UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA, ) CRIMINALACTION NO.
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Plaintiff, ) 4:08-CR-005-A
v. )
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AAAA BBBB XXXX, )
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Defendant. )
)
SENTENCING MEMORANDUM
I. HAVE WE GONE MAD?
ThePresentence Report in this case recommends – albeit contrary toestablished law – a sentencing guideline range of 151-188 monthsimprisonment.
First consider the hypothetical of a man who, in 2006,contacted a twelve year-old girl over the Internet. Using his age andexperience, he convinced her to meet, and the two engaged in repeated sex. U.S.S.G. ¤ 2G1.3(a) (since amended tobe made consistent with congressionally initiated changes of the Adam WalshAct) established a base offense level of 24 for the offense. After a two-level enhancement forunduly influencing the child under U.S.S.G. ¤2G1.3(b)(2), a two-levelenhancement for use of the computer (b)(3), and a two-level enhancement forcommission of a sex act (b)(4), the final offense level would have been30. After Acceptance, theGuideline range for this Category I offender would have been 70-87 months imprisonment.
Considernext the aggravated case of Joe Champion, as discussed at United States v.Kane, 470 F.3d 1277 (8th Cir. 2006). Mr. Champion paid $20 to have a mother hold down her nineyear-old child while Mr. Champion raped the young girl twice a week for twoyears. During these rapes, the childexperienced such trauma she passed out. These assaults happened over 200 times! The damage to the child physically and emotionally isunimaginable. Using theGuidelines, applying all enhancements, and granting only Acceptance ofResponsibility, the court determined the Guideline range was 151-188months. Id. at 1282.
Nextconsider a person charged with using interstate commerce facilities in thecommission of a murder for hire. Under U.S.S.G. ¤ 2E1.4, his guideline imprisonment range with acceptanceof responsibility would be 87-108 months.
IfMr. XXXX had possessed over 1,000 lbs of explosives with the intent to blow upa building, his guideline range would be 27-33 months imprisonment. See U.S.S.G. ¤ 2K1.3.
Toeven dream up a system in which Mr. XXXX could face the same amount ofimprisonment time as Joe Champion and a system in which he faces more than fivetimes the imprisonment range that he would face had he possessed 1,000 lbs ofexplosives intending to blow up a building. is almost unfathomable. Perhaps this is why fully one-thirdof those sentenced in FY 2007 for child pornography offenses received sentencesbelow their applicable guidelines.
II. FLAWEDPROGRESSION OF THE CHILD PORNORGRAPHY GUIDELINES
Severaljudges have recently noted that the insanely high guidelines for childpornography offenses are purely the result of politics and are not based upon an empirical approach by the United StatesSentencing Commission:
The guidelines for child exploitation offenses werenot developed using an empirical approach by the Sentencing Commission, butrather were mainly promulgated in response to statutory directives. Specifically, the Protect Act directlyamended guideline 2G2.2 by amending the guideline enhancements for specific offensecharacteristics. Thesemodifications do not appear to be based on any sort of empirical data, and theCourt has been unable to locate any particular rationale for them beyond thegeneral revulsion that is associated with child exploitation-related offenses.
United States v. Shipley, No. 4:07-CR-00081 (S.D. Iowa June 19, 2008) (attached hereto as Attachment A). The political phenomenon is discussedat length in a June 10, 2008 article entitled Deconstructing the Myth ofCareful Study: A Primer of the Flawed Progression of the Child PornographyGuidelines. See AttachmentB hereto (pages 1-30 of study).
As noted just last week by one Judge:
Congress established the SentencingCommission Òto formulate and constantly refine national sentencing standards,Óin fulfillment of its important institutional role. Kimbrough, 552 U.S. at ----, 128 S.Ct. at 574(noting key role preserved for the Sentencing Commission); Rita v. UnitedStates, 551 U.S. at ----,127 S.Ct. at 2464. In that institutional role, the Sentencing Commission Òhasthe capacity courts lack to Ôbase its determinations on empirical data andnational experience, guided by a professional staff with appropriateexpertise.ÕÓ Kimbrough,552 U.S. at ----, 128 S.Ct. at 574 (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir.2007)(McConnell, J., concurring)); see also Gall, 552 U.S. at ----, 128 S.Ct. at 594(noting that Òeven though the Guidelines are advisory rather than mandatory,they are ... the product of careful study based on extensive empirical evidencederived from the review of thousands of individual sentencing decisionsÓ).
