Petition for Writ of Certiorari — Timothy Warren Vallier, Petitioner v. United States

Supreme Court briefJul 19, 2018

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NO. 17-A-1310

IN THE SUPREME COURT OF

THE UNITED STATES OF AMERICA

TIMOTHY WARREN VALLIER

Petitioner

UNITED STATES OF AMERICA

Respondent

)

FROM THE WESTERN DISTRICT

OF MICHIGAN (SOUTHERN

)

DIVISION)

)

CASE NO: 1;16-CR-00172-GJQ

APPELLATE CASE NO: 11642

ON PETITION FOR WRIT OF CERTIORARI

FROM THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FOR: TIMOTHY WARREN VALLIER

REG. NO.: 21221-040

F.C.I. Elkton

P.O. BOX: 10

LISBON, OHIO 44432

ISSUES PRESENTED

The 6th Circuit Court of Appeals issued it's opinion on

February 20, 2018, and on June 18, 2018 this Honorable

Court entered it's judgement in Rosales-Mireles, Slip

op 16-9493, allowing for unpreserved guideline calculation

errors to be reviewed under Plain Error standards and the

petitioner at bar asserts his guidelines were calculated

in error where he was not considered for a three (3)

point reduction under §2x1.1.

The Circuit Courts are split as to the correct method

for determination whether an image depicts a lascivious

exhibition of a child's genitals or pubic area. The

first, third, and fifth circuits make an "objective

inquiry" relying on the "four corners rule," while

the sixth, eighh, and nineth circuits use extrinsic

evidence and includes the intent of the producer.

The resulting difference leads to manifest injustice

where defendants convictions are reversed in some circuits

(U.S. v. Steen, 634 F3d 822 (5th Cit. 2011) or receive

substantial sentences like the petitioner at bar for

nearly identical conduct.

PARTIES

TIMOTHY WARREN VALLIER

REG. NO. 21221-040

F.C.I. ELKTON

P.O. BOX 10

LISBON, OHIO 44432

Petitioner

MR. NOEL J. FRANCISCO

UNITED STATES DEPARTMENT OF JUSTICE

950 PENNSYLVANIA AVE N

WASHINGTON D.C. 20530-0001

Solicitor General

TESSA K. HESSMILLER

U.S. ATTORNEY (GRAND RAPIDS, MI)

THE LAW BUILDING

300 IONIA AVE NW

P.1J.:B0X20.8

GRAND RAPIDS, MI 49501-0208

Prosecutor

Table of Contents

Questions Presented for Review

Parties to this Action.

Table of Contents

Table of Cases

Citations to Opinions Previously Entered Below.

Jurisdictional Statement:.

Procedural History of the Case

Statement of Facts

Reasons for Granting the Writ

Relief

iii

.vi

Appendix

Appendix A.

Appendix B.

Appendix C.

Appendix D.

Appellant's Brief

Appelleé's Brief

Appellant's Reply Brief

.6th Cir. Opinion Slip op. 17-1642

111

Table of Cases

Supreme Court Opinions

Gall v. United States: 552 U.S. 38, 128 S.Ct. 586,

169 L.Ed 2d 445 (2007)

61 8

Griffin v. Kentucky: 479 U.S. 314, 107 S.Ct. 708,

93 L.Ed 2d 647 (1987)

Rosales-Mereles Slip op. 16-9493 (2018);, 201 L.Ed 2d 376

585 U.S., 138 5. Ct. 1897.

1, 6, 7

Opinions Below

Cora v. Bolard:

825 F.Supp. 905 (N.D. Ohio 2011).

United States v. Brittain:

539 F3d 445 (6th Cir. 2008).

United States v. Brittain (on remand from 539 F3d 445):

1:06-CR-293 (w.D. Michigan 1/13/09).

61 8

United States v. Collins: 828 F3d 386 (6th Cir. 2016)

United States v. Castillo:

(6th Cir. 2008)

289 Fed: Appx. 71

United States v. Conley: 2017 U.S. Dist. LEXIS 198922

(E.D.

2017)

United States v. Corp: 235 F3d 325, 327 (6th Cir. 2000)

(Reversed on other grounds)

.8,12, 14

United States v. Dorvee: 616 F3d 174 (2nd Cir. 2010).

United States v. Goodale: 831 FSupp. 2d 804

(Dist.. of VT 2011)

United States v. Jenkins: 854 F3d181 (2nd Cir. 2017)

United States v. Lyons: 675 Fed Appx 28 (6th Cir. 2017).

