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FILED

SEP 202013

Clerk. Us D'
DistriCt OfM

,

'Strict Court
onfana

M'
ISSoula

IN THE UNITED STATES DISTRICT COlJRT


FOR THE DISTRICT OF MONTANA


MISSOULA DIVISION


UNITED STATES OF AMERICA,

PlaintifflRespondent,

Cause No. CR 11-027-M-DWM
CV 12-104-M-DWM

vs.

ORDER

DAVID DWAIN SLEDGE,

DefendantIMovant

On June 19,2012, DefendantIMovant David Sledge ("Sledge"), acting without

counsel, filed a motion to vacate, set aside, or correct his sentence, pursuant to 28

U.S.C. § 2255. Sledge also filed a motion for credit for time served. While Sledge

is a federal prisoner proceeding pro se, he is currently serving time at Montana State

Prison on a state conviction. Following appointment ofcounsel on October 18,2012,

Sledge is now represented by attorney Jeffrey M. Roth.

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I. Background

In August 2008, Sledge's stepdaughter invited a friend on a camping trip in

Glacier National Park. Sledge provided both girls with a bottle of Everclear, then

photographed them in sexually explicit poses.

In June 2009, another girl reported to police that Sledge exposed his penis to

her several times when she was staying overnight with Sledge's stepdaughter. State

authorities began an investigation. When they discovered that Sledge had engaged

in sexual crimes involving his stepdaughter and several other girls, Sledge was

charged in a Montana state court. He was arrested on or about April 7, 2010, and was

convicted of one count of sexual assault and four counts of indecent exposure. On

December 2, 2010, 1 Sledge was sentenced to a total prison term of forty years, with

32 years suspended. Presentence Report ~ 31. The state judgmentrestricted Sledge's

eligibility for parole until he completed two phases of sex offender treatment in

prison. See Letter Feb. 2,2012 (doc. 59-2), at 1. The state sentence was calculated

as commencing on April 7, 2010. See State Sentence Calculation (doc. 60-1 Ex. A)

at 1.

1 The Presentence Report gives the state sentencing date as December 2,2010. Sledge gives
the date as December 15,2010. Compare PresentenceReport~ 31 with Am. § 2255 Mot. (doc. 59)
at 2. Presumably the discrepancy lies between pronouncement of sentence in open court and the
subsequent entry of the written judgment. But the discrepancy is not relevant here.

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In the course of the state investigation, the photographs Sledge had taken in

August 2008 were found. On May 4, 2011, Sledge was indicted in this Court on two

counts ofsexual exploitation ofchildren. A warrant was issued. Sledge was arrested

at Montana State Prison on the federal warrant on June 17, 2011. Return (doc. 15)

at 1. Pursuant to a plea agreement, on August 30, 2011, Sledge pled guilty to Count

2, and the United States agreed to dismiss Count 1.

On December 21, 2011, Sledge appeared for sentencing. He faced a fifteen-

year statutory mandatory minimum. 18 U.S.C. § 2251(e). Sledge'sattorney,Federal

Defender Michael Donahoe, advocated for a sentence concurrent with the state

sentence. He also asked that Sledge's federal sentence be adjusted to reflect time

spent in state custody prior to being taken into federal custody:

UnderUSSG § 5G1.3(b) the Court should adjust the defendant's
sentence downward 14 months to account for the total incarceration time
defendant has already served state-side ....

Defendant was in pre-trial or pre-sentencing Flathead County
custody in his State case for approximately 8 months. Thus, defendant
should be awarded 14 months credit for State time already served:
December, 2010 to June, 2011 at Montana State Prison plus 8 months
pre-trial county time equals 14 months.

Def. Sentencing Mem. (doc. 32) at 3 & n.1.

Sledge's request for a concurrent sentence was rejected, but his argument under

U.S.S.G. § 5G1.3 for credit for time served was accepted:

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the Government's
[I]t's my judgment that, while I believe
recommendation is appropriate, that a 21 O-month sentence is appropriate
in this case, I am going to exercise my discretion under 5G 1.3 and
account for the credit that he would get.

I'm not going to run the sentences concurrently. I am going to
reduce the 210 months to 196 months, which will run consecutively with
the State sentence.

Sentencing Tr. (doc. 47) at 30: 19-31 :2. In addition to 196 months in federal prison,

consecutive to the state sentence, Sledge will serve a life term ofsupervised release.

Id. at 31 :3-4; Judgment (doc. 38) at 2-3.

Because Sledge did not appeal, his conviction became final fourteen days after

the entry ofjudgment, that is, on January 4,2012. Fed. R. App. P. 4(b); Gonzalez v.

