ORDER DENYING IN PART MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

GREG KAYS, District Judge.

Movant John R. Fortenberry, Jr. ("Fortenberry") pled guilty to use of an interstate facility to attempt to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). He was sentenced to a 324-month term of imprisonment. Now before the Court is Fortenberry's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1), Motion to Amend (Doc. 11), Second Motion to Amend (Doc. 24), Motion for an Evidentiary Hearing (Doc. 29), Third Motion to Amend (Doc. 41), and Motion for Copies (Doc. 45). For the reasons set forth below, Fortenberry's motions are DENIED IN PART. The Court holds Grounds Two, Three, Four, and Six are meritless. Grounds One and Five will be addressed at the evidentiary hearing on November 22, 2016.

Background

On February 20, 2013, Fortenberry was charged with use of an interstate facility to attempt to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b) (Crim. Doc. 1). On March 3, 2013, a superseding indictment charged Fortenberry with use of a facility of interstate commerce to attempt to coerce an individual under the age of eighteen to engage in sexual activity, in violation of 18 U.S.C. § 2422(b); transfer of obscene matter to an individual under the age of sixteen, in violation of 18 U.S.C. § 1470; and committing the former offenses at times when he was required to register as a sex offender, in violation of 18 U.S.C. § 2260A (Crim. Doc. 2). On November 26, 2013, Fortenberry pled guilty to Count I of the indictment, pursuant to a written plea agreement (Crim. Docs. 23, 24).

The plea agreement sets out the following factual basis for the plea. In January of 2013, an acquaintance of Fortenberry's contacted the Federal Bureau of Investigation ("FBI") in Memphis, Tennessee, to report that Fortenberry was in contact with a 12-year-old girl ("Jane") residing in Kansas City, Missouri, and was planning to travel to Kansas City to meet Jane in person. FBI agents located and interviewed Jane, who admitted to exchanging nude photographs and videos with Fortenberry over the Internet. After obtaining Jane's cell phone, FBI agents discovered approximately 1,200 text messages between her and Fortenberry, a video of Fortenberry masturbating, and nude photographs of Jane. Text message conversations indicated that Fortenberry intended to travel to Kansas City to meet and have sex with Jane. In an interview, Jane stated that she and Fortenberry would communicate over the Internet and phone, Fortenberry had plans to visit Kansas City to have sex with her, and she knew that Fortenberry was a registered sex offender. Plea Agrmnt. at 4.

The plea agreement also contains an express waiver of appellate and post-conviction rights. Id. ¶ 15. This waiver states:

Id.

The United States Probation Office then prepared a presentence investigation report ("PSR") (Crim. Doc. 25). The PSR reported that, based on a total offense level of thirty-seven and a criminal history category of V, Fortenberry's Guidelines range was 324 to 405 months (Id. ¶ 55). The Court agreed with this calculation and subsequently sentenced Fortenberry to 324 months' imprisonment, to be followed by a life term of supervised release (Crim. Doc. 32).

Fortenberry then filed the instant motions. Because he challenged counsel's failure to file a requested appeal, an evidentiary hearing on that matter is necessary and will be held on November 22, 2016. See Witthar v. United States, 793 F.3d 920, 923-24 (8th Cir. 2015). Counsel have outlined the issues presently before the Court (Doc. 46). A majority of Fortenberry's grounds for relief may be ruled on the basis of the existing record, and the Court will now address those issues.

Standard

To establish that counsel's assistance was constitutionally ineffective, a petitioner must show that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Both prongs of the Strickland test must be satisfied to obtain relief. Id. at 697.

To establish prejudice under the second Strickland prong, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Where, as here, only the sentencing phase is at issue, the petitioner "must show that but for his counsel's deficiency, there is a reasonable probability he would have received a different sentence." Porter v. McCollum, 558 U.S. 30, 41 (2009). To assess that probability, the court considers "the totality of the available mitigation evidence" and "reweig[hs] it against the evidence in aggravation." Id. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112 (2011). Counsel's failure to advance a meritless argument cannot constitute ineffective assistance of counsel. Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994); see, e.g., Thomas v. United States, 951 F.2d 902, 905 (8th Cir. 1991) ("Counsel's failure to raise [] meritless issues does not constitute ineffective assistance.").

