UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 18-26 (TJK) RODNEY DAVIS,

Defendant.

MEMORANDUM ORDER

Defendant Rodney Davis pleaded guilty to one count of Travel with Intent to Engage in

Illicit Sexual Conduct, in violation of

(b), and was sentenced. Now proceeding

pro se, Davis moves to vacate, set aside, or correct that sentence under

, based

largely on ineffective assistance of counsel in connection with the plea and sentencing. For the

reasons explained below, the Court will deny the motion.

I. Background

In May 2018, Davis pleaded guilty to one count of Travel with Intent to Engage in Illicit

Sexual Conduct, in violation

(b). ECF Nos. 14, 15. Davis admitted to traveling

across state lines to engage in a sexual act with what turned out to be a fictious eight-year-old girl,

after engaging in conversations about doing so with an undercover police officer. ECF No. 15. In

a written plea agreement, Davis agreed to a standard waiver of appeal rights, as well as to “waive[]

any right to challenge the conviction entered or sentence imposed . . . in any collateral attack,

including . . . a motion brought under

. . . except to the extent such a motion is

based on newly discovered evidence or on a claim that your client received ineffective assistance

of counsel.” ECF No. 14 at 6–7. In August 2019, the Court sentenced Davis to 108 months of

incarceration followed by ten years of supervised release. ECF No. 29. That sentence of incar- ceration represented the bottom of the applicable sentencing guidelines range, after the Court ap-

plied a four-point “minor victim” specific offense characteristic because “the victim had not at-

tained the age of twelve years.” U.S.S.G. § 2A3.1(b)(2)(A). The parties agreed to that enhance-

ment both in the plea agreement, at the change-of-plea hearing, and at sentencing. See ECF No.

14 at 2; ECF No. 37 at 9–10.

Davis appealed, alleging ineffective assistance of counsel, and in July 2022, the Circuit

affirmed both the conviction and sentence. United States v. Davis,

(D.C. Cir. 2022).

Specifically, it upheld the Court’s application of the minor victim enhancement, holding that it

applied even though the victim was fictitious, and thus counsel’s failure to raise what would have

been a meritless challenge was not constitutionally deficient.

at 77–80. The Circuit also found

that Davis’s appeal waiver was made knowingly, intelligently, and voluntarily, and so it did not

reach the rest of Davis’s claims that the Court made substantive and procedural errors during sen-

tencing.

at 80–81. 1

A year later, Davis, proceeding pro se, moved to vacate, set aside, or correct the sentence

under

, again largely relying on claims of ineffective assistance of counsel. ECF

No. 48. The Government opposes. ECF No. 52. Davis also moved to compel disclosure of all

records related to the case under the control of the District of Columbia Federal Public Defender’s

Office, ECF No. 55, as well as to appoint counsel, ECF No. 56.

1 These claims were that the Court erred at sentencing “by failing to announce the standard conditions of Davis’ supervised release; inadequately factoring Davis’ gender identity into the sentence; and rejecting evidence of sentencing disparities between Davis and similarly situated defendants.” Davis,

.

2 II. Legal Standard

A motion under § 2255 allows federal prisoners to collaterally attack an otherwise final

sentence if the sentence was (1) “imposed in violation of the Constitution or laws of the United

States,” (2) “the court was without jurisdiction to impose [the] sentence,” (3) “the sentence was in

excess of the maximum authorized by law,” or (4) the sentence “is otherwise subject to collateral

attack.”

(a). “The petitioner bears the burden of proof under § 2255 and must

demonstrate her right to relief by a preponderance of the evidence.” United States v. Ashton,

(D.D.C. 2013); United States v. Simpson,

(D.C. Cir. 1973).

“Relief under § 2255 is an extraordinary remedy in light of society’s legitimate interest in the

finality of judgments.” United States v. Moore,

(D.D.C. 2014). As a

result, it is typically only granted if “the challenged sentence resulted from ‘a fundamental defect

which inherently results in a complete miscarriage of justice,’ or ‘an omission inconsistent with

the rudimentary demands of fair procedure.’” United States v. Pollard,

(D.C.

Cir. 1992) (citation omitted).

Thus, a motion to vacate “under § 2255 is neither a second chance at appeal nor is it a

substitute for direct appeal.” Ashton,

. That is, a defendant “cannot raise

collaterally any issue litigated and adjudicated on direct review, absent exceptional circum-

stances.” Moore,

; see also Ashton,

. Similarly, once

“a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim

may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prej-

udice’” or “actual innocence.” Bousley v. United States,

(1998). Cause for

default exists where “some ‘objective factor external to the defense’ impeded efforts to raise an

issue in trial or on direct appeal.” Moore,

(quoting Murray v. Carrier,

(1986)). And to show “actual prejudice,” a petitioner “must at least demonstrate

3 that ‘there is a reasonable probability that, but for [the errors], the result of the proceeding would

have been different.’” United States v. Pettigrew,

(D.C. Cir. 2003) (citation

omitted). But “[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255

motion, he need not show ‘cause and prejudice’ for not having raised such claims on direct appeal,

as these claims may properly be raised for the first time in a § 2255 motion.” United States v.