Thaler,

U.S. - ' 132 S. Ct. 641, 653-54 (2012). Sledge timely filed his § 2255

motion on June 19,2012. 28 U.S.C. § 2255(f)(1).

II. Claims and Analysis

Although Sledge's current counsel advances only one claim, Sledge's pro se

submissions assert that Donahoe performed ineffectively in several respects.

Strickland v. Washington, 466 U.S. 668 (1984), governs claims alleging ineffective

assistance ofcounsel. First, Sledge must show that counsel's performance fell below

an objective standard of reasonableness. Id. at 687-88. Second, he must show "a

reasonable probability that, but for counsel's unprofessional errors, the result ofthe

proceeding would have been different." Id. at 694. "A reasonable probability is a

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probability sufficient to undermine confidence in the outcome." Id. "[T]here is no

reason for a court deciding an ineffective assistance claim ... even to address both

components ofthe inquiry ifthe defendant makes an insufficient showing on one."

Id. at 697.

A. Additional Six Months' Credit

Sledge argues that Donahoe unreasonably failed to request credit for the six-

month period between Sledge's arrest on the federal warrant on June 17,2011, and

his sentencing on December 21,2011. Am. § 2255 Mot. (doc. 59) at 5-6; Mot. for

Credit for Time Served (doc. 42) at 1-6.

Sledge's case was governed by U.S.S.G. § 5Gl.3(c). See Presentence Report

~~ 17-27; Sentencing Tr. at 7:1-11 :16. Subsection (c) does not confer a right to the

same credit as subsection (b) does:

Downward Departure. - Unlike subsection (b ), subsection (c) does not
authorize an adjustment of the sentence for the instant offense for a
period of imprisonment already served on the undischarged term of
imprisonment. However, in an extraordinary case involving an
undischarged term of imprisonment under subsection (c), it may be
appropriate for the court to downwardly depart. This may occur, for
example, in a case in which the defendant has served a very substantial
period of imprisonment on an undischarged term of imprisonment that
resulted from conduct only partially within2 the relevant conduct for the

2 Application Note 2(A) provides that § 5G l.3(b) applies only "in cases in which all of the
prior offense" is relevant conduct and resulted in an increase in the offense level under Chapters Two
or Three. Otherwise, § 5G1.3(c) applies. Here, none of the state charges were relevant conduct

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instant offense. In such a case, a downward departure may be warranted
to ensure that the combined punishment is not increased unduly by the
fortuity and timing of separate prosecutions and sentencings.
Nevertheless, it is intended that a departure pursuant to this application
note result in a sentence that ensures a reasonable incremental
punishment for the instant offense of conviction.

U.S.S.G. § 5G1.3 Application Note 3(E).

Sledge's sentence complied with this note, but six additional months' credit

would not comply with it. Whether Sledge's case was "extraordinary" or involved

"a very substantial period of imprisonment" before the federal prosecution was

doubtful, but the doubt was resolved in Sledge's favor. Fourteen months represented

the period from Sledge's arrest to his appearance in this Court. Def. Sentencing

Mem. at 3 n.1. To put it another way, there was a 14-month hiatus in pursuit of the

federal charges, simply because the state prosecution occurred first. See Sentencing

Tr. at 7:6-14, 10:21-11:1 (citing United States v. Marler, 527 F.3d 874 (9th Cir.

2008)), 14:10-13, 14:22-15:20. Therefore, 14 months is the period oftime that was

due to "the fortuity and timing ofseparate prosecutions and sentencings." The federal

prosecution itself took six months. It would have taken six months regardless of

which prosecution occurred first. Section § 5G 1.3( c) does not contemplate credit for

Sledge for those six months, because they were not due to the fortuity and timing of

under Chapters Two or Three. Application Note 3(E) could have been construed to deny Sledge
credit for the fourteen months he was actually credited.

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the separate state and federal prosecutions.

Counsel's performance was not unreasonable, because the amount oftime he

requested was consistent with the law under U.S.S.G. § 5G1.3(c), whereas an

additional six months' credit was not. Further, Sledge suffered no prejudice,

particularly in view of the fact that fourteen months' credit was already a rather

questionable legal proposition. This claim is denied.

B. Claims Made Prior to Counsel's Appointment

Sledge's remaining claims, which he filed pro se, require little discussion.

