Appellate Case: 23-8083 Document: 010111003953 Date Filed: 02/22/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 22, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-8083 (D.C. Nos. 2:23-CV-000171-NDF & MICHAEL SHANE LOURCEY 1:22-CR-00045-NDF-1) CLEMENTS, (D. Wyo.)
Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Defendant Michael Clements, a federal prisoner appearing pro se, seeks a
certificate of appealability (COA) in order to appeal the district court’s denial of his
motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. We deny a COA
and dismiss this matter.
I
In March 2022, a federal grand jury indicted Clements on two counts of
distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1),
and one count of possession of child pornography, in violation of 18 U.S.C.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-8083 Document: 010111003953 Date Filed: 02/22/2024 Page: 2
§ 2252A(a)(5)(B) and (b)(2). On June 30, 2022, Clements pleaded guilty to the
possession charge in exchange for the government’s agreement to dismiss the two
distribution charges.
On August 10, 2022, the probation office prepared and submitted to the district
court and the parties a presentence investigation report (PSR). The PSR applied a base
offense level of 18 pursuant to U.S.S.G. § 2G2.2(a)(1). The PSR then applied five
enhancements based on specific offense characteristics: (1) a 2-level enhancement
pursuant to U.S.S.G. § 2G2.2(b)(2) because the material involved a prepubescent minor
or a minor who had not yet attained the age of 12 years; (2) a 2-level enhancement
pursuant to U.S.S.G. § 2G2.2(b)(3)(F) because Clements distributed child pornography to
others; (3) a 4-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(4)(A) and (B) because
Clements possessed images portraying sadistic or masochistic conduct, as well as images
of infants or toddlers; (4) a 2-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(6)
because Clements possessed the prohibited images on a cell phone; and (5) a 5-level
enhancement pursuant to U.S.S.G. § 2G2.2(b)(7)(D) because the offense involved 600 or
more images. The PSR in turn applied a 2-point reduction pursuant to U.S.S.G.
§ 3E1.1(a) because Clements clearly demonstrated acceptance of responsibility for the
offense, and a 1-point reduction pursuant to U.S.S.G. § 3E1.1(b) because Clements
assisted authorities in the investigation or prosecution of his own misconduct by timely
notifying authorities of his intent to enter a plea of guilty. Ultimately, the PSR arrived at
a total offense level of 30. As for Clements’s criminal history, the PSR assigned 3 points
to a March 8, 2017 federal conviction for possession of child pornography. The PSR also
2 Appellate Case: 23-8083 Document: 010111003953 Date Filed: 02/22/2024 Page: 3
added 2 criminal points pursuant to U.S.S.G. § 4A1.1(d) because Clements committed
the offense of conviction while still serving a term of supervised release for the 2017
federal conviction. This resulted in a total criminal history score of 5 and a criminal
history category of III. Together, the total offense level of 30 and the criminal history
category of III resulted in a Guidelines imprisonment range of 121 to 151 months. The
PSR also noted that, pursuant to 18 U.S.C. § 2252A(b)(2), the statutory minimum term of
imprisonment was 10 years.
On September 6, 2022, the district court sentenced Clements to a term of
imprisonment of 120 months, to be followed by a five year term of supervised release.
Final judgment was entered in the case that same day. Clements did not file a direct
appeal.
On September 18, 2023, Clements filed a pro se motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. Clements alleged in his motion that his
trial counsel “was ineffective . . . for failing to know and understand relevant sentencing
factors that would have mitigated [his] sentence.” ROA, Vol. 2 at 5. Specifically,
Clements alleged that his trial counsel should have asked the district court to apply the
safety-valve provision set forth in 18 U.S.C. § 3553(f) and impose a sentence less than
the otherwise applicable statutory minimum sentence of ten years. Clements argued that
“[p]ost first step act the safety valve now reads in the conjunctive,” “mean[ing] that in
order to be exempt from the safety valve a person would need to have more than 4
[criminal history] points and a 3 point offense and a 2 point violent offense.” Id. at 11.
Clements argued that he was thus eligible for safety-valve relief because, at the time of
3 Appellate Case: 23-8083 Document: 010111003953 Date Filed: 02/22/2024 Page: 4
the offense of conviction in this case, his criminal history included only a prior 3-point
offense and a prior 2-point offense that was not violent.
