United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
RESA L. SPRINGMANN, District Judge.
The Defendant, Phillip Biddle, 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). On August 25, 2014, the Defendant filed a Sealed Sentencing Memorandum [ECF No. 39] arguing that the guideline sentence is greater than necessary to comply with the purposes of punishment under § 3553(a). The Government filed a Sealed Sentencing Memorandum [ECF No. 42] arguing that the advisory guideline range is reasonable and that the government leaves the appropriate sentence to be imposed upon the consideration of § 3553(a) facts to the sound discretion of the Court. This Opinion and Order addresses the parties' arguments regarding the appropriate sentence pursuant to § 3553(a) as well as the Defendant's outstanding objections to the Presentence Investigation Report (PSR), as noted in the addendum to the PSR [ECF No. 45], filed on August 29, 2014. For the reasons provided below the Court will sentence the Defendant to a term of imprisonment of 54 months.
The Defendant pleaded guilty to possession of approximately 23 still images and 81 videos of child pornography. In December 2011, the Federal Bureau of Investigation (FBI) investigated communications involving the Defendant that included the transmission of child pornography. In June 2012, law enforcement executed a search warrant of the Defendant's residence and recovered a HP computer tower, a Compaq mini-pic C120, and 199 CDs/DVDs. The FBI found approximately 23 still images and 81 videos of child pornography on nearly all of the media recovered from the residence. 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 April 24, 2014, the Defendant and the Government entered a written Plea Agreement in which the Defendant pleaded 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. On May 15, 2014, 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 three-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 II, the advisory guideline range of imprisonment is reported in the PSR as 108 to 120 months.
The Defendant is a 37-year-old male with a limited criminal history, including convictions for domestic battery, impersonation of a public servant, and criminal recklessness. The Defendant objects to the inclusion of the victim statements in the PSR, to the enhancements applied under the specific offense characteristics in the PSR, and to the probation officer's conclusion in the PSR that he did not identify any factors that would warrant a departure from the applicable sentencing guideline range. The Defendant also argues that the advisory guideline range results in a sentence that is greater than necessary to comply with the purposes of punishment. The Defendant asks for a sentence of 15 months of imprisonment based on the history and characteristics of the Defendant, including various health issues and past experiences of the Defendant, and the nature and characteristics of the offense, as argued in the Defendant's Sealed Sentencing Memorandum.
A. Defendant's Objections to PSR
The Defendant's first objection concerns the inclusion of the victim letters in the PSR. He argues that the disclaimers included in these letters indicate that it cannot be determined if any of the victims who wrote the letters are actually depicted in the images that were found on his computer. The Defendant argues that the letters should not be included because they came from victims that may not be relevant to this case and, therefore, serve no purpose as to the child pornography found on his computer.
In response, the Government argues that the Defendant possessed images of child pornography from several identified series and that the Government possesses victim impact statements from three series, identified as Series 1, Series 2, and Series 3. The Government advises that it was able to identify three individuals (Victim 1, Victim 2, and Victim 3) from Series 1, a multiple victim series, as well as the victims from Series 2 and Series 3, both single victim series, from the videos in the Defendant's possession.
Upon review of the record, the Court finds that the victim impact statements attached to the PSR are proper because the Government, with the assistance of the FBI, was able to identify the victims contained in Series 1, 2, and 3 in the videos found to be in the Defendant's possession. As such, the Defendant's first objection is overruled.
The Defendant makes the following objections to the enhancements contained in the PSR for the specific offense characteristics: (1) that the two-level enhancement for use of a computer is inappropriate and a poor gauge of relative fault between offenders because nearly every child pornography case involves use of a computer and the Internet; (2) that the five-level enhancement because the offense involved 600 or more images is inappropriate because the unfortunate ease with which large numbers of images can be accessed and stored does not provide a distinction between large-scale and small-scale child pornography purveyors; (3) that the two-level enhancement for material involving a prepubescent minor, or a minor under the age of twelve, is inappropriate because the very nature of child pornography involves children and such an enhancement is a poor gauge of the relative level of fault between offenders; (4) that the two-level enhancement for distribution other than distribution described in subdivision (A) through (E) pursuant to U.S.S.G. §2G2.2(b)(3)(F) is inappropriate because the nature of peer-topeer file sharing programs, with automatic reciprocal sharing, causes mere possession to evolve into unintended distribution; and (5) that the four-level enhancement for possession of material portraying sadistic or masochistic conduct is inappropriate because it is not a valid indicator of culpability, could be applied in most cases, and that, at most, the Defendant only possessed one image that may have been categorized as sadomasochism. The Defendant contends that the enhancements do not accurately reflect the Defendant's culpability for the offense and are a poor gauge by which to make a distinction between the relative level of fault between offenders.
In response, the Government argues that the advisory guideline range is reasonable, that there are no factual disputes as to the enhancements in the PSR, and that the Defendant's arguments that a guideline sentence would be greater than necessary to comply with the purposes of punishment is a consideration under 18 U.S.C. § 3553(a) and not the sentencing guidelines.
The Court finds that the Defendant's objections to the enhancements are more properly made as arguments under the § 3553(a) sentencing factors rather than by objection to the calculation of the sentencing guidelines in the PSR. Indeed, the Defendant's Sealed Sentencing Memorandum makes those arguments. Applicability of the enhancements in formulating the offense level for the sentencing guideline calculation is based on the facts of the case. It is then within the Court's discretion to deviate from the sentencing guidelines, based on § 3553(a) factors, if appropriate in fashioning a sentence for the Defendant. The Defendant does not challenge the underlying facts of the offense by which the enhancements have been applied to the offense level computation for the sentencing guidelines. He instead argues that the result of such an application produces a guideline sentence that is greater than necessary. This argument is well-made as a § 3553(a) argument for the appropriate sentence, but not as an objection to the PSR. As such, the Defendant's objections are overruled.
The Defendant's final objection to the PSR is that he believes he should receive a twolevel variance due to his health issues, as raised in his Sealed Sentencing Memorandum. Pursuant to U.S.S.G. §5k2.22(2), a variance may be made for extraordinary physical impairments where the Defendant's physical condition or appearance is present to an unusual degree and distinguishes his case from typical cases covered by the guidelines. The Government argues that the Defendant does not fit within this provision. Although the Government acknowledges the Defendant's conditions, the Government argues that these characteristics have not prevented the Defendant from doing all the other things, legal and illegal, that other people without those conditions can do and that his conditions cannot now be used to mitigate the punishment for his actions.
The Court notes that this objection concerns the paragraph in the PSR regarding whether the probation officer has identified any factors that would warrant a variance from the sentencing guidelines. As such, the Defendant's arguments that factors supporting a variance do exist are proper under § 3553(a), but not as an objection to the guideline calculations. Therefore, the ...