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Busching v. United States

United States District Court, D. Maryland

July 24, 2018

ROBERT MICHAEL BUSCHING, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. TDC-15-0107

          MEMORANDUM OPINION

          THEODORE D. CHUANG JUDGE

         Petitioner Robert Michael Busching has filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. In 2015, Busching pleaded guilty to possession of and access with intent to view child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). In his Motion, Busching argues that he received ineffective assistance of counsel because his trial counsel failed to advise him that his diagnosed Asperger's Syndrome could serve as a defense to the intent element of this crime. Having reviewed the submitted materials, the Court finds that no hearing is necessary. See Rule 8(a), Rules Governing Section 2255 Proceedings for the United States District Courts; D. Md. Local R. 105.6. For the reasons set forth below, the Motion is DENIED.

         BACKGROUND

         On March 16, 2015, Busching was charged with three counts of violating federal laws against child pornography. The Indictment alleged that on three separate occasions, he “did knowingly possess and knowingly access with intent to view” child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Indictment at 1, 3-4, ECF No. 1. The Indictment arose out of Busching's use of his home computer to access multiple Dropbox accounts that stored child pornography. Busching also created two other Dropbox accounts to which he added videos of child pornography and then shared the links to those accounts with people whom he had met on a website named Omegle, the same website on which Busching had obtained access to the other Dropbox accounts. In total, Busching admitted to accessing Dropbox accounts that contained more than 600 images of child pornography.

         This was not Busching's first offense. He was previously convicted, in March 2011, of Distribution of Child Pornography, in violation of Md. Code Ann., Crim. Law § 11-207(a)(4), in the Circuit Court for Montgomery County, Maryland. For that offense, he was sentenced to seven years of imprisonment, with all but five days suspended, to be followed by five years of supervised probation. Accordingly, the Indictment in the present case charged Busching with having committed the charged offenses after a prior conviction for a child pornography offense, with the result that he was subjected to 10-year mandatory minimum sentence on all three counts. See 18 U.S.C. § 2252A(b)(2) (2012).

         In 2011, Busching was diagnosed with Asperger's Syndrome, now known as a form of Autism Spectrum Disorder. According to Dr. Daniel Murrie, a forensic psychologist who submitted an expert report on behalf of Busching relating to the sentencing hearing, the result of Busching's autism symptoms is that he “lacks the skills on which friendships, romantic relationship, and even casual relationships rely.” Murrie Report at 12, ECF No. 33-1. Therefore, Busching “has developed no age-appropriate friendships or romantic relationships” and “continues to function, in many respects, at a level much more consistent with a young adolescent than a 25-year-old adult.” Id. Busching never lived apart from his mother until his incarceration, he talks aloud to himself, and his childhood pastimes of collecting magic tricks, toys, and movie and game show memorabilia have continued into adulthood. In a letter to the Court, Busching's mother stated that her son is socially awkward, has never been able to form friendships with peers, and engages in inappropriate behavior for his age. For example, Busching's bedroom is cluttered with toys and stuffed animals, and Busching still plays with these items. Donna Troisi, a Licensed Clinical Social Worker who consulted with Busching and his mother prior to sentencing, stated in a letter to the Court that Busching had only recently come to understand that viewing child pornography is not just illegal but morally wrong.

         On September 11, 2015, Busching entered into a plea agreement with the Government, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), in which the parties agreed that Busching would plead guilty to Count One of the Indictment, the Government would dismiss Counts Two and Three, and the parties would jointly request that the Court impose the mandatory minimum sentence of 120 months, to run concurrently with the sentence imposed by the Circuit Court for Montgomery County for Busching's probation violation. If the Court did not agree with the recommended sentence, Busching would be entitled to withdraw his guilty plea.

         As for the application of the United States Sentencing Guidelines, the parties agreed that the base offense level was 18 and that the following upward enhancements would apply: a two-level increase pursuant to U.S.S.G. § 2G2.2(b)(2), because the material involved prepubescent minors; a two-level increase pursuant to U.S.S.G. § 2G2.2(b)(3)(F), because the offense involved distribution; a two-level increase pursuant to U.S.S.G. § 2G2.2(b)(6), because the offense involved the use of a computer; and a five-level increase pursuant to U.S.S.G. § 2G2.2(b)(7)(D), because the offense involved 600 or more images. The Government did not oppose a three-level reduction for acceptance of responsibility, for a final offense level of 26.

         At a September 29, 2015 hearing, Busching pleaded guilty to one count of “possession of and access with intent to view child pornography.” Hearing Tr. at 28, ECF No. 48. By accepting the Government's Statement of Facts, Busching acknowledged that he had “used an internet based cloud storage system, namely [Dropbox, ] to possess and access with intent to view child pornography.” Hearing Tr. at 22, ECF No. 48. Busching further admitted that, in addition to accessing the Dropbox accounts of others that contained child pornography, Busching created two Dropbox accounts, added child pornography videos to those accounts, and then shared links to those accounts with other individuals.

         At the sentencing hearing on January 19, 2016, defense counsel argued that the Court should sentence Busching to no more than the mandatory minimum sentence because Busching's autism causes him to continue to engage in childlike behavior, which makes it unlikely that Busching is a danger to children. In support, defense counsel provided the expert report of Dr. Murrie, who described Busching's symptoms and likelihood of re-offense, and letters from friends and family who described Busching's good character and gentle nature. At the close of the hearing, the Court accepted the plea agreement recommendation and imposed the mandatory minimum sentence of 120 months, to run concurrently to Busching's state sentence.

         On February 3, 2017, Busching filed the present Motion in which he alleges ineffective assistance of counsel. The Court ordered the Government to respond to the Motion. The matter is now fully briefed and ripe for decision.

         DISCUSSION

         In his Motion, Busching argues that (1) he was charged with a specific intent crime, which makes evidence of his mental condition relevant to the mens rea that the Government would have had to prove beyond a reasonable doubt at trial; (2) his trial counsel should have told him that Asperger's Syndrome can serve as a defense to specific intent crimes; and (3) had he been advised of this defense, he would have proceeded to trial rather than plead guilty.

         I. ...


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