Cook,

(D.D.C. 2000), aff’d,

(D.C. Cir. 2001) (citation omit-

ted).

III. Analysis

Because Davis proceeds pro se, the Court construes this motion expansively, to challenge

the lawfulness of Davis’s plea, waiver of collateral attack rights, and sentence, as well as to assert

related claims of ineffective assistance of counsel, where appropriate. A defendant’s waiver of his

appeal or collateral attack rights must be “knowing, intelligent, and voluntary.” United States v.

Guillen,

(D.C. Cir. 2009). And even “where a defendant waives the right to

appeal or collaterally attack his conviction as part of his plea agreement, he does not waive the

right to challenge that waiver itself on the grounds that it was not knowing and voluntary.” United

States v. Safarini, No. 91-cr-504-3 (EGS),

, at *11 (D.D.C. Nov. 1, 2021); see

also Garza v. Ohio,

(2019). To claim ineffective assistance of counsel, a peti-

tioner “must show that counsel’s representation fell below an objective standard of reasonable-

ness” and that “deficient performance prejudiced the defense.” Strickland v. Washington,

(1984). Courts reviewing such claims must be “highly deferential” to counsel’s

performance and “judge the reasonableness of counsel’s challenged conduct on the facts of the

4 particular case, viewed as of the time of counsel’s conduct.”

at 689–90. As explained below,

none of Davis’s four claims provides grounds for relief under § 2255. 2

A. The “Minor Victim” Specific Offense Characteristic

Davis contends that counsel was ineffective because the Court’s application of the four-

level “minor victim” specific offense characteristic under U.S.S.G. § 2A3.1(b)(2)(A)—relevant

when “the victim had not attained the age of twelve years”—resulted in impermissible double

counting under the Sentencing Guidelines. Davis so argues because the base offense level, set by

cross-reference from U.S.S.G. § 2G1.3(c)(3), also accounts for a victim under 12 years old’s status.

ECF No. 48 at 13–14. Section 2G1.3(c)(3) provides that “[i]f the offense involved interstate travel

with intent to engage in a sexual act with a minor who had not attained the age of 12 years . . .

§ 2A3.1 shall apply, regardless of the ‘consent’ of the minor.” Section 2A3.1, in turn, sets a higher

base offense level of 30, which otherwise applies to sexual abuse proscribed by

and 2241(a) and (b). Davis says counsel was constitutionally ineffective for failing to make this

double counting argument at sentencing or on appeal. 3

2 There is no constitutional right to counsel in § 2255 proceedings. See Brown v. Cameron,

, 836 n.1 (D.C. Cir. 1965). The Criminal Justice Act does, however, provide for representation “for any financially eligible person who . . . is seeking relief under section . . . 2225 of title 28” if “the interests of justice so require.” 18 U.S.C. § 3006A(a)(2). In applying that standard, courts consider: “1) the petitioner’s likelihood of success on the merits, 2) the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved, and 3) the factual complexity of the case and whether the petitioner has the ability to investigate undeveloped facts.” United States v. King,

(D.D.C. 2013). Here, Davis’s claims clearly lack merit, and resolving them does not require further factual development. For those reasons, and because Davis explained the arguments well and with legal citations, the Court finds that the interests of justice do not require appointment of counsel and will deny Davis’s motion seeking that relief. 3 Davis also raises the specter of whether double counting violates the Fifth Amendment’s Double Jeopardy Clause. ECF No. 48 at 13–14. But “[t]he concept of double counting is strictly a matter of guidelines interpretation” and “raises no constitutional concerns.” United States v. Vizcarra,

(7th Cir. 2012). And to the extent this argument depends on the Court

5 “Generally, impermissible double counting may occur when identical conduct warrants

two enhancements under the Guidelines.” United States v. Hochschild,

(6th

Cir. 2006); see also United States v. Reese,

(9th Cir. 1993) (“[I]mpermissible

double counting . . . occurs where one part of the Guidelines is applied to increase a defendant’s

punishment on account of a kind of harm that has already been fully accounted for by the applica-

tion of another part of the Guidelines.”). “In practical terms, this means that impermissible double

counting is to be found where one Guidelines provision ‘is akin to a “lesser included offense” of

another,’ yet both are applied.” Reese,

(citation omitted). But “impermissible double

counting does not occur if the enhancement does not duplicate an essential element of the offense.”