United States v. Martinez: 342 F3d 1203 (10th Cir. 2003)

United States v. Poole: 2018 U.S. App. LEXIS 2268

(6th Cir. 2018)

United States v. Cox Slip op. 16-2404 at 14

(6th Cir. 9/14/17)

United States v. Dixon: 2018 U.S. App. LEXIS 3159

(6th Cir. 2018)

'iv

8 1 12

United States v. Quinn: 2018 U.S. App. LEXIS 3289

(6th Cir. 2018)

United States v. Richard: 695 F3d 527 (6th Cir. 2012)

United States v. Scaggs: 2018 U.S. App. LEXIS 5617

(6th Cir. 2018)

United States v. Steward: 729 F3d 517 (6th Cir. 2013)

United States v. Studabaker: 574 F3d 423 (6th Cir 2009).

United States v. Thomas: 2018 U.S. App. LEXIS 6078

(6th Cir. 2018)

6, 8

United States v. Wilms: 495 F3d 277 (6th Cir. 20 07)

Title 18 U.S.C. §2251

6 1 8 7 12

United States V. Steen: 634 F3d 822 (5th Cir. 2011)

Title 18 U5.C. §2252(A)

Title 18 U.S.C. §3231

Title 18 U.S.C. §3553

Title 28 U.S.C. §1201

Title 28 U.S.C. §1254

61 7

United States Sentencing Guidelines

U.S.S.G. §2x1.1

Citations to Opinions Entered Below

U.S. v. Valuer: 2018 U.S. App. LEXIS 3919 (6th Cit. 2018)

JURISDICTIONAL, STATEMENT

The district court exercised jurisdiction ove the petitioner's

case pursuant to 18 U.S.C. §3231, which grants the district court

exclusive original jurisdiction over offenses against the laws

of The United States.

The government filed a criminal complaint against the

petitioner on July 28, 2016, charging him with child pornography

offenses. RE 1: Criminal Complaint, PAGEID 1.

The government filed a felony information, with the same

charges, on September 20, 2016. RE 18: Felony Information, PAGEID

30. The petitioner waived the indictment. RE 22: Minutes of

Arraignment, PAGEID 60; RE 25: Waiver of Indictment, PAGEID 63.

The District Court sentenced the petitioner on May 17, 2017.

RE 44: Minutes of Sentencing, PAGEID 194. At sentencing the

defendant qualified for .a mandatory minimum sentence of 15 years

(180 months). 'However the District COurt imposed a sentence

of 22 years (264 months), close to 150% above what the mandatory

minimum sentence called for, the court also filed its judgement

on that day. RE 45: Judgment ID 195-196.

The petitioner filed his timely notice to appeal on May

31, 2017. RE 48: Notice of Appethi,PAGEID 208. The Sixth Circuit

Court of Appeals rendered it's judgment on February 20, 2018.

The petitioner filed a timely motion for extension of time

with this Honorable Court on May 10, 2018. Justice Kagan granted

petitioner's motion for extention of time, up to and including

July 20, 2018.

This Honorable Court has Jurisdiction to hear the instant

petition pursuant to 28 U.S.C. §1254 entitled "Court of Appeals

Certiorari; Certified Questions," 28 U.S.C. 210.1 entitled "Supreme

Court; Time for Appeal of Certiorari," and the Supreme Court

Rules, as well as any other applicable statues and/or rules.

It should be noted that the "Prison Mail Box Rule" requires

not that the instant petition be received by the clerk of the

:.court by July 20, 2018 to be timely, but that the petitioner

'- turn it over to prison authorities for mailing by that date.*

HISTORY OF THE CASE

This initial federal appearance came in the wake of a

federal criminal complaint. The government filed this complaint

on July 28, 2016, charging the petitioner with attempted

production of child pornography (a violation of 18 U.S.C. §2251

(a)(e)) and possession of child pornography (a violation of

18 U.S.C. §2252A(a)(5)(B)). RE. 1: Criminal Complaint, PagelD 1.

On August 2, 2016, the petitioner waived his preliminary and

detention hearings. RE. 11: Minutes of Preliminary and Detention

hearings, PagelD 22. The district court ordered the petitioner

to be detained. RE. 13: Order of Dentention, PagelD 24.

The government filed a felony information on September 20,

2016. RE. 18: Felony Information, PagelD 30. The information

continued the charges filed in the complaint (violations of

18 U.S.C. §2251(a)(e) and 2252A(a)(5)(B)) and added a forfeiture

allegation. RE. 18: Criminal Complaint, PagelD 33. On the same

day (Septemb&r 20, 2016) the government filed a plea agreement

with the petitioner; the government filed an amended plea

agreement on September 28, 2016. RE. 19: Plea Agreement, PagelD

35; RE. 21: Amended Plea Agreement, PagelD 48. The amended plea

agreement clarified a few minor points. See RE. 21: Amended Plea

Agreement, PagelD 52-53.