The government filed a brief in opposition to Clements’s § 2255 motion. The
government noted that § 3553(f) “appl[ies] only to a very limited class of enumerated
crimes primarily concerned with controlled substances” and excluding Clements’s
offense of conviction. Id. at 18. Consequently, the government argued that Clements
was ineligible “for a below mandatory minimum sentence pursuant to § 3553(f).” Id.
The government in turn argued that “there [wa]s simply no reasonable probability
[Clements] would have received a sentence under § 3553(f) even had his lawyer made the
attempt.” Id. at 19.
On November 9, 2023, the district court issued an order denying Clements’s
§ 2255 motion. In doing so, the district court “agree[d] with the Government” that
§ 3553(f) was “plainly inapplicable” because Clements’s offense of conviction “was
excluded from th[e] list” of offenses eligible for safety-valve relief under § 3553(f). Id.
at 25. The district court in turn concluded that Clements’s “ineffective assistance claim
[wa]s predicated on an issue without merit[].” Id. at 26.
Judgment was entered in the case on November 9, 2023. The judgment stated, in
relevant part, that Clements was “not entitled to relief pursuant to 28 U.S.C. § 2255” and
that “no [COA] shall issue.” Id. at 27.
Clements filed a notice of appeal on December 1, 2023. He has since filed an
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 23-8083 Document: 010111003953 Date Filed: 02/22/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 22, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-8083 (D.C. Nos. 2:23-CV-000171-NDF & MICHAEL SHANE LOURCEY 1:22-CR-00045-NDF-1) CLEMENTS, (D. Wyo.)
Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________
Defendant Michael Clements, a federal prisoner appearing pro se, seeks a
certificate of appealability (COA) in order to appeal the district court’s denial of his
motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. We deny a COA
and dismiss this matter.
I
In March 2022, a federal grand jury indicted Clements on two counts of
distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1),
and one count of possession of child pornography, in violation of 18 U.S.C.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-8083 Document: 010111003953 Date Filed: 02/22/2024 Page: 2
§ 2252A(a)(5)(B) and (b)(2). On June 30, 2022, Clements pleaded guilty to the
possession charge in exchange for the government’s agreement to dismiss the two
distribution charges.
On August 10, 2022, the probation office prepared and submitted to the district
court and the parties a presentence investigation report (PSR). The PSR applied a base
offense level of 18 pursuant to U.S.S.G. § 2G2.2(a)(1). The PSR then applied five
enhancements based on specific offense characteristics: (1) a 2-level enhancement
pursuant to U.S.S.G. § 2G2.2(b)(2) because the material involved a prepubescent minor
or a minor who had not yet attained the age of 12 years; (2) a 2-level enhancement
pursuant to U.S.S.G. § 2G2.2(b)(3)(F) because Clements distributed child pornography to
others; (3) a 4-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(4)(A) and (B) because
Clements possessed images portraying sadistic or masochistic conduct, as well as images
of infants or toddlers; (4) a 2-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(6)
because Clements possessed the prohibited images on a cell phone; and (5) a 5-level
enhancement pursuant to U.S.S.G. § 2G2.2(b)(7)(D) because the offense involved 600 or
more images. The PSR in turn applied a 2-point reduction pursuant to U.S.S.G.
§ 3E1.1(a) because Clements clearly demonstrated acceptance of responsibility for the
offense, and a 1-point reduction pursuant to U.S.S.G. § 3E1.1(b) because Clements
assisted authorities in the investigation or prosecution of his own misconduct by timely
notifying authorities of his intent to enter a plea of guilty. Ultimately, the PSR arrived at
a total offense level of 30. As for Clements’s criminal history, the PSR assigned 3 points
to a March 8, 2017 federal conviction for possession of child pornography. The PSR also
2 Appellate Case: 23-8083 Document: 010111003953 Date Filed: 02/22/2024 Page: 3
added 2 criminal points pursuant to U.S.S.G. § 4A1.1(d) because Clements committed
the offense of conviction while still serving a term of supervised release for the 2017
federal conviction. This resulted in a total criminal history score of 5 and a criminal
history category of III. Together, the total offense level of 30 and the criminal history
category of III resulted in a Guidelines imprisonment range of 121 to 151 months. The
PSR also noted that, pursuant to 18 U.S.C. § 2252A(b)(2), the statutory minimum term of
imprisonment was 10 years.
