United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing
80) filed by the defendant, Paul Tegeler. The
Court's initial review is governed by Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United
States District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir.
1995); see also Sinisterra, 600 F.3d at
defendant was charged with one count of attempting to entice
a 13-year-old girl to travel in interstate commerce to engage
in unlawful sexual activity. Filing 1; see 18 U.S.C.
§ 2422(a). The defendant had placed a Craigslist
advertisement soliciting a "sex slave." Filing
33 at 12. An undercover law enforcement officer
contacted him using the persona of a 13-year-old girl.
Filing 33 at 12. The defendant asked the
"girl" to send him nude images and to meet him for
sex. Filing 33 at 12-13. He sent her a bus ticket,
and was taken into custody at the bus stop where he was
waiting for her. Filing 33 at 13. The defendant
admitted to that conduct and pled guilty to the charge.
Filing 33 at 14; see filing 28;
presentence report (PSR) identified another incident similar
to the charged offense, discovered during forensic
examination of evidence seized from the defendant. Filing
55 at 6. Law enforcement found that the defendant had
placed 146 Craigslist advertisements resembling the one that
began the investigation. Filing 55 at 6-7. Police
interviewed a 17-year-old Kansas girl, who reported having
contacted the defendant based on another Craigslist
advertisement he had posted; she wanted to run away from home
and she and the defendant planned for him to drive to her
home in Kansas to pick her up. Filing 55 at 6. They
communicated about sexual activity and the defendant's
"desire to have a daddy/daughter, sex slave type sexual
relationship with the girl when she came to live with
him." Filing 55 at 6. She also sent him
sexually explicit photographs. Filing 55 at 6. But
she stopped responding to his emails, and they never actually
met. Filing 55 at 6.
included the incident with the Kansas girl as relevant
conduct in determining the defendant's guideline
sentencing range. Filing 55 at 7-8. Based on a total
offense level 31 and a criminal history category I, the PSR
found a guideline imprisonment range of 108 to 135 months.
Filing 55 at 16; filing 56. The defendant objected
to the PSR, contending that the wrong guideline-U.S.S.G.
§ 2G1.3-was applied to determine the base offense level,
and that the Kansas incident was not relevant conduct to the
offense of conviction. Filing 39; filing
41. The Court overruled the objection at sentencing.
Filing 70 at 13. But the Court also said that the
sentence would be based on the 18 U.S.C. § 3553(a)
factors "regardless of guidelines or regardless of the
cross-reference." Filing 70 at 12. The Court
I have considered your prior history, your service, your
health issues . . . but I've also considered that society
needs protection from this type of predatory behavior. And,
based on the nature of this offense, there will be a
significant punishment reflecting respect for the law. I am
varying somewhat from the guidelines, if you will, but, as I
noted earlier, this sentence is based on § 3553 factors
and would be the sentence regardless of guidelines and
regardless of how I ruled on the § 2G1.3 objection,
quite frankly, either way.
Filing 70 at 25. The Court varied downward from the
guideline range and imposed a sentence of 84 months'
imprisonment. Filing 57; filing 58 at 3.
defendant appealed to the U.S. Court of Appeals for the
Eighth Circuit, which affirmed his conviction and sentence.
United States v. Tegeler, 650 F. App'x 903 (8th
Cir.), cert. denied, 137 S.Ct. 486 (2016). The
defendant argued that the Court misapplied the guidelines, as
set forth above, but the Court of Appeals found that any
error was harmless, because
[w]hen the district court makes a clear record that the judge
intended to impose the same sentence, and where the court
takes into account the potential impact of the specific error
alleged, it is appropriate to treat the alleged error as
harmless. We have such a clear record here. We thus conclude
that, even if the district court improperly applied the
cross-reference to determine [the defendant's] base
offense level (a question we do not decide today), any such
error was harmless.
Id. at 906 (cleaned up). The defendant petitioned
the Supreme Court for certiorari, but that petition was
denied on November 14, 2016. Filing 79. The
defendant filed his present § 2255 ...