The district court conducted an an arraignment and changeof-plea hearing on September 28, 2016 (the same day the

government filed the amended plea agreement). RE. 22: Minutes of

Arraignment, PagelD 60; RE. 25: Waiver of Indictment, PagelD 63.

The probation office filed the initial presentence investigation

report on April 7, 2017, and the final report on May 9, 2017.

RE. 31: Initial PSIR, PageiD 72; RE. 33: Final PSIR, PagelD 91.

The petitioner filed his sentencing memorandum on May 9, 2017.

RE. 34: Def. Sent. Memo., PagelD 110. He moved for a downward

variance to the statutory mandatory minimum sentece of 15 years.

RE. 34: Def. Sent. Memo., PagelD 121.

The district court sentence the petitioner on May 17, 2017.

RE. 44: Minutes of Sentencing, PagelD 194. The court imposed a

sentence of 264 months of imprisonment, 5 years supervised

release, restitution of $1,950.03, and special assessments of

$10 1 200.00. RE. 44: Minutes of Sentencing, PagelD 194. The

court filed its judgment on the same day: May 17, 2017. RE. 45:

Judgment, PagelD 195. Mr. Valuer filed his timely notice of

appeal on May 31, 2017. RE. 48: Notice of Appeal, PagelD 208.

The parties briefed the issues and arguments of the

petitioner, and on February 20, 2018 The Sixth Circuit Court of

Appeals affirmed Petitioner's sentence (U.S. v. Vallier 2018 U.S.

APP Lexis 3919)

The petitioner did not seek either a panel rehearing nor an

enbanc Review of the Sixth Circuit Decisions.

The petitioner then prepaired for the instant petition

for certiorari review, but was then preceeding pro-se. As such

he sought a pro-se extension of time from this Honorable Court,

which was granted by Justice Kagan, who extended the time for

submission of his petition upto and including July 20, 2018.

STATEMENT OF FACTS

Mr. Timothy Valuer is thirty-two years old and has

struggled to find his "place" in the world. See RE.-- 33: Final

PSIR, PagelD 92 (giving birthday). The typial stdry of someone

in the federal system not knowing their father plays out here in

reverse: Tim's parents divorced when he was three years old

because of his mother's alcohol, drug addictions and infidelity.

RE. 33: Final PSIR, PagelD 101. During Tim's childhood, his

mother served several years incarcerated in state custody. RE. 33

Final PSIR, PagelD 101. His time with his mother came in short,

limited visits. RE. 33: Final PSIR, PagelD 101.

After high school, Tim attended Grand Valley State, iii

Allendale, Michigan, for three years, but did not complete a

degree program. RE. 33: Final PSIR, PagelD 102. After Grand

Valley, Tim attended ITT Technical Institute for two years.

RE. 33: Final PSIR, PagelD 103. Tim has spent most of his adult

life working as a janitor, first for Forest Hills Public Schools

and then for a private cleaning company. RE. 33: Final PSIR,

PagelD 103. Records from Forest Hills describe Timothy Vallier

as a reliable employee who performed above expectations. RE. 33:

Final PSIR, PagelD 103. These records describe a positive,

contributing citizen with a good attitude, someone who interacted

well with others and promoted a sense of goodwill and cooperation

RE. 33: Final PSIR, PagelD 103.

Along with his normal duties, Tim served as an assistant

rowing coach for Rockford High School. RE. 33: Final PSIR,

PagelD 103. He held this position for over seven yearsunti1

the charges that led to this appeal. RE. 33: Final PSIR, PagelD

103. Tim has no criminal history beyond the convictions at

issue here. RE. 33: Final PSIR, PagelD 100, 107.

In the course of assisting with coaching the Rockford High

School rowing team, two recent high-school graduates had the keys

to the team's vehicle on July 8, 2016. RE. 1-1: Continuation of

Criminal Complaint, PagelD 2. These assistants discovered in the

vehicle a video camera that contained footage of girls from the

team dressing and undressing in the changing room. RE. 1-1:

Continuation of Criminal Complaint, PagelD 2. These assistants

contacted Rockford High School, and school officials then

contacted the police. RE. 1-1: Continuation of Criminal

Complaint, PagelD 2. Police officers visited the school and

found in the changing room a hidden compartment with holes

drilled in it. RE. 1-1: Continuation of Criminal Complaint,

PàgelD 2.

Officers met with Tim and informed him of his Miranda rights

RE. 1-1: Continuation of Criminal Complaint, PagelD 2. Tim

cooperated fully with authorities and fully admitted his

conduct. See RE. 1-1: Continuation of Criminal Complaint, Pagel

2. Waiving his Miranda warning he explained that he had place

d a

camera in the changing area, in the top of the wall, four to

five

times a season over the course of the past several seasons.