However, when Guidelines are not theresult of Òthe Commission's exercise of its characteristic institutional role,Ósuch as when they are not based on an empirical approach, but are instead keyedto or guided by statutory directives, a court is not presented with theÒordinary case,Ó in which Òthe Commission's recommendation of a sentencingrange will Ôreflect a rough approximation of sentences that might achieve ¤3553(a)'s objectives.Õ Ò See, e.g., Kimbrough, 552 U.S. at ----, 128 S.Ct. at 574 (quoting Rita, 551 U.S. at ----, 127 S.Ct. at 2465);see also Gall, 552U.S. at ----, 128 S.Ct. at 594 n. 2 (noting that not all Guidelines are tied toempirical evidence, most notably, those for drug offenses). In cases involvingapplication of Guidelines that Òdo not exemplify the Commission's exercise ofits characteristic institutional role,Ó it is Ònot an abuse of discretion for adistrict court to conclude when sentencing a particular defendantÓ thatapplication of the guideline Òyields a sentence Ôgreater than necessaryÕ toachieve ¤ 3553(a)'s purposes even in a mine-run case.Ó Kimbrough, 552 U.S. at ----, 128 S.Ct. at 575.
United States v. Baird, 2008 WL 151258 (D. Neb. Jan 11,2008). And, as noted by yetanother judge:
Ina recent paper published on Professor Douglas BermanÕs sentencing website, anAssistant Federal Defender traced the history of this guideline and pointed outits serious flaws, which were clearly evident in this case. See Troy Sabenow, Deconstructing the Myth ofCareful Study: A Primer on the Flawed Progression of the Child PornographyGuidelines, available at http://sentencing.typepad.com (June 10, 2008). As Stabenow explains, much like the crackguideline criticized by the Supreme Court in Kimbrough, guideline 2G2.2 is not representative of theCommissionÕs typical role or of empirical study. The guideline has been steadily increased despite evidenceand recommendations by the Commission to the contrary. Congress has repeatedlyamended it directly, ostensibly to target mass producers of child pornographyand/or repeat abusers of children, a class of offenders that make up less than5% of those affected by the changes. The most recent changes from 2003 apparently came from two lawyers inthe Justice Department who persuaded a novice Congressman to add them to thepopular Amber Alert bill. Id. at 27. To the extent that the advisory guidelines deserve continued respectfrom courts, that respect will be greatest where the Commission has satisfiedits institutional role of relying on evidence and study to develop soundsentencing practices. This guideline simply does not represent that role, asthe Commission itself has acknowledged.
Between1994 and 2007, the mean sentence in child pornography cases increased from 36months to 110 months. Id. at1. As Stabenow notes, thisincrease was not the result of the empirical approach often used by theCommission, designed to be an expert body on sentencing. Rather, it was the result of arbitraryincreases by Congress slipped into other bills, often with little or no debate, resulting in directamendments to the guidelines. Id.at 2. These amendments destroyedsome of the careful distinctions the Commission had drawn between true peddlersof child pornography and more simple possessors or transporters. To its credit,and as in the crack cocaine context, the Commission sought to persuade Congressnot [sic.] make such changes, but to no avail. Id. at 3-7(quoting letter from Chair of the Commission). Specifically, the Commission hasnoted that the enhancement for use of a computer does not make much sensebecause online pornography comes from the same pool of images found inspecialty magazines or adult bookstores. Further, to the extent that use of a computer may aggravate an offense,it does not do so in every case. For example, someone who e-mails images to another (like the instantdefendant) is not as culpable as someone who sets up a website to distributechild pornography to a large number of subscribers. If the defendant did not use the computer to widelydisseminate the images, use them to entice a child, or show them to a child,the purpose for the enhancement is not served. Id. at 14-15. Yet it applies in virtually all cases.
