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United States v. Tegeler

United States District Court, D. Nebraska

April 16, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL M. TEGELER, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge

         This 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.

         A § 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 906.

         BACKGROUND

         The 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; filing 34.

         The 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.

         The PSR 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 explained that

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.

         The 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 ยง 2255 ...


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