United States v. Valdez-Torres,

(D.C. Cir. 1997).

Several circuits have addressed whether the exact scenario here amounts to impermissible

double counting under the Guidelines. Without exception, they have rejected Davis’s argument.

See, e.g., Hochschild,

; United States v. Wimberly,

(7th Cir. 1995);

United States v. Balfany,

(8th Cir. 1992); United States v. Speelman,

, 1233–34 (9th Cir. 2005); United States v. Jackson,

, 950–51 (10th Cir. 2023)

(discussing United States v. Ransom,

, 776–79 (10th Cir. 1991)). These courts have

explained that “[i]t is not an element of [the underlying offense] that the victim be under the age

of twelve.” Speelman,

. And “it is possible to be sentenced under § 2A3.1 without

having victimized a child under the age of twelve.” Id.; see also Jackson, 82 F.4th at 951 (“[T]he

base offense level of § 2A3.1 represented sexual abuse proscribed by § 2242, which does not nec-

essarily involve a minor victim.”). Thus, “[t]he [Sentencing] Commission may have determined

having improperly applied the Guidelines, it also fails, because as explained below, the Court made no mistake in applying them.

6 that the base offense level, while representing a lowest ‘common denominator’ for the offenses

grouped under U.S.S.G. § 2A3.1, does not adequately punish a defendant for his conduct when the

victim is so young.” Jackson, 82 F.4th at 951 (quoting Ransom,

). For these

reasons, the application to Davis’s offense of the four-level “minor victim” specific offense char-

acteristic under U.S.S.G. § 2A3.1(b)(2)(A) is not impermissible double counting.

In arguing otherwise, Davis relies on out-of-circuit precedent holding that “[i]mpermissible

double counting occurs when the same conduct justifies two upward adjustments under the Sen-

tencing Guidelines or the same underlying facts that establish an element of the base offense are

used to justify an upward enhancement.” United States v. Bell,

(7th Cir. 2010)

(concluding that the application of a two-level enhancement for violating a court order was imper-

missible double counting). But Bell was overruled just two years later by United States v. Vizcarra.

(7th Cir. 2012) (“Despite what we have said or implied—most recently in

United States v. Bell . . .—. . . the default rule is that the same conduct may determine the base

offense level and also trigger the cumulative application of enhancements and adjustments unless

a specific guideline instructs otherwise.”). Moreover, authority in this Circuit suggests that an

enhancement—in that case, for use of a dangerous weapon—that “does not duplicate an essential

element of [the offense] but instead is properly used to distinguish among sentences imposed pur-

suant to the section for different kinds of [offenses],” is not impermissible double counting. Val-

dez-Torres,

. So too here.

Of course, “counsel does not perform deficiently by declining to pursue a losing argument.”

United States v. Watson,

(D.C. Cir. 2013). Thus, Davis has not shown that

counsel’s failure to make this argument at sentencing or on appeal fell below an objective standard

of reasonableness, or that such performance resulted in prejudice.

7 B. Enforceability of Davis’s Plea Agreement

Davis argues that the plea bargain was invalid and unenforceable because there was no

“offer and acceptance.” ECF No. 48 at 17–18. The Government extended the plea offer on March

19, 2018, and it was set to “expire[] on March 30, 2018.” ECF No. 14 at 1. But the parties did not

sign the agreement until May 17, 2018, the day of Davis’s change-of-plea hearing. See id. at 11.

Thus, Davis says, the offer had lapsed, and “[w]ithout acceptance within the term stipulated, the

contract is void.” ECF No. 48 at 18. And Davis argues that “no invalid contract could ever be

intelligently entered into.” ECF No. 54 at 4.

Davis did not make this argument on appeal and so must show cause and prejudice to

excuse a procedural default. But Davis makes no effort to do either, so it is defaulted. 4 And it

fares no better even if construed as one for ineffective assistance of counsel. True, “a plea agree-

ment is a form of contract.” United States v. Pollard,

(D.C. Cir. 1992). And

“[a]n offeree’s power of acceptance is terminated at the time specified in the offer . . . .” Restate-

ment (Second) of Contracts, § 41(1). So Davis could not have unilaterally accepted a lapsed offer.

But the Government had the power to extend the time in which a plea agreement could be ac-

cepted—and that is what happened when both parties signed the plea agreement in May. There is

thus no reason to doubt that the plea agreement is enforceable. And none of this suggests that

counsel’s conduct—advising Davis to sign a plea agreement which by its terms had lapsed but was

renewed by the Government—was constitutionally ineffective.