On September 6, 2022, the district court sentenced Clements to a term of
imprisonment of 120 months, to be followed by a five year term of supervised release.
Final judgment was entered in the case that same day. Clements did not file a direct
appeal.
On September 18, 2023, Clements filed a pro se motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. Clements alleged in his motion that his
trial counsel “was ineffective . . . for failing to know and understand relevant sentencing
factors that would have mitigated [his] sentence.” ROA, Vol. 2 at 5. Specifically,
Clements alleged that his trial counsel should have asked the district court to apply the
safety-valve provision set forth in 18 U.S.C. § 3553(f) and impose a sentence less than
the otherwise applicable statutory minimum sentence of ten years. Clements argued that
“[p]ost first step act the safety valve now reads in the conjunctive,” “mean[ing] that in
order to be exempt from the safety valve a person would need to have more than 4
[criminal history] points and a 3 point offense and a 2 point violent offense.” Id. at 11.
Clements argued that he was thus eligible for safety-valve relief because, at the time of
3 Appellate Case: 23-8083 Document: 010111003953 Date Filed: 02/22/2024 Page: 4
the offense of conviction in this case, his criminal history included only a prior 3-point
offense and a prior 2-point offense that was not violent.
The government filed a brief in opposition to Clements’s § 2255 motion. The
government noted that § 3553(f) “appl[ies] only to a very limited class of enumerated
crimes primarily concerned with controlled substances” and excluding Clements’s
offense of conviction. Id. at 18. Consequently, the government argued that Clements
was ineligible “for a below mandatory minimum sentence pursuant to § 3553(f).” Id.
The government in turn argued that “there [wa]s simply no reasonable probability
[Clements] would have received a sentence under § 3553(f) even had his lawyer made the
attempt.” Id. at 19.
On November 9, 2023, the district court issued an order denying Clements’s
§ 2255 motion. In doing so, the district court “agree[d] with the Government” that
§ 3553(f) was “plainly inapplicable” because Clements’s offense of conviction “was
excluded from th[e] list” of offenses eligible for safety-valve relief under § 3553(f). Id.
at 25. The district court in turn concluded that Clements’s “ineffective assistance claim
[wa]s predicated on an issue without merit[].” Id. at 26.
Judgment was entered in the case on November 9, 2023. The judgment stated, in
relevant part, that Clements was “not entitled to relief pursuant to 28 U.S.C. § 2255” and
that “no [COA] shall issue.” Id. at 27.
Clements filed a notice of appeal on December 1, 2023. He has since filed an
application for COA with this court.
4 Appellate Case: 23-8083 Document: 010111003953 Date Filed: 02/22/2024 Page: 5
II
A COA is a jurisdictional prerequisite for appellate review of the denial of a
§ 2255 motion. United States v. Parker, 720 F.3d 781, 785 (10th Cir. 2013). To obtain a
COA, a defendant must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). This standard requires a defendant to “demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
As we have noted, Clements argued in his § 2255 motion that his trial counsel was
ineffective for failing to recognize and argue that Clements was eligible for safety-valve
relief under § 3553(f). To prevail on this claim, Clements must first show that his trial
counsel’s performance was deficient, meaning that it fell “below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). If Clements can
make this showing, he then must demonstrate that his trial counsel’s deficient
performance prejudiced him, which requires him to show “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
Clements cannot make the first of these showings because, as the district court
correctly noted, Clements is ineligible for safety-valve relief under § 3553(f). Section
3553(f), by its express terms, applies to a limited range of controlled substance offenses.
It does not, as the district court noted, apply to child pornography offenses, such as
Clements’s offense of conviction. Thus, we conclude that the district court correctly
5 Appellate Case: 23-8083 Document: 010111003953 Date Filed: 02/22/2024 Page: 6
rejected Clements’s ineffective assistance of counsel claim, and we in turn conclude that
reasonable jurists could not disagree with the district court’s resolution of that claim.
III
For the reasons stated above, we DENY Clements’s application for COA and
dismiss this matter.
Entered for the Court
Mary Beck Briscoe Circuit Judge