RE.

1-i: 'Continuation of Criminal Complaint, PagelD 2. He origi

nally

used an existing hole in the wall and then subsequently added

second hole in the same location. RE. 1-1: Continuation of

Criminal Complaint, PagelD 2. He admitted he saved some of

the

videos, along with other pornography from the internet, in his

home. RE. 1-1: Continuation of Criminal Complaint, PagelD 2.

Further cooperating with authorities Tim consented, in

writing, to a search of his home, computer, and cellular phone

RE. 1-1: Continuation of Criminal Complaint, PagelD 3. Offic

ers

also obtained search warrants for the residence and items.

RE.

1-1: Continuation of Criminal Complaint, PagelD:.3. Initially,

the petitioner face state charges. RE. 1-1: Continuation of

Criminal Complaint, PagelD 3. Federal authorities arrested

Tim

on July 28, 2016, and he had his first appearance in the distr

ict

court on that day. See RE. 4: Minutes of First Appearance,

PagelD 9.

The petitioner's sentence of twenty-two (22) years is

substantively unreasonable in light of petitioner's

§3553(a) factors, I.E. conduct, cooperation, social

history, and where in violation of Rosales-Mireles v.

U.S. 2018 BL 214344 U.S. No. 16-9493 6/18/2018

petitioner did not receive the benefit of U.S.S.G

§2x1.1. Such an adjustment would have resulted in a

guideline range reflective of petitioner's accepted

conduct and the mandatory minimum of 180 months.

Since 2007 when this Honorable Court issued it's opinion in Gall

v. The United States 552 U.S. 38, 51, 128 S.Ct.. 586, 591,

169 L.Ed.2d 445 (2007 a sentenc ing decision of the District Court

has been reviewed "under a differential abuse of discretion

standard" for reasonableness, which has both a procedural and a

substantive component, U.S. v. Castillo 289 Fed Appx 71 (6th Cir.

2008); U.S. v. Skaggs 2018 U.S. App LEXIS 5617 (6th Cir. 20,18));

United States v. Thomas 2018 U.S. AppLEXIS 6078 (6th Cir. 2018

following).

A. Rosales-Mireles v. United States Slip op 16-9493

At bar, the petitioner pled guilty to ATTEMPTED production of

child pornography, (RE 1: Criminal Complaint, PAGEID 1). However,

neither trial counsel nor appellate counsel presented an argument

that the petitioner qualified for a three (3) level reduction in

his offense level based upon the United States Sentencing

Commission Guideline manual (U.S.S.G.) §2X1.1.

U.S.S.G. §2X1.1 allows for the application of a three (3)

level decrease to defendant's criminal, offense score for incomplete

attempted offenses. United States v. Martinez 342 F3d 1203 (10th

Cir. 2003.

"In an introductory chapter the guidelines detail how to

determine the application section for the offense. The guidelines

state "if the offense involves a conspiracy, attempt, or

solicitation, refer to §2x1.1.'" United States v. Martinez (id);

Q.S. v. Quinn 2018 U.S. LEXIS 3289 (6th Cir. 2018). "A defendant

is entitled to a three (3) level reduction if the conspiracy [or

attempt] only partially completes the substantive offense."

On or about February 20, 2018 The United States Court of

Appeals decided petitioner's appeal (No. 17-1642 filed 2/20/2018).

Appellate counsel failed to present any argument associated with

the application of U.S.S.G. §2X1.1.

On or about June 18, 2018 the Supreme Court issued it's

opinion in Rosales-Mireles v. United States (Slip op. 16-9493),

holding that the court of review could review unpreserved

sentencing guideline errors under plain error.

Applying this court's holding, the petitioner reviewed his

guideline calculation and determined that his guideline range also

seemed to be in error, as he was convicted of an attempted charge.

Yet no review or application pursuant to §2X1.1 was made in his

case.

Further, given that Supreme Court decisions are retroactive to

all cases pending on appeal, Griffin v. Kentucky 479 U.S. 314,

107 S.Ct. 708, 93 Led 2d 649 (1987); U.S. v. Conley 2017 U.S. Dist.

198922 (EJi. KY 2017). It appears that the 6th Circuit appellate

court has authority to review petitioner's case under RosalesMireles (Id) for plain error on the sentencing guidelines omission,

should this Honorable Cdurt remand it for such a consideration.

Where petitioner argues that had counsel (appellate or

trial) reviewed the guidelines for the attempted production

under U.S.S.G. §2X1.1, and were the trial court to apply it to

the petitioner at bar; the applicable guideline range and

petitioner's mandatory minimum would have met closely at 180

months (with equal defference to the §3553(a) factors). The

very sentence the petitioner sought.

