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IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION



)
)
) Civil No. 4:12-CV-01501-FJG
) Crim. No. 4:09-CR-00331-FJG-1
)
Respondent. )

JONATHAN D. KINDRICK,
Movant,

vs.

UNITED STATES OF AMERICA,

ORDER

Currently pending before this Court is movant=s motion pursuant to 28 U.S.C. ' 2255
to vacate, set aside, or correct his sentence (Doc. No. 1). The Court finds that it has
jurisdiction over this matter.

I. BACKGROUND

Following a plea agreement, the movant pled guilty to possession of child
pornography in violation of 18 U.S.C. §2252(a)(4). The movant was sentenced to 240
months imprisonment. Movant timely appealed his sentence to the Eighth Circuit, and on
October 21, 2011, the Eighth Circuit entered a final judgment granting the prosecution’s
motion to dismiss because the claims raised were waived by the plea agreement. Movant
has now filed the present motion.

Movant asserts four grounds in his motion. Movant asserts ineffective assistance
of counsel, asserting that his counsel failed to turn over discovery in a timely manner so
that he may file a §2255 motion. Movant asserts that the prosecution failed to show a
jurisdictional nexus between his conduct and interstate or foreign commerce. Movant
asserts that the government failed to prove or link images to the Internet. Movant asserts
that the government enhanced his sentencing based on non-Shepard approved
documents.

II. STANDARD

To establish a claim for relief based upon ineffective assistance of counsel, the

movant must satisfy the Strickland standard by establishing that (1) his counsel’s

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performance “fell below an objective standard of reasonableness,” and (2) that the
deficient conduct prejudiced his defense. U.S. v. Davis, 406 F.3d 505, 508 (8th Cir.
2005), cert. denied, 546 U.S. 1117 (2006)(quoting Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). In determining whether
counsel’s conduct was objectionably reasonable, there is a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance. Id.
In determining prejudice, the individual must show that there is a reasonable probability
that but for counsel’s unprofessional errors; the result of the proceeding would have
been different. Id. at 509. Defendants have a constitutional right to effective assistance
of counsel with respect to plea offers that lapse or are rejected. Williams v. United
States, 705 F.3d 293, 294 (8th Cir. 2013)(citing Lafler v. Cooper, 566 U.S. ___, 132
S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, 566 U.S. ___, 132 S.Ct.
1399, 182 L.Ed.2d 379 (2012)).

A.

Ineffective assistance of counsel?

III. DISCUSSION

Kindrick argues that his counsel was ineffective because he was not given his
discovery in time to allow him to file a timely §2255 motion. Doc. 1 at p. 4. The United
States, however, argues the defendant’s claim is invalid because he filed a timely §2255
motion. Doc. 5 at p. 10. In this case, Kindrick’s judgment on appeal was issued on
October 21, 2011. Pursuant to the Supreme Court Rules, Kindrick had 90 days to
appeal the Court of Appeals decision by filing a petition for a writ of certiorari.
Therefore, the deadline to appeal the judgment and/or the date the judgment would be
finalized would have been January 19, 2012. As a result, under §2255(f)(1) the 1-year
statute of limitations on Kindrick’s case would have ended on January 18, 2013.
Kindrick’s §2255 motion was mailed on December 26, 2012 and filed with the court on
December 31, 2012 prior to the January 18, 2013 deadline and within the 1-year statute
of limitations. Doc. 1 at pp. 12-13. Under the given facts it does not appear that
Kindrick’s motion was untimely because the motion was mailed and filed with the court
before the 1-year statute of limitations, which would have ended on January 18, 2013.

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The timely filing indicates that counsel’s conduct did not fall below what was objectively
reasonable and Kindrick has not provided any facts to suggest that he had been
prejudiced by counsel’s conduct. Kindrick’s ineffective assistance of counsel claim fails
because his motion was timely and the facts do not support that counsel’s actions fell
below what is objectively reasonable or that he was prejudiced in his ability to file his
§2255 motion.

B.

Did the government fail to show a jurisdictional nexus between
Kindrick’s actions and a facility of interstate commerce when he
admitted that he knowingly possessed child pornography that was
produced outside of Missouri on his cell phone?

The statute that Kindrick plead guilty to states:

“Any person who either knowingly possesses…1 or more…films, video, tapes or
other matter which contain any visual depiction that has been mailed, or has been
shipped or transported using any means or facility of interstate or foreign commerce
or in or affecting interstate or foreign commerce, or which was produced using
materials which have been mailed or so shipped or transported, by any means
including by computer, if— (I) the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of
such conduct; shall be punished in subsection (b) of this section.” 10 U.S.C
§2252(a)(4)(B).