First, in a "narrative" attached to the petition, Sledge asserts he was not guilty. He

says "there was found no proofto connect me in any way to an interest, involvement

or activity pertaining even in part with child pornography." Mot. Supp. (doc. 40-1)

at 2; see also id. at 5, 8-9. Sledge explains that, when counsel said, "They have 2

pictures as proof," he responded, "Pictures yes, exposure yes, child porn no!" Id. at

9. Under federal law, this is like saying one plus one equals zero. It is not true. A

photograph lasciviously displaying the genitals of a nude girl in a bathtub is, by

definition, child pornography. 18 U.S.C. § 2256(1), (2)(A)(v), (5), 8(A). The

prosecution is not required to prove the defendant intended to make child

pornography for distribution to others. The terms in which Sledge protests his

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innocence prove beyond a shadow of a doubt that he was guilty.3 E.g., Mot. Supp.

at 2-3. To the extent Sledge seeks reliefbased on "actual innocence," Mot. Supp. at

9, his claim is denied.

Prosecution for one offense by two separate sovereigns, that is, the State of

Montana and the United States, does not constitute double jeopardy. Heath v.

Alabama, 474 U.S. 82, 88 (1985); United States v. Wheeler, 435 U.S. 313, (1978),

followed in United States v. Lara, 541 U.S. 193,210 (2004). And, at any rate, Sledge

was prosecuted by separate sovereigns for different offenses. This claim, Mot. §

2255 (doc. 40) at 4 ~ 12A, is denied.

Sexually exploiting children by making child pornography is a federal crime,

regardless of whether it occurs in Glacier National Park or not, cf United States v.

Gallenardo, 579 F.3d 1076, 1081 (9th Cir. 2009), and, at any rate, Sledge was not

charged in Missoula County but in this Court, the United States District Court for the

District of Montana. This claim, Mot. § 2255 at 4 ~ 12B, is denied. To the extent

Sledge suggests a change of venue from the Missoula Division to the Great Falls

Division was mandatory, he is mistaken. "[W]here a district contains more than one

division," trial must be held "in the division where the offense was committed, unless

3 His statements in the § 2255 motion, of course, were not the evidence that proved him
guilty in the criminal case. But the statements completely contradict any possible claim that he did
not commit the crime of which he was convicted.

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the accused consents to be tried in another." Salinger v. Loisel, 265 U.S. 224,237

(1924). As for the wisdom ofcounsel's consent to proceed in the Missoula Division,

Sledge fails to show any prejudice. This claim, Mot. § 2255 at 4 ~ 12A, is denied.

Sledge's complaint about "constant conflict" and "lack of adequate

communication" with Donahoe, id. at 4 ~ 12A; see also, e.g., Mot. Supp. (doc. 40-1)

at 4, is not legally significant. He was not entitled to a "meaningful relationship"

with counsel. Morris v. Slappy, 461 U.S. 1, 13-14 (1983). Further, although he

claims Donahoe wrongly advised him that he could not receive concurrent sentences

and would be sentenced to thirty years in prison even if he accepted a plea bargain,

Mot. Supp. at 5, the record plainly shows otherwise, Change ofPlea Tr. (doc. 46) at

8: 18-21, 16: 19-18: 17. Nor was Sledge prejudiced by that advice, even ifit had been

given. Donahoe did his best to obtain a concurrent sentence, but the circumstances

ofSledge , s offense - especially his insistence that he did not sexually exploit anyone,

e.g., Sentencing Tr. (doc. 47) at 26 :2-8 - demanded a consecutive sentence. Further,

the advisory guideline range would have been 292-365 months if Sledge had been

convicted at trial, as he certainly would have been. Presentence Report ~~ 25-26,

U.S.S.G. Ch. 5 Part A (Sentencing Table); Change ofPlea Tr. at23:15-25:4. Finally,

Sledge's own allegations, see Mot. Supp. at 5-7,8-9 (regarding letters to prosecutor),

prove he was not prejudiced by counsel's allegedly deficient performance. This

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claim, Mot. § 2255 at 4 ~ 12A, is denied.

Sledge did not receive erroneous advice about his eligibility for federal parole.

Change of Plea Tr. at 11 :20-12:4. As to his state parole, even assuming he did not

realize he would not be able to complete two phases of sex offender treatment at

Montana State Prison before February 2012, see Sentencing Tr. at 16:1-4, a

reasonable person would not choose to risk conviction at trial on two counts, which

could both run consecutively to each other and to the state sentence, as well as a

three-level increase in the offense level, merely because parole from the state to the

federal sentence would not occur as quickly as previously believed. See Hill v.

Lockhart, 474 U.S. 52,59-60 (1985). This claim, Mot. § 2255 at 4 ~ 12A, is denied.

Finally, Sledge's supplement includes some language which might be

construed to allege that Donahoe did not tell him about all available plea offers. Mot.

Supp. at 11. The United States was ordered to file all of its plea offers. Order (doc.

