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United States v. Ditiway

United States District Court, N.D. Indiana, Fort Wayne Division

June 9, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
TROY DITIWAY, Defendant.

OPINION AND ORDER

RESA L. SPRINGMANN, District Judge.

The Defendant, Troy Ditiway, pleaded guilty to one count of possession of materials depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). He is awaiting sentencing. This matter is before the Court on the Defendant's request for a sentence below the applicable advisory Sentencing Guidelines range based on the statutory factors provided for such variances in 18 U.S.C. § 3553(a). The Government argues that the facts in this case do not warrant a variance. On October 15, 2013, the Defendant filed a Sentencing Memorandum [ECF No. 40] arguing that the guideline sentence is greater than necessary to comply with the purposes of punishment under § 3553(a) and raising certain objections to the Presentence Investigation Report (PSR). The Government argued that the advisory guideline range was reasonable. On March 24, 2014, the Court issued an Opinion and Order [ECF No. 60] overruling the Defendant's objections to the PSR. In that Order the Court acknowledged the Defendant's § 3553(a) arguments and noted that he would have an opportunity to supplement and further develop his § 3553(a) arguments after an evidentiary hearing for the presentation of evidence regarding the § 3553(a) factors. The Court held an evidentiary hearing on this issue on May 8, 2014. Defense counsel and the Government decided that supplement briefing was unnecessary, and the Court heard oral argument regarding the § 3553(a) factors. For the reasons provided below the Court will sentence the Defendant to a term of imprisonment of 60 months.

BACKGROUND

The Defendant pleaded guilty to possession of approximately 710 images and 35 videos of child pornography. In April 2012 the Federal Bureau of Investigation (FBI) investigated communications involving the Defendant that included the transmission of child pornography and in September 2012 law enforcement executed a search warrant of the Defendant's apartment and recovered nineteen items of digital media. The FBI found approximately 710 graphic images and 35 videos of child pornography on two items of digital media and found no child pornography on the other devices. An FBI review of the images indicated that the images included depictions of sadomasochism and of prepubescent minors or minors under the age of 12.

On June 28, 2013, the Defendant and the Government entered a written Amended Plea Agreement in which the Defendant agreed to plead guilty to the Indictment in return for the Government's recommendations that he receive a reduction for acceptance of responsibility and a sentence equal to the minimum of the applicable guideline range. Also on June 28, 2013, the Court conducted a change of plea hearing and accepted the Defendant's plea of guilty to the Indictment. The Court referred the matter to Probation and Pretrial Services for the preparation of a presentence investigation report (PSR).

The PSR sets a base offense level of 18 under U.S.S.G. § 2G2.2(a). It applies an enhancement of two levels because the offense involved depictions of prepubescent minors who had not attained the age of 12 years, § 2G2.2(b)(2); an enhancement of two levels because the material was distributed by the Defendant, § 2G2.2(b)(3)(F); an enhancement of four levels because the offense involved material portraying sadistic conduct or other depictions of violence, § 2G2.2(b)(4); an enhancement of two levels for use of a computer, § 2G2.2(b)(6); and an enhancement of five levels based on the number of images possessed, § 2G2.2(b)(7)(D). The PSR recommended a 3-level reduction for acceptance of responsibility under § 3E1.1(a) and (b) because the Defendant entered a timely guilty plea. This yielded a total offense level of 30. Coupled with the Defendant's criminal history category of I, the advisory guideline range of imprisonment is reported in the PSR as 97 to 120 months.

FINDINGS OF FACT

The Defendant is a 27-year-old male with no criminal history. He grew up in a stable home with dedicated parents who emphasized the value of hard work and education. Both of his parents worked outside the home, each carrying two jobs at times, to provide for their family. For this reason, there were many times where the Defendant was watched and cared for by his sister, who is 11 years older. During high school, when the Defendant was approximately 17 or 18 years of age, the Defendant began skipping school and his grades began to suffer. In an effort to get the Defendant's attention and steer him back to a positive path, his father took the difficult step of kicking the Defendant out of the house, which lasted roughly 3 months. At that time, the Defendant was allowed to return home after admitting he was wrong and agreeing to resume his education. The Defendant began to turn his life around and make more responsible decisions and eventually earned his high school diploma.

When the Defendant's girlfriend gave birth to their son, the Defendant's only child, he continued to make responsible decisions to support his family. He moved into his own apartment with his girlfriend and son and worked two part-time jobs to provide for his family. Approximately six months after his now three-year-old son was born, the Defendant enrolled in classes at Ivy Tech. He went to school during the day and worked during the evenings while pursuing a degree in criminal justice. At the time of his arrest, he had completed 36 college credits.

The Defendant is by the accounts of his family a loving and caring father, who regularly spent time with his son, including trips to the zoo and Science Central, an educational institution in Fort Wayne, Indiana. The Defendant also frequently visited his parents, along with his sister and her ten-year-old daughter, and enjoys a positive and healthy relationship with them. His desire to be a good father and provider for his son motivated him, and the fact that his son was present when he was arrested made it that much more difficult on the Defendant. He has experienced feelings of shame and guilt for his actions and knows that he must face the consequences of his actions, but he has also expressed that he is willing to do whatever it takes to atone for his transgressions and make things right. He admit having an addiction to pornography, which he asserts progressively got worse over the years until he participated in the offense conduct, and now freely admits that he needs and wants help. The Defendant asserts that he never paid or received money for any of the images, that his computer was password protected, and that his did not intend to distribute child pornography but rather just viewed it himself.

The Defendant has been incarcerated in protective custody for 23 hours per day in the Allen County Jail since his arrest at his own request, which stems from his desire to avoid any potential conflict with other inmates that might detract from his goal to turn his life around. He was very close to his mother, who passed away in January 2013 while the Defendant was incarcerated in this matter. Throughout the course of the investigation the Defendant has cooperated with authorities, has accepted responsibility for his actions, and has stated he is prepared to face the consequences of his poor choices, but he looks forward to a second chance on life and is eager to get the help necessary to deal with his addiction and return to society where he can hopefully find a job that enables him to help other people.

ANALYSIS

When sentencing a defendant, the district court "must first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a)." Nelson v. United States, 555 U.S. 350, 351 (2009); see also United States v. Panice, 598 F.3d 426, 441 (7th Cir. 2010) (setting forth the twostep process that a sentencing court must engage in to determine a defendant's sentence); United States v. Bush, 523 F.3d 727, 729 (7th Cir. 2008) (same). Here, the primary issue involves the second step, the application of the criteria set forth in § 3553(a) to the facts and circumstances of the Defendant's particular case. In imposing a sentence, § 3553(a) requires a court to consider:

(1) the nature and circumstances of the offense and the history and ...

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