TheCommission itself sought to increase penalties for those offenders who also hada history of sexually exploiting or abusing minors, and posed a greater risk ofrecidivism, certainly a valid concern. However, Stabenow notes that it did so based on a study of offenders in1994 and 1995, while most offenders prosecuted in federal court today, such asdefendant Hanson, have no such histories. The typical child pornography defendant today has no prior felonies of anykind, let alone prior abuse of children, and is not involved in production.Id. at 13.
Finally,in 2003, as part of the Feeney Amendment to the PROTECT Act, Congress added the5 level enhancement for number of images. No research, study or rationale was provided for this huge increase. At the same time, Congress established the 5 year mandatoryminimum applicable in this case, as a result of which the Commission alsoincreased the base offense level to 22 to keep pace. Again, this had nothing to do with the CommissionÕsstatutory mission of satisfying the purposes of sentencing. Id. at 18-19.
United States v. Hanson,No. 07-CR-330 (D. Wisc. June 20, 008) (attached hereto as Attachment C).
Toput all of this in perspective and using the flawed application of thesentencing guidelines as recommended by the Probation Department in this case,the following would be Mr. XXXXÕs offense level and imprisonment range over theyears:
1987-11/1990 13 12-18months
11/1990-11/1996 18 21-27months
11/1996-11/2000 22 41-51months
11/2000-4/2003 27 70-87months
4/2003-11/2004 29 87-108months
11/2004-pres. 34 151-188months
III. CASELAW
Of course, a district judge may no longer Òpresumethat the Guidelines range is reasonable.Ó Gall v. United States,128 S.Ct. 586, 597 (2007). This is particularly the case whereparticular guidelines are less reliable because they are not empiricallygrounded. Kimbrough v. UnitedStates, 128 S.Ct. 558, 574(2007); Baird, 2008 WL at * 7; Shipley (Attachment A at 7-8). Again, perhaps this is why one-third of those sentenced in2007 for child pornography offenses received sentences below their applicableguidelines.
A. Fifth Circuit
The madness of the sentencing guidelines in childpornography cases appears to be resonating with courts in the FifthCircuit. For example, just thismonth, the Fifth Circuit found a district courtÕs sentence of probation to be reasonable for a defendant convicted ofpossessing child pornography despite the fact that the sentencing guidelinescalled for 46-57 months imprisonment. United States v. Rowan,2008 WL 2332527 (5th Cir. June 9, 2008).
Alsothis month, the Fifth Circuit found that a sentence to the mandatory minimumsentence of 60 months imprisonmentwas reasonable for a defendant accused of distributing child pornography ratherthan his guideline sentence of 210-262 months. United States v. Nazerzadeh, 2008 WL 2325646 (5th Cir. June 6, 2008).
Oneweek before Nazerzadeh, the FifthCircuit upheld a 60 month sentencein a child pornography case, where the defendant was originally charged withactually producing childpornography, despite the fact that the Sentencing Guidelines called for a 120month sentence. United Statesv. Taylor, 2008 WL 2329191 (5thCir. June 4, 2008).
InJanuary, the Fifth Circuit upheld a probation sentence (with one year house arrest) as reasonablefor a defendant convicted of possessing child pornography. United States v. Polito, 215 Fed. Appx. 354 (5th Cir. 2007). One of the reasons for the variance wasto allow Polito to continue his mental health treatment.
B. Other Cases
Many of the cases discussed in Section II – twoof which were decided this past week – are instructive.
InBaird, the defendant was chargedwith possession of child pornography and faced 63-78 months imprisonment. He was sentenced to two yearsimprisonment. Baird, 2008 WL 151258.
InShipley, the defendant was chargedwith using a file-sharing program to distribute child pornography and faced210-240 months imprisonment. He was sentenced to 90 months imprisonment and five years supervisedreleased. See Attachment A.
InHanson, the defendant was alsocharged with using a file-sharing program to distribute child pornography andfaced 21-240 months imprisonment. He was sentenced to 72 months imprisonment and a life term of supervisedrelease. See Attachment C.