The statute offers three bases for charging possession of child pornography. In United
States v. Birts the court held that when a statute is worded in the disjunctive, then the
district court may instruct the jury in the disjunctive form used in the statute because
proof of any one of the violations charged will sustain a conviction. United States v.
Birts, 170 Fed.Appx. 1001, 1001 (8th Cir. 2006), cert. denied, 549 U.S. 1266, 127 S.Ct.
1483, 167 L.Ed.2d 231(2007). With respect to technology the courts have held that
telephones are instrumentalities of interstate commerce regardless of whether it is used
for interstate or intrastate purposes. United States v. R.J.S., Jr., 366 F.3d 960, 961 (8th
Cir.), cert.denied, 543 U.S. 909 (2004). Additionally, the court has held that cell phones
meet the definition of a “computer,” whether or not it uses the Internet. United States v.
Kramer, 631 F.3d 900, 902-903 (8th Cir.), cert. denied, 131 S.Ct. 2977, 180 L.Ed.2d
258 (2011). Kindrick argues that the government did not meet their burden because
they failed to show that “the visual depictions contained material which had been
transported in interstate or foreign commerce by any means including by computer.”

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Doc. 1 at p. 5. Kindrick admitted to the following in his probation interview and plea
agreement:

? He knowingly possessed images of child pornography on his cell phone and that

he “just forgot to erase them” (Plea Agrmt. at p. 2; Doc. 5 at p. 12.);

• He knew that the child pornography images had been produced outside of the

state of Missouri (Plea Agrmt. at p.3; Doc. 5 at p. 12.); and

• That his Motorola Net 10 black flip phone cellular phone was manufactured

outside the state of Missouri. (Plea Agrmt. at p. 3; PSR at p. 5; Doc. 5 at p.12.).
The facts indicate that the jurisdictional nexus was satisfied when Kindrick knowingly

possessed images of child pornography that were produced outside of the state of
Missouri on his cell phone. His cell phone is an item that (a) is deemed to be an
instrumentally of interstate commerce, (b) is deemed to be a computer by law, and (c)
was manufactured outside the state of Missouri. Kindrick’s admissions satisfy not just
one of the jurisdictional prongs as required by the statute, but all three of the
jurisdictional prongs because the facts indicate that Kindrick knowingly possessed 1 or
more images, “visual depictions,” in Missouri involving a minor engaged in sexually
explicit conduct on his cell phone. The images on the cell phone had been (1)
transported using a cell phone, which is a means or facility of interstate or foreign
commerce, (2) transported into Missouri via a cell phone and; (3) were produced using
a cell phone that has been transported in interstate or foreign commerce by any means
including a “computer.” The Court finds that more than one jurisdictional nexus
between Kindrick’s conduct and a facility of interstate commerce is satisfied, therefore
the claim fails.

C. Was the government required to link the images found on the defendant’s

cell phone to the Internet?

Kindrick argues that his sentence is improper because the government did not

offer proof about how the images were downloaded from the Internet or how the images
came to be on his cell phone when the cell phone did not have Internet access. Doc. 1
at p. 6. The government asserts that the proclaimed linkage is not required by the
statute, therefore making the claim invalid. Doc. 5 at p. 13. The language of 10 U.S.C
§2252(a)(4)(B), the statute Kindrick pled guilty to, is stated above in Section B. 10

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U.S.C §2252(a)(4)(B) does not make any reference to the Internet nor does it require
that there be evidence regarding the connection between the conduct and the Internet.
Rather, the statute only requires that there be a linkage between the “visual depictions”
and either (a) their transportation by either a means or facility of interstate commerce, or
(b) transportation in interstate commerce, or (c) production by a means transported in
interstate commerce. The Court finds that the claim fails because the statute does not
require the government to link the images found on Kindrick’s cell phone to the Internet.
D. Did the court improperly use information from the Missouri Department

of Social Services records to enhance sentencing?