62) at 1-2. It made only one offer. Sledge plainly knew about that one, because he

accepted it, with the two changes noted by the United States. See AUSA Peterson

Aff. (doc. 63) at 2 ~~ 3-5; compare Proposed Plea Agreement (doc. 63-1) at 2 ~ 2,

with Plea Agreement (doc. 19) at 2-3 ~ 2. Although Sledge claims Donahoe said he

was "pretty certain" he could get the United States to agree to a charge ofpossession

instead ofreceipt, Mot. Supp. at 11, it is clear that Sledge cannot show prejudice, as

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the United States did not accept Donahoe's counteroffer, AUSA Peterson Aff. at 2,-r

4. This claim, to the extent it is one, is denied.

C. New Claims

Sledge's counsel notes that Sledge makes two additional claims. Sledge claims

his state sentence is illegal to the extent it requires him to complete two phases ofsex

offender treatment before he can be paroled to his federal sentence. Am. § 2255 Mot.

(doc. 59) at 5. Aside from lacking any conceivable merit, this claim cannot be

considered in a motion filed in a federal case under 28 U.S.C. § 2255. Sledge also

claims counsel was ineffective because he failed to challenge application ofU.S.S.G.

§ 4B 1.5(b)(1). Am. § 2255 Mot. at 5; see also Presentence Report' 23. He does not

give any reason why that guideline should not have applied. It did apply. See

Presentence Report,-r 31; 18 U.S.C. §§ 2244,2246(3), 2426(b)(1)(B); U.S.S.G. §

4B1.5 Application Notes 2, 4(A)(i), (B).4 These claims are denied.

v. Certificate of Appealability

"The district court must issue or deny a certificate of appealability when it

4 Although it may not be necessary, because Sledge's stepdaughter asserted that he touched
her in a sexually inappropriate manner on more than one occasion, it is worth noting that the crime
ofconviction may be counted as one ofthe two required "occasions" establishing a pattern ofactivity
involving prohibited sexual conduct under this guideline. See United States v. Broxmeyer, 699 F.3d
265,286 (2d Cir. 2012). Thus, Sledge was convicted of two qualifying "occasions," one in state
court, involving prohibited sexual conduct with his stepdaughter, and a separate one in this Court,
involving the production of child pornography.

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enters a final order adverse to the applicant." Rule II(a), Rules Governing § 2255

Proceedings. "A certificate of appealability may issue ... only if the applicant has

made a substantial showing of the denial of a constitutional right." 28 U.S.C. §

2253( c )(2). The standard is satisfied if "jurists of reason could disagree with the

district court's resolution of [the] constitutional claims" or "conclude the issues

presented are adequate to deserve encouragement to proceed further." Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U:S. 473, 484

(2000)).

None of Sledge's claims meets the required standard. Counsel was not

ineffective in failing to request an additional six months' credit against the federal

sentence because U.S.S.G. § 5G1.3(c) did not support an award ofthat credit. Even

if Sledge did not intend to distribute the photos he took, he sexually exploited the

victims by photographing them in lascivious display oftheir pubic areas. Prosecution

by the State ofMontana for certain offenses and prosecution by the United States for

a different offense does not constitute double jeopardy. Jurisdiction lay in federal

court in the District ofMontana, regardless ofvenue, Sledge's counsel consented to

venue in the Missoula Division, and Sledge can show no prejudice from that consent.

Even assuming Sledge's counsel told him he could only be sentenced to thirty years

on top of his state sentences, he was not prejudiced by that advice, because counsel

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did his best to obtain a concurrent sentence, and no reasonable person in Sledge's

position would have risked conviction on two counts and a three-level increase in the

offense level. In addition, even assuming counsel wrongly advised Sledge about

when he would be eligible for state parole, again, no reasonable person in Sledge's

position would have chosen trial over a guilty plea. Sledge was given only one plea

offer, and, with two limited amendments, he accepted it. Finally, Sledge cannot

challenge an unrelated state sentence in a motion under 28 U.S.C. § 2255, and he

offers no basis on which counsel could have challenged application of the plainly

applicable U.S.S.G. § 4B1.5(b)(1).

There is no reason to encourage further proceedings in this matter. Sledge

makes no claim with any substance to it. He has had every opportunity to show merit

in any claim. He cannot do so. A COA is not warranted.

Accordingly, IT IS HEREBY ORDERED as follows:

1. All claims having been denied, Sledge's motion to vacate, set aside, or

correct the sentence under 28 U.S.C. § 2255, his motion for credit for time served,

and his amended § 2255 motion (docs. 40, 42, 59) are DENIED.

2. A certificate of appealability is DENIED. The Clerk of Court shall

immediately process the appeal if Sledge files a Notice of Appeal.

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3. The Clerk ofCourt shall ensure that all pending motions in this case and in

CV 12-104-M-DWM are terminated and shall close the civil file by entering

judgment in favor of the United States and against Sledge.

DATED this2116cray of September, 2013.

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