Anexcellent discussion is also contained in United States v. Cherry, 487 F.3d 366 decided by the United States Court ofAppeals for the Sixth Circuit in which it approved as reasonable a 43% downwardvariance for a defendant charged with distributing child pornography. One reason for the variance was becauseCherry would get little mental health treatment in prison. Id. at 370. Likewise, in UnitedStates v. Beach, 2008 WL 1896766 (6thCir. April 29, 2008) the Sixth Circuit upheld a downward variance to 96 monthsimprisonment from a 210-240 month guideline range for a defendant convicted ofdistributing child pornography. Again in United States v. Grossman, 513 F.3d 592 (6th Cir. 2008) the Sixth Circuit upheld a 66months imprisonment sentence in a child pornography case despite the fact thatthe defendant was facing 135-168 months imprisonment.
InUnited States v. White, 506 F.3d635 (8th Cir. 2007), the United States Court of Appeals for theEighth Circuit approved a downward variance from 135 months imprisonment to 72months imprisonment in a child pornography case. In particular, the Court noted that a downward variance doesnot have to be Òsupported byextraordinary circumstances.Ó Id. at 647.
InUnited States v. Gray, 453 F.3d1323 (11th Cir. 2006), the United States Court of Appeals for theEleventh Circuit upheld a 72-month imprisonment sentence where the defendantwas charged with distributing child pornography and faced a guideline sentenceof 151 months imprisonment.
InUnited States v. Smith, 2008 WL1816564 (4th Cir. April 23, 2008), the Court of Appeals for theFourth Circuit upheld a sentence of 24 months imprisonment for a defendantcharged with possessing over 600 images of child pornography and facing aguideline imprisonment sentence of 78-97 months. See also UnitedStates v. Pauley, 511 F.3d 468 (4thCir. 2007) (Approving 36 month downward variance for defendant charged withpossession of child pornography and facing a guideline imprisonment sentence of78-97 months).
IV. 18U.S.C. ¤ 3553
As this Court is,of course, well aware, section 3553(a) requires courts to Òimpose a sentencesufficient, but not greater than necessary,Ó to comply with thepurposes set forth in the sentencing statute. Section 3553 states that such purposes are:
(1) the nature and circumstances of theoffense and the history and characteristics of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of theoffense, to promote respect for the law, and to provide just punishment for theoffense;
(B) to afford adequate deterrence tocriminal conduct;
(C) to protect the public from furthercrimes of the defendant; and
(D) to provide the defendant with needededucational or vocational training, medical care, or other correctionaltreatment in the most effective manner;
(3) the kinds of sentences available;
(4) the advisory guideline range;
(5) any pertinent policy statements issuedby the Sentencing Commission;
(6) the need to avoid unwarranted sentencedisparities; and
(7) the need to provide restitution to anyvictims of the offense.
A. Nature of Offense
Almostevery court that has granted a downward variance or upheld a downward variancein child pornography cases has noted that child pornography cases are seriousoffenses. Perhaps the bestdiscussion is contained in United States v. Wachowiak, 412 F. Supp. 2d 958 (E.D. Wis. 2006)where a defendant was convicted of receiving child pornography using a fileshare program and the District Court sentenced the defendant to 70 monthsimprisonment rather than the 121-151 months recommended by the sentencingguidelines.
There can be no doubt that possessingchild pornography is a very serious crime, and defendant's offense involved alarge number of images, some of which depicted pre-pubescent children andsadistic conduct. These wereaggravating factors.
However, there was no evidence thatdefendant possessed the material in order to entice a child, that he producedany of the images, or that he purposely distributed them (though he did makethem available to others through the file sharing program). Nor was there anyindication of improper contact with an actual child. The PSR identified severalof the victims depicted in the images, and I received a statement from themother of one of them, which detailed the severe harm caused her daughter.
As noted, defendant came to the attentionof law enforcement when the FBI accessed his computer through a file sharingprogram. Defendant was extremely cooperative, voluntarily accompanied the FBIagents to their offices and provided a detailed confession.
Id. at 960.