Kindrick argues that the sentencing court improperly considered information that

was included in the Missouri Department of Social Services records to enhance his
sentence. In determining sentencing the district court has a wide level of discretion as
to the information and sources considered. U.S. v. Atkins, 250 F.3d 1203, 1212 (8th
Cir. 2001). The Eighth Circuit has held that a district court has wide discretion as to the
kind of information considered or its source at sentencing, and the court may consider
criminal activity for which the defendant has not been prosecuted and hearsay, provided
the defendant is given the opportunity to rebut or explain it. United States v. Atkins, at
1212-1213. The main vehicle used to evaluate the facts, the defendant’s characteristics
and sentencing is the Presentence Investigation Report (PSR). U.S. v. Palmer, 278
Fed.Appx. 702, 704 (8th Cir. 2008). A PSR may be accepted as true by the sentencing
court unless the defendant objects to specific allegations. U.S. v. Wintermute, 443 F.3d
993, 1005 (8th Cir. 2006).

I. May the records from the Missouri Department of Social Services be
used to assess Kindrick’s “pattern of activity” and §3553(a) factors to
determine sentencing?

Kindrick argues that the sentencing court improperly considered information in
the Presentence Investigation Report (PSR) from the Missouri Department of Social
Services to determine sentencing. 18 U.S.C. § 3661, states that “[n]o limitation shall be
placed on the information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.” U.S. v. Palmer, at 704.
Furthermore, the district court is required to consider the sentencing factors set forth by

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18 U.S.C. § 3553(a), which includes “the history and characteristics of the defendant.”
U.S. v. Palmer, at 704; 18 U.S.C. § 3553(a)(1). U.S.S.G. §2G2.2(b)(5) requires an
enhancement only if the defendant “engaged in a pattern of activity involving sexual
abuse or sexual exploitation of a minor.” U.S.S.G. §2G2.2(b)(5). “Pattern of activity” is
defined as:

“any combination of two or more separate instances of the sexual abuse or
sexual exploitation of a minor by the defendant, whether or not the abuse or
exploitation (A) occurred during the course of the offense; (B) involved the same
minor; or (C) resulted in a conviction for such conduct.” U.S.S.G. §2G2.2(b)(5),
Note 1.

Additionally, the guideline notes that when subsection (b)(5) is applied “[a] conviction
taken into account under subsection (b)(5) is not excluded from consideration of
whether that conviction receives criminal history points pursuant to Chapter Four, Part A
(Criminal History).” U.S.S.G. §2G2.2(b)(5), Note 3.

Kindrick’s pattern of activity was established in the PSR by citing to responses
given to a polygraph test, on February 19, 2009, where Kindrick was asked questions
related to his past sexual contacts. PSR at p. 8. During the test Kindrick reported more
than two instances of past sexual contact, specifically he had contact with a four year-
old male, three different five year-old females, a six year-old male, four 14-year-old
males, and eight year-old female during the time he was 5 to 14 years of age. Id. The
PSR notes that these sexual contacts are confirmed in Jackson County Children’s
Division records. Id. The wide discretion of the court allows for the consideration of the
facts listed in the PSR as true. Accordingly, the court may find that Kindrick has a
pattern of activity involving sexual abuse or exploitation of a minor because he has had
two or more separate instances of sexual abuse or exploitation. Likewise, the inclusion
of the information in the criminal history section of the PSR is proper pursuant to the
sentencing guidelines. The Court finds that Kindrick’s sentence was properly enhanced
because the sentencing court properly applied the “pattern of activity” standard and
considered all of the §3553(a) factors and criminal history to determine the appropriate
sentence.

ii. Did the sentencing court improperly rely upon information barred by
Shepard when determining sentencing?

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The court in Shepard v. United States looked at what documents a sentencing

court could rely upon to determine whether a prior conviction qualified as a “violent
felony,” within the Armed Career Criminal Act (ACCA), allowing for an enhancement of
sentencing. The court held that when there is a guilty plea the court is limited to looking
at the terms of the charging document, terms of the plea agreement or transcript of
colloquy between the judge and defendant in a factual basis to confirm whether the
crime meets the proper elements to enhance a sentence under the ACCA. Shepard v.
United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263,161 L.Ed.2d 205 (2005). In
United States v. Webster, 636 F.3d 916 (8th Cir.2011), the Eighth Circuit described the
holding of Shepard as:

Shepard’s limitation of evidence “to examining the statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant assented” is
addressed only to those situations where “a later court [is] determining the
character of the prior conviction.”

Id. at 919 (quoting Shepard 544 U.S. at 16,125 S.Ct.1254,161 L.Ed.2d 205). U.S.S.G.

§2G2.2(b)(5) requires an enhancement if the defendant “engaged in a pattern of activity

involving sexual abuse or sexual exploitation of a minor.” “Pattern of activity” is outlined

above in Section D(I).

