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United States v. Smith

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

November 4, 2019

SHEA SMITH, Defendant.



         This matter comes before the Court on Defendant's Plea Agreement (ECF No. 28) calling for a term of imprisonment of 60 months, which would be binding on the Court under Federal Rule of Criminal Procedure 11(c)(1)(C) if the Plea Agreement was accepted. The Court held a sentencing hearing on October 28, 2019, which included extended discussion on the binding term. For the reasons set forth below, and for the reasons announced on the record, the Court rejected the Plea Agreement. After Defendant elected to go forward with sentencing following the rejection, the Court sentenced Defendant to a term of 78 months imprisonment. This Opinion memorializes the grounds for the Court's decision.


         On August 20, 2016, a covert FBI agent investigating online child pornography directed his investigation to an IP address later identified as belonging to Defendant. Over the course of approximately twelve hours the agent was able to download 99 files from Defendant's computer using BitTorrent software. These files included videos of nude minor females between the ages of nine and twelve years old engaged in sexually explicit conduct.

         Federal agents executed search warrants at Defendant's home and business address on August 29, 2017. As a result of those searches, the Government recovered six hard drives containing child pornography. The electronic devices at Defendant's home contained 1, 487 images and 128 videos, while the devices at Defendant's business contained 1, 834 images and 427 videos. In total, Defendant possessed 3, 321 images and 555 videos. The images and videos contained, among other things, depictions of: prepubescent minors or minors who had not attained the age of twelve years, to include toddlers, intercourse (anal and vaginal) with adults, penetration involving foreign objects, and bondage. Defendant received these items between July 2014 and July 2017.


         A. Binding Plea Standard of Review

         A criminal defendant has “no absolute right to have a guilty plea accepted.” Santobello v. New York, 404 U.S. 257, 262 (1971) (citations omitted). Rather, a district court has the sound discretion to reject a plea agreement “if it [finds] the agreement would undermine the sentencing guidelines or [would] not adequately take into account the defendant's relevant conduct.” United States v. Martin, 287 F.3d 609, 624 (7th Cir. 2002).

         When a plea agreement contains a “specific sentence or sentencing range” under Rule 11(c)(1)(C), a district court “may accept the agreement, reject it, or defer a decision until the court has reviewed the [PSR].” Fed. R. Crim. P. 11(c)(3)(A). If a district court rejects such a plea agreement, it “must explain why it finds the agreement objectionable.” United States v. Kraus, 137 F.3d 447, 453 (7th Cir. 1998). But the district court must limit its comments to the plea agreement itself; the district court's “license to speak about what it finds acceptable and unacceptable-to suggest an appropriate sentencing range-is at an end.” Id. at 453-54 (citations omitted). In other words, the district court is precluded from opining on hypothetical plea deals and participating in plea negotiations. Fed. R. Crim. P. 11(c)(1); Kraus, 137 F.3d at 452 (citations omitted) (cataloging cases).

         B. Calculation of the Guideline Sentence

         The first step for a district court in determining an appropriate sentence is to calculate the applicable Guideline range. U.S.S.G. § 1B1.1; United States v. LaShay, 417 F.3d 715, 719 (7th Cir. 2005). Here, Defendant's base offense level is 22 under USSG § 2G2.2(a)(2). Defendant's offense level was increased pursuant to the following Guideline provisions:

. Two levels for material involving a prepubescent minor or a minor who had not attained the age of twelve years (USSG § 2G2.2(b)(2));
. Four levels for material that portrays sadistic or masochistic conduct or other depictions of violence or sexual abuse or exploitation of an infant or toddler (USSG § 2G2.2(b)(4)(A) and (B));
. Two levels for use of a computer (USSG § 2G2.2(b)(6)); and
. Five levels for 600 or more images (USSG § 2G2.2(7)(D)).

         Defendant received a two-level decrease under USSG § 3E1.1(a) for acceptance of responsibility. In total, Defendant's offense level is 33. Defendant had no criminal history points, resulting in a criminal history category of I. Taken together, the Guideline imprisonment range is 135 to 168 months. The binding plea, then, amounts to a downward variance of approximately eight levels.

         C. Sentencing in Child Pornography Cases

         Very few federal crimes engender as much debate and disparity in sentencing as child pornography offenses. Largely due to Congressional action, penalties for child pornography offenses have steadily risen, both in the base offense level assigned and the applicable sentencing enhancements. At the same time, both the sentencing commission and the federal judiciary have pushed back, largely rejecting the ever-increasing sentences called for by legislation. These ongoing debates bear directly on the Court's analysis regarding an appropriate sentence in this case, and therefore will be discussed herein.

         1. Historical Trends in Sentencing

         While child pornography laws were once the exclusive domain of state legislatures, the trend over the last forty years has been to criminalize more acts with ever-longer sentences. The first federal statute to address the issue was the Protection of Children Against Sexual Exploitation Act of 1977[1]. This legislation targeted the commercial production of visual and print depictions of obscenity involving minors, then defined as children under sixteen. The Child Protection Act of 1984[2] followed, which deleted the obscenity requirement to criminalize the production and distribution of depictions of minors engaged in sexually explicit conduct. The statute also raised the age of minority from sixteen to eighteen. A few years later, the Child Protection and Obscenity Enforcement Act of 1988[3] specifically prohibited the use of a computer to transport, distribute, or receive visual depictions of minors engaged in sexually explicit conduct. As part of the Crime Control Act of 1990[4] simple possession of child pornography was, for the first time, criminalized under federal law.

         The increase in federal legislation was accompanied by an increase in the sentences provided by the Sentencing Guidelines. As part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act of 2003[5] (the “PROTECT Act”), Congress directly modified the Guidelines for child pornography offenses by increasing base offense levels and adding enhancement provisions. Among the enhancement provisions that have been added are many of the enhancements that apply to Defendant: use of a computer; material involving a minor less than twelve years of age; material depicting sadistic or masochistic conduct or depictions of violence, and graduated enhancements for the number of images.

         The impact of these changes on offenders has been dramatic. The Guideline range for a common offender with no criminal history and credit for acceptance of responsibility has risen from no punishment if sentenced on April 30, 1987 (as possession was not then a federal offense), to a range of six to twelve months on November 1, 1991, twenty-one to twenty-seven months on November 1, 1996, and finally, forty-one to fifty-one months on November 1, 2004.[6] Incarceration rates rose from 77% of child pornography offenders in 1996, to 97% in 2006.[7] The mean sentence for possession, receipt, or distribution of child pornography rose from 20.59 months in 1997 to 91.82 in 2008.[8]

         The remarkable increase in the length of sentences is largely the result of the application of the enhancement provisions. In a 2010 report, the Sentencing Commission found that a least one enhancement applied in every child pornography case and several enhancements appeared in the vast majority of cases: 97% for use of a computer; 97% for number of images; 95% for a child under twelve years; and 73% for a violent theme.[9] The enhancements in USSG § 2G2.2 have become less “specific offense characteristics, ” and more a standard part of the offense generally.

         2. Modern ...

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