Asin Wachowiak, thedefense acknowledges this is a serous crime. Nevertheless, it should be pointed out that, not only didMr. XXXX fully cooperate with the FBI in this case, but he also he deleted thefile-sharing program prior to learning that he was under investigation. See GovernmentÕs Response to DefendantÕsObjections to the Presentence Report at 3 (ÒThe preliminary examination didconfirm that XXXX was no longer running [the file-sharing] software on hiscomputer.Ó). Moreover, XXXXhimself acknowledged in therapy sessions that what he as doing wasÒdeviant.Ó See PSR at ¦ 48.
Moreover,although not meant to minimize Mr. XXXXÕs offense, it should be noted that,unlike in Wachowiak,this case involves a small number of images, only one of which involvedviolence. See Cherry, 487 F.3d at 369 (Ò[T]he district courtstated that the number of images Cherry downloaded was ÒÔrelatively smallcompared to [other defendants], and the guidelines have sort of a skewedmeasurement of those numbersÕÉ.Ó).
Finally,the Probation Department recommends a five level distribution enhancement inthis case based upon the use of the file share program. Nevertheless, this is the same type ofenhancement that would be imposed Òon a commercial peddlerÓ of childpornography. This case Òin no wayinvolved commercial activity or profit from these types of images.Ó See Hanson, at 7 (Attachment C). Indeed, this case is qualitativelydifferent from business distribution.
B. Characterof the Defendant
Mr. XXXX is blessed with a supportivefamily. See Letters (attached hereto as AttachmentsD-F). In addition, prior to theindictment in this case, he has taken positive steps to deal with his problemsby enrolling in psychotherapy and by seeking treatment for his alcoholproblems. See PSR at ¦¦ 48-49.
Moreover,as much as society must hold Mr. XXXX responsible for his actions in this case,it should not be lost that our society owes Mr. XXXX its gratitude for hisservice to the country. As notedin the PSR, Mr. XXXX served on active duty as a Òtop gunÓ fighter pilot in theUnited States Marine Corp. for nine years with over 200 aircraft landings. See PSR at ¦¦ 44,57. Even after active duty, Mr. XXXXcontinued with the Marines as a reservist. Id.at ¦ 57. In determining whether adownward variance is appropriate in this case, this Court should certainly considerthe debt this country owes Mr. XXXX for his accomplished military service. See Kimbrough, 128 S.Ct. at 575 (Upholding downwardvariance based, in part, on the defendantÕs exemplary military service). See also, Shipley at 8 (Attachment A) (Noting that variancewas based in part on the defendantÕs Òservice to his country.Ó); Baird, 2008 WL 151258 at *6 (Variance based inpart on defendantÕs service to the country, having been a captain in the AirForce).
C. JustPunishment/Respect for the Law/Deterrence
Asentence of 60 months imprisonment in this case would certainly be ÒjustÓpunishment. In addition, Mr. XXXXwill have the stigma of being a registered sex offender for the rest of hislife. Such a sentence wouldÒreflect[] the seriousness of the offense and the associated impact the crimehas on children, while also reflecting the fact that the Defendant has lived anadmirable life until the commission of this crime. Shipley at 10 (Attachment A).
Inaddition, to the extent that other offenders will pay attention to thissentence, if a sentence of 5 years imprisonment and being a registered sexoffender does not deter those offenders, it is safe to say that nothing will. Shipley at 9 (Attachment A). Indeed, Ò[t]he mere fact of [Mr. XXXXÕs]prosecution deters others from engaging in this sort of conduct, and a sentenceof incarceration will act as a further deterrent to others contemplating suchactivity. The value of any longersentence as a deterrentÉwould be marginal.Ó Baird,2008 WL 151258 at *7.
Itcan also be said that a sentence so out of proportion to the conduct does not promote respect for the law, but actuallypromotes disrespectfor the law. See United Statesv. Williams, 435 F.3d1350, 1352-53 (11th Cir. 2006).
D. Protectthe Public/Provide Treatment
Counselhas grouped these two factors together because it would seem self-evident thatit is in the publicÕs best interest that Mr. XXXX gets effective treatmentsince he is ordinarily a contributing member of our society. With the proper treatment, the publiccan be protected from Mr. XXXXÕs use of child pornography while having thebenefit of his contributions.