Kindrick asserts that the information included in the PSR regarding his juvenile

criminal history should not have been included because doing so violates Shepard. Doc.

1 at p.8. The Government does not believe that Shepard applies because the opinion

does not discuss what records a sentencing court can consider and rely upon to support

a guideline sentence. Doc. 5 at p.15. In order for Shepard to apply in this case, the

enhancement would have to arise out of the ACCA or a similar statue and the

enhancement would have to involve determining the character of a prior conviction by

looking at whether a prior pleaded offense meets the same elements of an offense that

would be considered for enhancement purposes under the statute. In evaluating

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Shepard and the facts of this case, it is evident that Shepard does not apply to Kindrick

because unlike in Shepard where the enhancement arises out of the ACCA, the

challenged enhancement in Kindrick’s sentencing arises out of the USSC Guidelines.

Furthermore, the court is not trying to determine the character of a prior conviction, but

rather the defendant’s “pattern of activity.” Unlike Shepard the language of the

guideline does not require that the elements of the pleaded or past behavior meet the

same elements; other than that the offenses have to generally involve the sexual abuse

or exploitation of a minor. More importantly, the guideline does not require that the

defendant be convicted of the offense in order for the information to be considered as

the defendant’s “pattern of activity.” Shepard does not apply in this case because

Kindrick’s sentencing enhancement does not arise out of the ACCA or a similar statute,

but rather arises out of the sentencing guidelines which sets a different standard since

U.S.S.G. §2G2.2(b)(5) only requires that there be information indicating that the

defendant has a combination of two or more instances of sexual abuse or exploitation

which may be unrelated or not a prior conviction. The Court finds that Shepard does not

apply because U.S.S.G. §2G2.2(b)(5) has a different standard than Shepard regarding

what information can be considered in determining sentencing.

E. Is the Motion Barred by the Waiver Contained in the Plea Agreement?

Paragraph 15 of the plea agreement states:

“the defendant expressly waives his right to appeal his sentence his sentence,
directly or collaterally, on any ground except claims of (1) ineffective assistance
of counsel; (2) prosecutorial misconduct; or (3) an illegal sentence. An “illegal
sentence” includes a sentence imposed in excess of the statutory maximum, but
does not include less serious sentencing errors, such as a misapplication of the
Sentencing Guidelines, an abuse of discretion, or the imposition of an
unreasonable sentence.” Plea Agrmt. p. 12.

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In this case, Kindrick was sentenced to 240 months, the statutory maximum for his
offense. Doc. 54 at p. 2. In this appeal he claimed (1) ineffective counsel because
counsel did not turn over discovery in time to file a timely §2255 motion and (2) illegal
sentence because the court considered information to enhance sentencing that should
have been limited by Shepard. Doc. 1 at pp. 4-8. As mentioned above in section A,
Kindrick’s §2255 motion was timely, therefore, there is no evidence to suggest that
counsel’s conduct was unreasonable or that it prejudiced the defendant. Additionally,
Kindrick’s sentence was not imposed in excess as he was sentenced to the statutory
maximum. Kindrick’s sentencing claims do not suggest that his sentence was illegal, but
rather that the court abused its discretion. The claims raised by the Kindrick are
therefore barred from appeal, since he waived his ability to appeal sentencing errors by
agreeing to plead guilty. This is further supported by the appellate court’s decision to
dismiss his previous appeal based on the appeal waiver in the plea agreement. Doc. 5
at p. 4. The Court finds that Kindrick’s claims are insufficient and are barred by waiver.

V. JUDGMENT

The Court has reviewed movant=s motion and memorandum in support (Doc. No.
1), respondent=s opposition (Doc. No. 5), and the record in the underlying criminal case,
and finds that movant=s allegations are without merit for the reasons stated above. In
particular, the Court finds that the documents relied upon when determining sentencing
were not in violation of Shepard because the sentence enhancement was properly
considered under the standards set forth in U.S.S.G. §2G2.2(b)(5) and the §3553 factors.
Therefore, movant=s motion to vacate, set aside or correct his sentence pursuant to

28 U.S.C. ' 2255 (Doc. No. 1), filed December 31, 2012, is hereby DENIED.

No evidentiary hearing will be held in this matter because the issues raised are
resolvable by the record. Furthermore, movant will be denied a motion for a certificate of
appealability, in that the issues raised are not debatable among reasonable jurists, nor
could a court resolve the issues differently.

IT IS SO ORDERED.

Date: July 11, 2013
Kansas City, Missouri



S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

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