United States v. Leafstedt

          ORDER RE § 2255 MOTION

          SHARON L. GLEASON UNITED STATES DISTRICT JUDGE

         Before the Court at Docket 37 is Defendant Quincy Leafstedt's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255. The Government filed a response at Docket 39.

         BACKGROUND

         On May 20, 2015, Quincy Leafstedt was indicted on charges related to child pornography.^[1] Mr. Leafstedt ultimately pleaded guilty to one count of possession of child pornography.^[2] Applying the United States Sentencing Commission's Federal Sentencing Guidelines, the Presentence Report calculated Mr. Leafstedt's total offense level at 30.^[3]At sentencing, the Court adopted the guidelines calculation set out in the Presentence Report.^[4] On February 28, 2017, the Court sentenced Mr. Leafstedt to a below guidelines term of 75 months' imprisonment.^[5]

         DISCUSSION

         Mr. Leafstedt asserts that he should have received “a 2 level downward departure based on United States Sentencing Guidelines § 2G2.2(b)(1) which provides for a . . . 2 level reduction in the Base Offense Level in light of there having [been] no ‘distribution' of unlawful images under the circumstances of his case.”^[6] Mr. Leafstedt “contends that such a 2 level reduction in the Base Offense Level was not provided, and that he is so entitled to receive it.”^[7] U.S.S.G. § 2G2.2(b)(1) provides:

If (A) subsection (a)(2) applies; (B) the defendant's conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor; and (C) the defendant did not intend to traffic in, or distribute, such material, decrease [the offense level] by 2 levels.^[8]

         By its own language, § 2G2.2(b)(1) only allows for a 2 level decrease if § 2G2.2(a)(2) applies. Section 2G2.2(a) provides:

         (a) Base Offense Level:

         (1) 18, if the defendant is convicted of 18 U.S.C. § 1466A(b), § 2252(a)(4), § 2252A(a)(5), or § 2252A(a)(7).

         (2) 22, otherwise.

         Thus, the 2 level reduction provided for by § 2G2.2(b)(1) only applies when a defendant's base offense level is 22. However, Mr. Leafstedt pleaded guilty to a violation of § 2252(a)(4), and therefore his base offense level was 18.^[9] Accordingly, he was not entitled to the 2 level decrease provided in § 2G2.2(b)(1).

         Furthermore, Mr. Leafstedt did not receive an increase in offense level for distribution. As the PSR states under Specific Offense Characteristics:

If the defendant knowingly engaged in distribution, other than distribution described in subdivisions (A) through (E), the offense level is increased by two levels. U.S.S.G. 2G2.2(b)(3)(F). In this case, although Leafstedt was using a peer-2-peer sharing system and the FBI SA was able to download a series of videos from Leaftstedt's [sic] computer, there has been no evidence submitted to verify that ...