B. I. Substantively Unreasonable

Had the petitioner's counsels reviewed the guidelines for the

attempt reduction under §2X1.1, and were the trial court to apply

it to the petitioner at bar, the applicable guideline range and

his mandatory minimum would have met closely at 180 months, the

very sentence that the petitioner argued for during sentencing.

After the appellate court determines that the sentencing

decision is procedurally sound, the appellate court then considers

if the sentence is substantively reasonable under the

aforementioned "abuse of discretion standard." Gall (supera),

Castillo (supera), Skaggs (supera), and Thomas (supera).

intended to 'provide

"Substantive Reasonableness Review is

a backstop' against sentences that are shockingly high, shockingly

low or OTHERWISE UNSUPPORTED AS A MATTER OF LAW." United States

V. Dórvee 616 F3d 174, 183 (2nd Cir. 2010), United States v.

Lyons 675 Fed Appx 28 (6th Cir. 2017).

Sentences are also substantially unreasonable where 'the district

court chooses the sentence arbitrarily, grounds the sentence

on IMPERMISSIBLE FACTORS, or unreasonably weighs pertinet factors

United States v. Poole 2018 U.S. App. 2268 (6th Cir. 2018)(emphasis

added) with the court taking into account the totality of the

circumstances, giving due deference to the sentencing judge's

exercise of discretion, and bearing in mind the institutional

advantage that the district courts enjoy United States v. Cavera

550 F3d 180 1 190 (2nd Cir. 2008), United States v. Lyons (supera).

Further, "the essence of substantive reasonableness rests in

the in inquiry as whether a sentence is too long to serve the

purpose of sentencing in the 18 U.S.C. §3553, is whether it is

greater than necessary to serve these purposes... a substantially

reasonable sentence is proportionate to the serious of the circumstances of the offense and offender." United States v. Cox Slip

op. No. 16-2404 at 14 (6th Cir 9/14/17); Skaggs (Supera at 6);

United States v. Dixon 2018 U.S. App LEXIS 3159 at 2 <76th Cir.

2018).

At bar, the sentencing court imposed an excessive sentence,

failed to fully consider a number of sentencing factors, gave

unreasonable weight to the guidelines, considered factors

unsupported as a matter of law, and failed to take into account

the totality of the circumstances.

While the sentencing guidelines are the backstop that the district

courts are required to start with; §3553(a) lists factors that

a district court is mandated to consider in calculating a sentence.

According to United States v. Wilms 495 F3d 277 (6th Cit. 2007)

the length of a sentence [and the circumstances of the case and

ro]

and the defendant] sits among the factors for consideration in

reviewing a sentence's reasonableness (id at 280).

At bar, the petitioner Timothy Valuer's sentence of twentytwo (22) years is greater than necessary to serve §3553(a)

parameters. The district court's sentencing calculations recognized

a sentencing range of Fifteen (15) to Thirty (30) years on count

ne (1) and a mandatory maximum sentence of 20 years on count

two (2) (sentencing transcript PAGEID 244-45). The district

court calculated a total offense level of 43, which matched the

calculation in the final presentence investigation report (RE

51: Sentencing Transcript, PAGEID 246; RE 33: Final PSIR, PAGEID

100, 109). The advisory guideline range thus reached the equivalent

of life in prison; 600 months (50 years). RE 51: Sentencing

Transcript, PAGEID 247; RE 33: Final PSIR, PAGEID 107-109.

The probation office recommended a downward variance to thirty

(30) years, the statutory maximum for count one (1) RE 51: Sentencing

Transcript, PAGEID 246-47; RE 33: Final PSIR, PAGEID 100,103.

The petitioner moved for a downward variance RE 51: Sentencing

Transcript, PAGEID 249, 260. The district court granted this

motion, ultimately imposing a sentence of 264 months (twentytwo (22) years) on count 1, and a concurrent sixty (60) months

on count 2 RE 51: Sentencing Transcript PAGEID 285, 287, 291.

The court also ordered five (5) years supervised release, $1,950.03

restitution to one victim, and'a special assessment of $10,200

RE 44: Minutes of Sentencing, PAGEID 194. This special assessment

arose under 18 U.S.0 §3014(a)(3) which imposed an added assessment

for each count. RE 51: Sentencing Transcript, PAGEID 247-48,

286.

The twenty-two (22) year sentence fails to account for the

unique circumstances of Timothy's case. The petitioner never

distributed any videos. RE 51: Sentencing Transcript, PAGEID

261.

The petitioner also did not upload them to the internet RE

51: Sentencing Transcript, PAGEID 283.

