United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION OF SENTENCING
PAUL D. BORMAN, District Judge.
On January 27, 2015, Defendant Fluckes filed a Motion for Reconsideration of the Court's Ruling Regarding Sentencing. (Dkt. #47) On March 19, 2015 the Government filed a Response. (Dkt. #53) On April 3, 2015, Defendant filed a Reply. (Dkt. #55)
Eastern District of Michigan Local Rule 7.1(h), Motions for Rehearing or Reconsideration, states that the court will not grant motions "that merely present the same issues ruled upon by the court.... The movant must not only demonstrate a palpable defect by which the court and the parties... have been misled, but also show that correcting the defect will result in a different disposition of the case."
In the instant case, for the reasons that follow, the Court concludes that the issues raised by Defendant's Motion had already been raised and ruled upon by the Court, and further, that the Defendant has not demonstrated a palpable defect by which the Court and the parties have been misled. Accordingly, the Court denies Defendant's Motion for Reconsideration of Sentencing.
1. The Guilty Plea: February 21, 2014
On February 21, 2014, Defendant Daniel Jumar Fluckes pled guilty, pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement [hereinafter Rule 11], to Receipt of Child Pornography, 18 U.S.C. §2252A(a)(2). This count carries a statutory range of incarceration from a five year mandatory minimum up to 20 years, and a fine of up to $250, 000.
The Rule 11 noted in Paragraph 2B, Guideline Range:
The parties disagree on the applicability of the following guideline:
2G2.2(b)(5), relating to pattern of activity involving exploitation. The government recommends that the Court determine that Defendant's guideline range is 262-327 months.... Defendant recommends that the Court determine that his guideline range is 151-188 months.... The Court is not bound by either party's recommendation concerning the guideline range....
Paragraph 7 of the Rule 11, Waiver of Appeal, states, inter alia:
Defendant waives any right he may have to appeal his conviction. If the sentence imposed does not exceed the maximum allowed by Part 3 of this agreement [the top of the sentencing guideline range] Defendant also waives any right he may have to appeal his sentence.
2. The November 17, 2014 Sentencing Hearing
On Monday, November 17, 2014, the Court held a sentencing hearing. The sole Guideline matter for determination was whether to apply the five level Sentencing Guideline enhancement (§2G2.2(b)(5)) for engaging in a pattern of activity involving the sexual abuse or exploitation of a minor (MV1). The Presentence Report had included that enhancement in its Guideline calculations.
The Government contended that the enhancement applied because in addition to receiving child pornography, the Defendant, on multiple occasions, had contact of a sexual nature with (MV1), an eight year old minor male. (Dkt. #48, Tr. Nov. 17, 2014 Sentencing, A.U.S.A. p.9. The only evidence of this conduct was Defendant's statement, at a five hour, post-polygraph examination questioning on January 29, 2013, that he had inappropriately touched MV1 on multiple occasions. At a subsequent video-recorded interview of MV1 conducted by Homeland Security Investigations Victim Witness Specialist Amy Allen, on February 1, 2014, MV1 denied that Defendant had ever touched him inappropriately. (Tr. Nov. 17, 2014, pp. 11-12; Dkt. #46, Tr. Jan. 16, 2015 Continuation of Sentencing p. 14.)
Defense counsel contended that the five point enhancement should not be applied because the alleged touching conduct did not occur:
It was an imaginary allegation that the Defendant felt coerced into making in a post-polygraph interrogation that occurred [pre-plea] on January 29, 2013. Defendant's [former] counsel was not present. She did not consult, did not meet with the Defendant prior to him going in for the polygraph or the interrogation. The Defendant had only five hours of sleep the night before. He was 19... had ...