdtail was indicted on one count of aggravated sexual abuse, a violation of 18 U.S.C. § 2241(c) (Count 1), and one count of abusive sexual contact, a violation of 18 U.S.C. § 2244(a)(5) (Count 2). Conviction on Count 2 carried a maximum sentence of life in prison. Conviction on Count 1 carried a life maximum and a statutory mandatory minimum sentence of 30 years. See 18 U.S.C. § 2241(c). At the time of the indictment, Birdtail had a prior conviction under Montana law for felony sexual assault against a 14-year-old girl. See Presentence Report ¶ 46.

         The federal indictment arose from allegations that Birdtail penetrated or touched the anus of a fifteen-month-old child in June 2012. The child's mother noticed injuries to the area while changing the child's diaper. Birdtail, who had been watching the child while the mother ran errands, denied any wrongdoing. The child was taken to a hospital, where a nurse found the injuries consistent with sexual abuse. Birdtail underwent a polygraph test in March 2013, with an FBI agent. During the test, he continued to deny having sexually abused the child. Birdtail allegedly told the agent after the test that he had touched the child's anus because he “got the ugly urge.” See Offer of Proof (Doc. 26) at 3-5; Presentence Report ¶¶ 10-15.

         Birdtail moved to suppress his statement to the agent on the ground that it was involuntary. The United States filed a response brief, but the parties reached a plea agreement before a hearing was held. The United States agreed to dismiss Count 1 in exchange for Birdtail's guilty plea to Count 2. See Plea Agreement (Doc. 27) at 2-3 ¶¶ 2-3. Birdtail pled guilty in open court on May 16, 2013. See Minutes (Doc. 30).

         The Court set sentencing for August 27, 2013. See Order (Doc. 31). A presentence report was prepared. In the draft report, the probation officer took into account Birdtail's previous conviction for felony sexual assault and applied U.S.S.G. § 4B1.5(a). The resulting advisory guideline range was 235 to 293 months in prison. When Birdtail received the report, he did not understand “where all of my points were coming from, ” because, he said, counsel's “calculations for my guidelines was a differential of-it was breathtaking, if I might add. His differential was, like, 20 years.” Tr. of Ex Parte Mot. Hr'g (Doc. 76) at 7:17-23.[1]Counsel filed a motion to withdraw. The Court held a hearing on Bulltail's alleged problem with his trial counsel. The Court continued the sentencing date. The Court appointed new counsel to represent Birdtail. See Mot. to Withdraw (Doc. 40); Minutes (Doc. 42); Ex Parte Order (Doc. 43); Order (Doc. 44).

         Sentencing counsel consulted with Birdtail regarding a motion to withdraw the guilty plea, but Birdtail decided to proceed to sentencing. See Sentencing Tr. (Doc. 85) at 5:13-6:3. U.S.S.G. § 4B1.5(a) overrode the guideline calculations under chapter 2, 3, and 4A. See Presentence Report ¶¶ 21-27; U.S.S.G. § 4B1.5(a)(1)(B)(i), (2)(B). With a three-level reduction for acceptance of responsibility, Birdtail's total adjusted offense level stood at 34, and his criminal history category was V. The advisory guideline range was 235 to 293 months.

         The Court sentenced Birdtail to serve 264 months in prison, to be followed by a life term of supervised release. Among other conditions of supervised release, the Court prohibited Birdtail from possessing or viewing “any materials depicting sexually explicit conduct as defined in 18 U.S.C. § 2256(2)(A)(i)-(v).” Judgment (Doc. 54) at 4 ¶ 5 (Special Condition No. 5).

         Birdtail appealed the sentence. The Ninth Circuit affirmed. See Mem. (Doc. 63), United States v. Birdtail, No. 14-30006 (9th Cir. Mar. 18, 2015). Birdtail timely filed his motion under 28 U.S.C. § 2255 on March 15, 2016. See 28 U.S.C. § 2255(f)(1); Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).

         The Court appointed habeas counsel to represent Birdtail on July 11, 2016. Order (Doc. 71). Habeas counsel filed an amended motion[2] on October 11, 2016. The United States ...

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