In United States v. Jenkins 854 F3d 181 (2nd Cir. 201.7) the

court, addressing another substantially unreasonable sentece,

determined that Jenkins was LESS CULPABLE than "run of the mill

cases" becuase the material was for personal use rather than

to sell or distribute to others (id at 191).

A significant factor at bar, is the fact that the petitioner

did not commit or attempt to commit (PSIR) any sexual assault/abuse

and presented a very low risk for recidivism. RE 51: Sntencing

Transcript, PAGEID 264.

Further, THE CIRCUITS ARE SPLIT, as to the correct standard

for reviewing whether a visual depiction of a minor constitutes

a lascivious exhibition of the genitals or pubic area 18 U:.S.0

§2251. The First, Third, and Fifth'circuits make an objective

inquiry of the image. "We believe, however that it is a mistake

to look at the actual effect of the photograph on the viewer,

rather than the intended effect... we must therefore, look at

the photograph, rather than the viewer. If we were to conclude

that the photographs were lascivious merely because lithe defendant]

found them sexually arousing, we would be engaging in conclusory

bootstrapping rather than the task at hand

a legal analysis

of the sufficiency of the evidence of lasciviousness'...'congress

did not make production of child pornography turn on whether

the maker àr-:.vieè - ofan image was sexually aroused.'" United

States v. Goodale 831 F Supp 2d 804 2001 U.S. Dist Lexis 136306

(pg 9) (Dist of VT 2011).

However, "the Sixth and Eighth circuits examine the defendants

subjective reactions to the depiction in applying the sixth dost

factor... 'we, like our sister circuits, have adopted a test that

considers whether a visual depiction is intended or designed

to elicit a sexual response in the viewer [the defendant]. The

use of the 'intended' seems to establish that the subjective

intent of the photographer is relevant'... 'These courts evidently

permit the use of extrinsic evidence in making these subjective

inquires'" (Id at 9).

One difference is using a strict subjective standard, as opposed

to an objective standard (or more objective), in the determination

of a substantive offense (as it applies to attempted offense)

is that it lowers the burden of proof for the substantive offense

to the point where a completed subjective offense and an ATTEMPTED

objective offense are identical. As a result, both a proceduraly

unreasonable and a substantively unreasonable sentence develops

where the completed subjective offense:will NOT receive the three

(3) point reduction under U.S.S. §2X1.1; yet an attempted objective

offense will qualify.

An additional difference between the inquires is the difference

between a sentence of twenty-two (22) years and one's freedom.

In United States v. Steen 634 F3d 822 (5th Cir. 2011) the defendant's

conviction was REVERSED for essentially the same conduct perpetrated

by the petitioner at bar. In Steen the defendant would frequent

a tanning salon in Texas. While there Steen would stand on a

chair, hold a camera over the wall and film activity in the rooms

adjacent to him. The court noted that "when a photographer selects

and positions his subjects, it is quite a different matter from

the peeking of a voyeur upon an unaware subject pursuing activities

unrelated to sex... we have defined lascivious exhibition as

a depiction which displays or brings forth to view in order to

attract notice of the genitals or pubic area of children, in

order to excise lustful or sexual stimulation of the viewer.

Here the government's evidence can not meet that standard'" (id

at 828).

In such objective cases (cases involving voyeuristic behaviors)

the depictions may not even qualify as a "lascivious exhibition"

and thus wouldn't warrant/justify conviction under this statue,

much less a 22 year sentence. At a minimum, voyeuristic photography

should be held less culpable than an individual who actively

directs the victims in the poses.

Also, following that same line of logic, a defendant in an

objective "voyeuristic" case would be less culpable than a defendant

who modified, cropped, morphed or otherwise altered an otherwise

innocent image of children to produce pornography (I.E. Cora

v. Bolard 825 F Supp )905, 906 (N.D. Ohio 2011); United States

v. Stewart 729 F3d 517 1 528 (6th CIr. 2013). In both examples

the "producer" took an active role, and objective affirmative

act, to produce a lascivious exhibition" to attract notice to

the genitals and pubic area of children whereas the "voyeur's"

role was passive, filming innocent or otherwise routine behaviors.

(Steen (supera)).

The petitioner at bar, only presents. this argument in context

to culpability for the purposes of sentencing and showing that

the district court's sentence is disp

roportionate to the seriousness

of the circumstances of the offense and

the character of the

offender (Cox supera); Skaggs (supera)

; and Dixon (supera));

and petitioner's conduct as it relates

to the offense of

conviction, does not warrant the twen

ty-two (22) year sentence

handed down by the district court, when

the mandatory minimum

sentence of fifteen (15) years was subs

tantial in of itself and

sufficient considering the §3553(a) fact

ors that supper the petitioner

to wit:

Petitioner's lack of criminal history

Petitioner did not distribute the vide

Petitioner did not commit or attempt os

to commit any

physical abuse of the victims

Petitioner presented low risk for reci

divism

Petitioner did not upload the videos

the internet

Petitioner was a productive member of

soci

job, and had excellent employee evaluati ety, had a

ons

Petitioner had emotional and developm

ental struggles

as a result of his mother's drug abus

e and

incarceration during his youth.

