U.S. v. Hanson

• Decision Date: 20 June 2008
• Docket Number: Case No. 07-CR-330.
• Citation: 561 F.Supp.2d 1004
• Parties: UNITED STATES of America, Plaintiff, v. Jon HANSON, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

561 F.Supp.2d 1004

UNITED STATES of America, Plaintiff, v. Jon HANSON, Defendant.

Case No. 07-CR-330.

United States District Court, E.D. Wisconsin.

June 20, 2008.

Jonathan H. Koenig, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, for Plaintiff.

SENTENCING MEMORANDUM

LYNN ADELMAN, District Judge.

The government charged defendant Jon Hanson with transporting and possessing child pornography, contrary to 18 U.S.C. §§ 2252A(a)(1) & (a)(5)(B), and he entered a plea of guilty to the transporting charge, which carries a statutory penalty range of 5 to 20 years. However, due to the numerous enhancements he faced, the sentencing guidelines recommended that defendant spend 210-262 months in prison. Because I found this range far greater than necessary to satisfy the purposes of sentencing in this case, I imposed a nonguideline sentence of 72 months, followed by life of supervised release. This memorandum sets forth the reasons for the sentence imposed.

I.

In imposing sentence, the district court must first correctly calculate the advisory guideline range, then select an appropriate sentence under all of the factors set forth in 18 U.S.C. § 3553(a). United States v. Holt, 486 F.3d 997, 1004 (7th Cir.2007); see also Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). In the present case, defendant's pre-sentence report ("PSR") recommended a base offense level of 22, U.S.S.G. § 2G2.2(a)(2), plus 2 because the material involved a prepubescent minor or a minor who had not attained the age of 12 years, § 2G2.2(b)(2), plus 5 because defendant distributed the material for a "thing of value" (i.e., other child pornography), § 2G2.2(b)(3)(B) & cmt. n.1, plus 4 because the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, § 2G2.2(b)(4), plus 2 because the offense involved the use of a computer, § 2G2.2(b)(6), and plus 5 because the offense involved 600 or more images, § 2G2.2(b)(7)(D). Following a 3 level reduction for acceptance of responsibility and coupled with a criminal history category of I, the PSR recommended a final guideline range, of 210-262 months. I found these calculations correct and adopted them without objection. I turned then to the § 3553(a) factors.

II.

In imposing the ultimate sentence, the district court must consider all of the factors set forth in § 3553(a). United States v. Harris, 490 F.3d 589, 593 (7th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 963, 169 L.Ed.2d 770 (2008). Those factors include:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed —

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the advisory guideline range;

(5) any pertinent policy statements issued by the Sentencing Commission;

(6) the need to avoid unwarranted sentence disparities; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). After considering these factors, the court must impose a sentence that is "sufficient but not greater than necessary" to satisfy the purposes of sentencing: just punishment, deterrence, protection of the public and rehabilitation of the defendant. § 3553(a)(2). This so-called "parsimony provision" represents the "overarching" command of the statute. Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007).

The district court must give respectful consideration to the guidelines in determining a sufficient sentence, Gall, 128 S.Ct. at 594, but it may not presume that the guideline sentence is the correct one, Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007), or place "any thumb on the scale favoring a guideline sentence." United States v. Sachsenmaier, 491 F.3d 680, 685 (7th Cir.2007); see also United States v. Carter, 530 F.3d 565, 578 (7th Cir.2008) (stating that the guidelines "are but one factor among those listed in 18 U.S.C. § 3553(a)"); United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 3055, 168 L.Ed.2d 767 (2007) (stating that while § 3553(a)(4) "nudges" the court towards the guideline range, the court's "freedom to impose a reasonable sentence outside the range is unfettered"). The court is free to consider whether the guideline sentence itself "fails properly to reflect § 3553(a) considerations" in the case at hand, Rita, 127 S.Ct. at 2465, and/or whether the guideline at issue exemplifies the Sentencing Commission's "exercise of its characteristic institutional role." Kimbrough, 128 S.Ct. at 575.

III.

Defendant participated in a peer-to-peer file sharing program known as "Hello!" A user connected to this program can trade image files, chat in real time, and send and receive folders of image files. The user is required to create a user name, or "handle," and supply an e-mail address and password. The program also sets up file directories, including an archive for images shared.

An investigation by Immigration and Customs Enforcement ("ICE") of a user of Hello from Cleveland known as "M.J." led to defendant Hanson, who used the screenname "Starmale1959." A forensic examination of M.J.'s computer revealed that during conversations between the two on January 18, 2006, M.J. and defendant traded hundreds of image files, which included child pornography.

ICE Agents learned defendant's physical location via Google, then executed a search warrant at his house in December 2006, recovering a Compaq computer containing child pornography, as well as CDs containing such material. Defendant made a statement to agents and agreed to take them to his workplace, where agents seized a Dell laptop that also contained illegal images, as well as an additional CD containing this material. Defendant used the office computer for the January 18, 2006 sharing with M.J., which formed the basis for the count of conviction. According to the ICE agent, the Compaq contained about 132 images, the Dell 161 images, and the five CDs about 100 each. The Center for Missing and Exploited Children was able to identify twenty-six known victims out of the images found on the computers. Some of the images depicted children under the age of twelve and at least one contained violent imagery, i.e. a child assaulted while bound.

As everyone (including defendant) acknowledged, the crime was very serious. Young children are harmed to create this material, which is used to feed a market composed of those with the predilections defendant had. Defendant possessed a significant number of images, and as the government noted at sentencing, his chats with M.J. included vile comments about the children depicted. Congress has signaled its view of the seriousness of the crime by creating a statutory range of 5-20 years. Ultimately, I had to decide where in that range this defendant fell.

In making this determination, I also had to consider defendant's character and background, which was otherwise quite positive. Forty-nine years old, he had no prior record whatsoever. He grew up in an intact home, where his needs were met. He graduated high school, received an associate's degree in funeral science, and held a funeral director's license and operated a funeral home for over twenty years, taking over the business from his father. He appeared to have been a successful and well-respected businessman.

However, as often seems to be the case for this type of offender, defendant reported sexual abuse by an older relative when he was ten years old. This relative forced him and other children to engage in sex acts, which he photographed. This relative also exposed him to pornography. Defendant received no therapy or other help at the time in dealing with these experiences, which shaped his sexual development. Defendant also developed a serious problem with alcohol, reporting that for years prior to his arrest he drank about a fifth of vodka every day.

Defendant married in 1983, but the marriage ended in divorce — based on this case apparently — in 2007. Defendant and his ex-wife had three children, all young adults, and he appeared to have a solid relationship with them. Defendant suffered other severe collateral consequences as a result of the arrest, including the loss of his funeral director license and the sale of the family funeral home business. As a result of his unemployment, he was unable to assist his children financially with their education. After the divorce and sale of the family home, defendant moved in with his parents, where he lived up until sentencing.

Following his arrest in this case, defendant made significant, positive changes in his life, regularly attending Alcoholic's Anonymous ("AA") meetings, generally six days per week. All drug and alcohol screens on pre-trial release were negative. For someone with defendant's heavy use of alcohol, I found this a significant accomplishment. Defendant also received treatment for depression, with medication that seemed to be helping him. Most significantly, shortly after his arrest and before indictment, defendant voluntarily started sex offender treatment with Dr. Michael Kotkin, who submitted a detailed report on defendant's progress.

Dr. Kotkin indicated that defendant consistently attended group and individual sessions, demonstrated good insight into his problems, and seemed committed to avoiding child pornography. Dr. Kotkin stated that defendant's prognosis was quite good given the positive changes he had made in his...