4 To be sure, “ineffective assistance of counsel may provide cause and prejudice for the procedural default.” Winchester v. United States,

(D.D.C. 2007) (citing Murray, 477 U.S. at 488–89). But as described below, Davis makes no plausible argument that counsel was ineffective in connection with the plea agreement’s enforceability.

8 C. Davis’s Plea Agreement and Collateral Attack Waiver

Davis contends that the plea agreement was not entered into knowingly, intelligently, and

voluntarily, because “[w]hile the collateral attack waiver was present in the plea agreement, it was

never mentioned in the plea colloquy, and indeed Ms. Davis was unaware of the collateral review

waiver” until months later. ECF No. 48 at 15. Again, Davis fails to show cause to excuse the

procedural default of not raising this claim on appeal or prejudice for not doing so. Indeed, Davis

made an almost identical argument on direct appeal—that the Court’s failure to discuss the right

to appeal the sentence during the plea colloquy invalidated the appeal waiver. See Davis,

. Thus, Davis cannot show that some “objective factor external to the defense” impeded any

effort to raise this issue on appeal. So this argument is procedurally defaulted. 5

Interpreting this as an ineffective assistance of counsel argument does not help Davis. In-

deed, the Circuit rejected Davis’s similar argument on appeal, holding that Davis had not shown

the appeal waiver was not, in fact, knowing, intelligent, or voluntary, because “nothing in the rec-

ord suggest[ed] Davis misunderstood or lacked awareness of the appeal waiver’s terms.” Davis,

45 F.4th at 80–81. Davis now makes the same argument about the collateral attack waiver, but it

meets the same fate. As the Circuit reasoned, “Davis signed the agreement, averring to have ‘read

every page’ and ‘fully underst[ood] . . . and agree[d] . . . without reservation.’”

. And at

the change-of-plea hearing, the Court asked if Davis had “read [the agreement] carefully,” “un-

derst[ood] it,” and had “enough time to talk to [defense counsel] about it,” and Davis responded

5 As noted, “ineffective assistance of counsel may provide cause and prejudice for the pro- cedural default.” Winchester,

(citing Murray, 477 U.S. at 488–89). But “counsel does not perform deficiently by declining to pursue a losing argument.” Watson,

.

9 “yes” to all these questions.

Davis has presented no other reason, beyond generalized dissat-

isfaction with the agreement’s terms following sentencing, to suggest that the collateral attack

waiver was not knowing, intelligent, or voluntary, or that any advice offered to Davis by counsel

to sign that agreement was constitutionally ineffective. 6

D. The Length of Davis’s Sentence of Incarceration

Finally, Davis says that the Court erred in imposing a “greater than necessary” sentence.

ECF No. 48 at 15–17. This claim is flatly foreclosed by the plea agreement’s appeal waiver; it has

no connection to any possible claim of ineffective assistance of counsel. Davis also concedes this

issue was “argued on appeal,” at the same time insisting that because “the appellate court declined

to hear § 3553(a) arguments on their merits on appeal, these arguments should at a minimum be

considered in a supplementary manner.” ECF No. 48 at 17. But the Circuit did not consider these

arguments because they were foreclosed by the appeal waiver, and on that score nothing has

changed. On top of all that, Davis “cannot raise collaterally any issue litigated and adjudicated on

direct review, absent exceptional circumstances.” Moore,

. Davis has not

tried to make that showing. 7

6 Davis criticizes counsel’s failure to get certain concessions from the Government as part of the plea agreement. ECF No. 48 at 15–16. But Davis received a two-level reduction for ac- ceptance of responsibility under U.S.S.G. § 3E1.1(a), as well as another one-level reduction under § 3E1.1(b), because the authorities were timely notified of Davis’s intent to enter a guilty plea. See ECF No. 23 at 7. Davis makes no other showing to suggest the plea was not knowing, intelli- gent, or voluntary. Finally, Davis was specifically warned by the Court at the change-of-plea hearing that “if the sentence in this case ends up being more severe than [Davis] expected, [Davis] will still be bound by [the] plea and will have no right to withdraw it.” ECF No. 36 at 19. 7 Because “[a] judge need not conduct an evidentiary hearing before denying a petition for relief under § 2255 when ‘the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief,’” the Court finds that an evidentiary hearing is unnecessary. See United States v. Morrison,

(D.C. Cir. 1996) (quoting

). For the same reason, the Court will deny Davis’s motion to compel.

10 IV. Conclusion and Order

For all the above reasons, it is hereby ORDERED that Davis’s Motion to Vacate, ECF

No. 48; Motion to Compel Discovery, ECF No. 55; and Motion to Appoint Counsel, ECF No. 56,

are DENIED.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: September 20, 2024

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