Discussion

In his motions, Fortenberry asserts six grounds for relief (see Doc. 46). Grounds One through Five assert that Fortenberry was denied effective assistance of counsel because his attorney failed to: (1) file a timely notice of appeal; (2) object to an 8-level sentencing enhancement that allegedly violated the plea agreement; (3) object to an upward departure; (4) object that his conduct proscribed by the state law of Missouri was not "sexual activity" within the meaning of 18 U.S.C. § 2422(b); and (5) advise him that he could be sentenced to an 8-level enhancement contrary to the plea agreement. Ground Six asserts that Fortenberry does not qualify as a repeat and dangerous sex offender due to the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015).

As discussed below, Grounds Two, Three, Four, and Six are meritless, and the Court will not address them at the hearing.

In Ground Two, Fortenberry alleges that he was denied effective assistance of counsel because his attorney failed to object to an 8-level sentencing enhancement under § 2G1.3(b)(5) that was not contemplated in the plea agreement. However, counsel did object to this enhancement, as evidenced in the sentencing transcript and counsel's sentencing memorandum. Sent. Tr. at 4-5; Def.'s Sent. Br. at 3 (Crim Doc. 27). Because it is conclusively refuted by the record, this argument is without merit.1

In Ground Three, Fortenberry alleges he was denied effective assistance of counsel because his attorney failed to object to the Court's upward departure. This is also conclusively contradicted by the record. First, Fortenberry's counsel asked for a downward departure in his sentencing memorandum (Crim. Doc. 27 at 3 ("In this case the minimum term of imprisonment is 120 months. Defendant believes that application of the guideline range as calculated by the parties in the agreement, and as calculated in the PSR are unfair and unjust as to the defendant, and that a sentence of 120 months is appropriate to address the [§ 3553(a) factors].")). Second, the sentence imposed was not an "upward departure." Fortenberry's Guidelines range was between 324 and 405 months. The Court sentenced him to 324 months' imprisonment, at the low end of the Guideline range. Hence, there was no upward departure to which counsel could object. This argument is also without merit.2

In Ground Four, Fortenberry alleges he was denied effective assistance of counsel because his attorney failed to object that his conduct proscribed by the state law of Missouri was not "sexual activity" within the meaning of 18 U.S.C. § 2422(b). Section 2422(b) is violated where a person, using a means of interstate commerce, "knowingly persuades, induces, entices, or coerces any individual who has no attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so. . . ." 18 U.S.C. § 2422(b) (emphasis added). Here, the relevant criminal offense is statutory rape under Missouri Revised Statute § 566.032. This statute states that a "person commits the crime of statutory rape in the first degree if he has sexual intercourse with another person who is less than fourteen years old," Mo. Rev. Stat. § 566.032.1, and "an attempt to commit statutory rape in the first degree is [also] a felony. . . ." Id. § 566.032.2.

Fortenberry relies on United States v. Taylor to argue that, because no contact with the victim occurred, his actions do not qualify as "sexual activity" under § 2422(b). 640 F.3d 255 (7th Cir. 2011). In Taylor, the Seventh Circuit Court of Appeals held that the term "sexual activity" as used in § 2422(b) requires some sort of sexual touching or contact, and mutual masturbation via webcam does not qualify as "sexual activity" because no touching or contact is intended or occurs. Id. at 259-60. But the defendant in Taylor "neither made nor, so far as appears, attempted or intended physical contact with the victim." Id. at 260.

Here, Fortenberry pled guilty to facts illustrating he clearly intended physical contact with Jane. For example, the agreed-upon factual basis in his plea agreement states:

Plea Agrmt. at 3 (emphasis added). Had Fortenberry carried out these intentions—intentions the plea agreement acknowledges he had—he could be charged with a violation of Missouri Revised Statute § 566.032.3 Because Fortenberry's conduct clearly violated § 2422(b), the statute of conviction, counsel's argument to the contrary at sentencing would have been meritless. Counsel is not ineffective for failing to advance a meritless argument. Rodriguez, 17 F.3d at 226.

In Ground Six, Fortenberry cites Johnson v. United States, 135 S.Ct. 2551 (2015), for the assertion that he is "not a Repeat & Dangerous Sex Offender and his sentence violates due process of law because he does not have two prior convictions that qualify as a predicate offense under the United States Sentencing Guidelines manual Section 4B1.5(a)."

Johnson is inapplicable to Fortenberry's sentence. Section 4B1.5 was not invalidated in that case, nor was Fortenberry's sentence imposed based on any impermissibly vague rule of law.

Accordingly, Ground Six is denied.

Conclusion

As outlined above, Grounds Two, Three, Four, and Six are DENIED. Grounds One and Five will be addressed at the evidentiary hearing on November 22, 2016.

IT IS SO ORDERED.