United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
Morris United States District Court Judge.
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
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,
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
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.
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
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).
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.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).
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.
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).
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).
Court appointed habeas counsel to represent Birdtail on July
11, 2016. Order (Doc. 71). Habeas counsel filed an amended
motion on October 11, 2016. The United States ...