The petitioner has no drug or alcohol

The petitioner has the support of his abuse history

community,

related to his character of being kind

The petitioner has the support of his and hard working

family

The petitioner cooperated with police

to recover

the videos

The petitioner pled guilty to the gove

rnments

information, and waived his right to

a jury to reduce

the impact of his conduct on the vict

ims.

B. II. Sentencing Statistics

Comparing the petitioner's conduct with

-r-eceived to other offenders for simi

the sentence he

lar offenses, a sense of

shock and despair arises in response

by the petitioner at bar. In United

to the sentence received

States v. Studabaker 574

F3d 423, 426, 431 (6th Cir. 2009) the

appellate court affirmed

a sentence of 136 months for a thirty-y

ear old, who was a marine

and communicated with a eleven year old

girl in England, meeting

the girl in a "virtual pets" website.

In that case, the defendant

actually had contact with the victim,

taking the girl to France

and engaging in sex with her there (she

was then 12 years old)

(id at 426). In England, the defendan

t was convicted of child

abduction and inciting gross indecenc

y and receiving a sentence

of four and a half years.

In this country, the Studabaker defendant reveived a sentence

of 137 months for causing the foreign travel of a minor with

the intent to engage in criminal sexual activity and for possessing

and attempting to possess.child pornography; the sentence fell

above the guideline range (Id at 427-28). In addition to the

conduct just described, Studabaker also had an online relationship

with a ten (10) year old girl in Australia, a relationship with

two girls in Michigan through a military/soldier pen pal program,

an attempted relationship with the daughter of a handicapped

woman (with whom he had become involved after his arrest), and

a sexual relationship with his niece (as reported by police).

After h1s arrest the defendant attempted corresponding with the

victim of the offense; yet the defendant received only 13 years,

10 years less than the petitioner at bar.

I In United States v. Brattain 539 F3d 445-45 (6th Cir. 2008)

the appellate court for the sixth circuit vacated a sentence

and remanded, based upon a procedural guideline calculation issues

The court in that case offered dicta that provides insight into

the case at bar.

The appellate court went on to say: "Here, the district

court correctly applied the §3553(a) factors and gave more than

adequate reasoning in support of the defendant's sentence. The

same detailed application of the §3553(a) factors and explicit

reasoning in support of the sentence will hopefully be repeated

on remand" (Id at 449). This language suggests strong support

for the 12-year sentence the defendant received, a sentence a

decade legs than the sentence the petitioner received for an

offense that involved no contact or attempted contact whatsoever.

(It should be noted that Mr. Brattain received the same 12 year

sentence on remand (U.S. v. Brattain No 1:06-CR-293 (w.D. Mich

1/13/09))).

In another case United States v. Richards 695 F.3d 527

(6th Cir. 2012), the defendant went to trial and a jury convicted

him of eleven counts of child pornography and sexual-exploitatio

offenses. The sixth circuit affirmed the defendant's sentence

of sixteen (16) years custody for a defendant who had manufactured

pornography with a fourteen year old boy and a fifteen year old

boy by committing hands on sexually abusive acts with the boys

(id at 531-32). The defendant then advertised and distributed

the pornography for a profit (Id at 550). At the time of his

arrest, the defendant had not demonstrated any remorse for his

offense nor did he accept responsibility, but asserted that he

was the victim who had been tricked into pornography (id).

At sentencing the defendant had an offense level of 48,

a criminal-history of I and an advisory guideline range of life.

Yet the district court sentenced hun to only 16 years.

Richard's conduct was far more abusive and predatory than

anything that the petitioner at bard did, Richard's guideline

numbers were slightly higher than the petitioner's yet he

received a sentence that was almost at the mandatory minimum

mark.

It also bears noting that the defendant in United States

v. Corp, 235 F.3d 325, 327 (6th Cir. 2000) (reversed on other

grounds), received a five-month sentence. That defendant was

able to plead to one count of possessing child pornography and

received the five-month sentence despite the fact that his actions

involved his wife engaging in sex acts with the minor victim.

See Corp, 236 F.3d at 326.

Mr. Valuer understands that courts have criticized comparison

of a defendant's sentence with those imposed in other "singular"

cases and has described these comparison as weak evidence to

show a national sentencing disparity." See Cox, No. 16-2404,

slip op. at 15 (citation omitted).