Unfortunately,the Bureau of Prisons has one Sex Offender Treatment Program (ÒSOTPÓ), and it is at FMC Butner,North Carolina. The program onlyhas 112 beds and turns away many inmates who seek treatment. As a result, only one percent of sexoffenders in federalprison receive sex offender treatment before they are released. Moreover, a person incarcerated withthe Bureau of Prisons is not even eligible to receive treatment until they havetwenty-four months orless remaining on their sentence. See BOP Policy Statement 5310.12 ¤5.2(A). See also Wachowiak, 412 F. Supp. at 963 (ÒIt was also myunderstanding that space in the Butner program is limited, and many inmatesnever get in. Thus, defendantcould be denied treatment for the entire prison sentence.Ó).
Thiswas exactly the analysis approved by the Sixth Circuit in Cherry where it observed:
Noting that Cherry would get littletreatment in prison, the district court counted this factor in favor of a lowsentence, especially in light of Cherry's demonstrated desire for treatment.
Cherry, 487 F.3d at 369.
Insum, recognizing that there is a mandatory minimum sentence that the Court mustimpose in this case, it must also be recognized that, the longer the sentenceimposed in this case, the longer it will take for Mr. XXXX to get the treatmenthe needs. Indeed, significanttreatment conditions as part of supervised release will offer better treatmentopportunities and protect the public as much or more than a draconian sentence.
E. Guidelinesand Policy Statements
Asdiscussed above, the Court can no longer Òpresumethat the Guidelines range is reasonable.Ó Gall 128 S.Ct. at 597. This is particularly true in this casewhere, as explained in Shipley, Baird and Hanson,Òthe Guidelines do not reflect the CommissionÕs unique institutionalstrengths.Ó Baird, 2008 WL 151258 at *7.
F. Disparity
Asdiscussed, courts vary downward in approximately one-third of child pornographycases. Therefore, a downwardvariance in this case would hardly result in a Òdisparity.Ó Moreover, the case offers some uniquefactors that would justify a disparity in any event. The first factor, as noted above, is Mr. XXXXÕs long serviceto his country – a characteristic possessed by relatively fewdefendants. Second is the factthat Mr. XXXX is being sentenced based on 10-150 images, but the number (20) ismuch closer to the bottom than the top. Third is the confirmed fact that Mr. XXXX stopped the use of thefile-share programs prior to learning that he was under investigation. Fourth, to the extent the Court findsthat a four-level enhancement is applicable under U.S.S.G. ¤ 2G2.2(b)(4), a disparitywould be warranted where a defendant, such as this one, had only one qualifyingimage. Fifth, to the extent theCourt finds that a five-level enhancement is applicable under U.S.S.G. ¤2G2.2(b)(2)(B), a disparity would be justified in order to distinguish betweenMr. XXXX and a commercial distributor who would otherwise receive the sameenhancement.
V. CONCLUSION
ÒAlthough the sentencing judge is obliged to consider all ofthe sentencing factors outlined in section 3553(a), the judge is not prohibitedfrom including in that consideration the judge's own sense of what is a fairand just sentence under all the circumstances. That is the historic role ofsentencing judges, and it may continue to be exercised, subject to thereviewing court's ultimate authority to reject any sentence that exceeds thebounds of reasonableness.Ó UnitedStates v. Jones, 460 F.3d 191, 195 (2dCir. 2006)
Counsel submits that a sentence of 60 months is morethan adequate to serve as a sentence that is Òsufficient,but not greater than necessary.Ó Moreover, it helps overcome the madness described in Sections I and II,given that as little as eight years ago Mr. XXXXÕs guideline imprisonmentsentence would have been a maximum of 51 months imprisonment.
Respectfullysubmitted,
F.Clinton Broden
Tx.Bar 24001495
Broden& Mickelsen
2707Hibernia
Dallas,Texas 75204
214-720-9552
214-720-9594(facsimile)
\
Attorneyfor Defendant
AAAABBBB XXXX
CERTIFICATE OF SERVICE
I,F. Clinton Broden, certify that on June 23, 2008, I caused the foregoingdocument to be served by U.S. Mail, first class, on:
Aisha Saleem
Assistant United States Attorney
1100 Commerce Street
Dallas, Texas 75242
_________________________________
F.Clinton Broden