These comparison cases, however, provide a useful index

for defining "reasonable" and undergird the message of statistics

on the matter. In fiscal year 2016, fewer than 30% of childpornography defendants received a within-guideline sentence.

U.S. Sentencing Commission, 2016 Sourcebook of Federal Sdntencing

Statistics, Table 27: Sentences Relative to the Guideline Range

by Each Primary Offense Category (Fiscal Year 2016), available

at http://www.ussc.gov/sites/default/file/pdf/research-andpublications/annual-reports-and-sourcebooks/2016/Table27 .pdf.

For child-pornography offenders, 41% received downward variances.

Id. Another 28% received other variations of below-guideline

sentences (downward departures and related below-guideline

mechanisms). Id.

Not only do federal judges recognize the child-pornography

guidelines as excessive as demonstrated by almost 70% of offenders

receiving below-guidelines sentences, but the "common" man and

woman on the street see them as excessive as well.

In United States v. Collins, 828 F.3d 386. 387 (6th Cir.

2016), that court reviewed a 5-year sentence for receiving and

distributing child pornography and for possessing child pornography.

The guidelines in that case produced an advisory range of 262

to 327 months. Collins, 828 F.3d at 388. The district judge

polled the trial jury to. gain insight into community sentiment

on sentencing. Id. Jurors recommended sentences between 0 and

60 months, with the mean sentence being 14.5 months and the median

falling at 8 months. Id. With once exception, every juror.

recommended a sentence less than half the mandatory minimum.

Id. The 6th circuit upheld the significantly-below guideline

sentence. Id. at 391.

The sentencing judge from the Collins decision had studied

the issues of whether the guidelines reflect community sentiment

on the issue of just punishment. See Judge James S. Gwin, Juror

Sentiment on Just Punishment: Do the Federal Sentencing Guidelines

Rflect Community Values?, 4 Harvard L. & Policy Rev. 173 (2010).

Based on a study of twenty-two cases, he observed that "the median

juror-recommended sentence was only 19% of the median Guideline

ranges and only 36% fo the bottom of the Guideline ranges." Id.

at 175. His work "suggests that the Guidelines are excessive

and untethered to appropriate punishments as determined by the

tryer's of fact (ie. the juror's actually hearing the case)." Id.

The study did not touch on specifically, child-pornography

manufacturing. See id. at 196-200. It still makes a compelling

argument for finding that the Guidelines produce sentences perceived as excessive, as determined by the citizens sitting as

jurors and even below-guidelines sentences may not be far enough

below the guidelines to be reasonable. See, e.g., id. at 196

(jioting a child-pornography receipt case where the guidelines

were some 6007 (or 6 times) higher than the jury-recommended

MEDIAN sentence). The cases cited above, like Brattain and Richards

help bring these general statistics and sentiments into the

specific realm of sexual-abuse and child-pornography-manufacturing

cases and demonstrate how the sentence at bar is disproportionate

to the circumstances of the instant offense and the character

of the offender where the case at bar falls on the extreme low

end of the gravity spectirum for these cases.

Another telling statistic that supports substantive unreasonableness is that of the average sentence for sex-abuse cases.

In fiscal year 2016, the mean sentence for a fedural sexual abuse

case was 144 months. U.S. Sentencing Commission, 2016 Sourcebook

of Federal Sentencing Statistics, Table 13: Sentence Length in

Each Primary Offense Category (Fiscal Year 2016), available at

http://www.ussc.gov/sites/default/files/pdf/research-andpublications/annual-reports-and-sourcebooks/2016/Table13.pdf.

The median sentence for these cases was 120 months. Id. These

numbers arise from 620 cases. Id. This 144-month mean is 10

years below what Mr. Vallier received, and he committed no handson abuse. Actual abusers, on average, received sentences just

over half the duration of Mr. Valuer's sentence in 2016.

In considering the realm of sexual-abuse cases, Mr. Valuer's

case does not even present an average or "mean" scenario. He

committed no "hands on" abuse, and never attempted to. A sentence

almost double that of the average for sexual-abuse sentences

presents a problem of substantive reasonableness.

RELIEF

Wherefore, the petitioner prays that this Honorable court

grants the petitioner certiorari review and all further briefing

of the issues present herein.

Alternatively, the petitioner prays that this Honorable

court will remand the matter back to the Sixth Circuit Appellate

Court for further consideration in harmony with Rosales-Mireles

v. United States Slip op. 16-9493.

Further, the petitioner prays for any additional relief

that is just and equitable under the law.

Timothy Valuer

Reg. No.: 21221-040

F.C.I. Elkton

P.O. Box: 10

Lisbon, Ohio 44432

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.