U.S. v. Baird

Decision Date11 January 2008
Docket NumberNo. 8:07CR204.,8:07CR204.
Citation580 F.Supp.2d 889
PartiesUNITED STATES of America, Plaintiff, v. Eric BAIRD, Defendant.
CourtU.S. District Court — District of Nebraska

Michael P. Norris, Assistant United States Attorney, Omaha, NE, for Plaintiff.

James E. Schaefer, Gallup, Schaefer Law Firm, Omaha, NE, for Defendant.

SENTENCING MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, Chief Judge.

This matter is before the court for sentencing. This memorandum opinion supplements findings made on the record at a sentencing hearing on December 19, 2007.

I. FACTS

Defendant Eric Baird was charged in a one-count information with possession of child pornography, a violation of 18 U.S.C. § 2252(a)(4). Filing No. 1, Information. By statute, the crime is punishable by imprisonment for up to ten years. 18 U.S.C. § 2252(b)(2). Pursuant to a plea agreement, Baird entered a plea of guilty to the charge. Filing Nos. 4, Plea Agreement ("Plea Agr.") at 6, Minutes of plea hearing. In his petition to enter a plea of guilty, Baird stated, "I downloaded several images of child porn and made a C.D. of them." Filing No. 3, Petition. In the plea agreement, defendant agreed that U.S.S.G. § 2G2.2 applied and that his base offense level was 18. Filing No. 4, Plea Agr. at 2. The United States (hereinafter, "the government") agreed that the defendant made a timely notification of intent to plead guilty and it agreed to recommend a sentence at the low end of the guideline range. Id. The government also stated that several guideline enhancements were likely to apply, but Baird reserved the right to challenge those enhancements. Id. at 3. At the plea hearing, the defendant acknowledged that the government had evidence that he possessed 800 images of suspected child pornography and one video and one image of a known child pornography victim. Filing No. 26, Change of Plea Hearing Transcript ("Plea Hr'g Tr.") at 20-22, 24-25. The court accepted Baird's plea but deferred acceptance of the plea agreement pending the preparation of a Presentence Investigation Report (hereinafter "PSR") by the United States Office of Probation (hereinafter, "the Probation Office"), calculating defendant's sentence under the United States Sentencing Guidelines ("the Guidelines" or "federal guidelines").

In the PSR, the Probation Office identified U.S.S.G. § 2G2.2 as the applicable guideline provision for a violation of 18 U.S.C. § 2252(a)(4) and determined that Baird's base offense level should be 18. The Probation Office found the following adjustments were applicable: a two-level increase under U.S.S.G. § 2G2.2(b)(2) (material containing a prepubescent minor), a five-level increase under U.S.S.G. § 2G2.2(b)(3)(B) (distribution for receipt or expectation of a thing of value, but not for pecuniary gain), a two-level increase under U.S.S.G. § 2G2.2(b)(6) (use of a computer), and a two-level increase under U.S.S.G. § 2G2.2(b)(7)(A) (between 10 and 150 images). The application of these enhancements resulted in an adjusted offense level of 29. The Probation Office then subtracted three levels for the defendant's acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total offense level of 26. The Probation Office determined that Baird's criminal history category was I, resulting in a guideline sentencing range of 63 to 78 months.

The government adopted the findings in the PSR. Filing No. 14. Baird objected to the application of the five-level enhancement for distribution in exchange for a thing of value, and objected to the assessment of a two-level increase for use of a computer. Filing Nos. 12, 13, and 15. Baird also moved for a downward departure. Filing No. 21. The record shows that the parties agreed that Baird should be held accountable for more than 10 but less than 150 images. Filing No. 26, Plea Hr'g Tr. at 21-22, 24-26. The parties later agreed to the application of a twolevel enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distribution for receipt of something other than that described in subsection (A) through (E). That agreement mooted defendant's objection to the application of a five-level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for distribution for a thing of value. At the sentencing hearing, Baird orally moved for a departure and for a sentence outside the Guidelines under 18 U.S.C. § 3553(a).

II. LAW

The Sentencing Guidelines are no longer mandatory. United States v. Booker, 543 U.S. 220, 260-61, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Supreme Court held that the mandatory Sentencing Guidelines system violated the Sixth Amendment. Booker, 543 U.S. at 226-227, 125 S.Ct. 738. In the Booker remedial opinion, the Supreme Court determined that the constitutional violation would be cured by modifying the federal sentencing statute to make the Guidelines effectively advisory. Id. at 245, 125 S.Ct. 738. The range of choice in sentencing dictated by the facts of the case has been significantly broadened. Gall v. United States, 552 U.S. ___, ___, 128 S.Ct. 586, 602, 169 L.Ed.2d 445 (2007) (finding a sentence outside the Guidelines to be reasonable); Kimbrough v. United States, 552 U.S. ___, ___, 128 S.Ct. 558, 570, 169 L.Ed.2d 481 (2007) (noting that courts may vary from Guidelines ranges based solely on policy considerations, including disagreements with the Guidelines); Rita v. United States, 551 U.S. ___, ___, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) (holding that a district court may consider arguments that "the Guidelines sentence itself fails properly to reflect § 3553(a) considerations"); Cunningham v. California, 549 U.S. 270, ___, 127 S.Ct. 856, 867, 166 L.Ed.2d 856 (2007) (stating that judges are no longer tied to the sentencing range indicated in the Guidelines but are obliged to "take account of" that range along with the sentencing goals Congress enumerated in 18 U.S.C. § 3553(a)). These cases "mean that the district court is free to make its own reasonable application of the § 3553(a) factors, and to reject (after due consideration) the advice of the Guidelines." Kimbrough, 552 U.S. at ___, 128 S.Ct. at 577 (Scalia, J., concurring) (noting that "any thumb on the scales," indicating that the "the Guidelines must be followed even where the district court's application of the § 3553(a) factors is entirely reasonable" would violate the Sixth Amendment because "the `advisory' Guidelines would, over a large expanse of their application, entitle the defendant to a lesser sentence but for the presence of certain additional facts found by judge rather than jury") (emphasis in original).

Under the Sentencing Reform Act, as modified by Booker, judges are required "to take account of the Guidelines together with other sentencing goals" when fashioning a defendant's sentence. Booker, 543 U.S. at 261, 125 S.Ct. 738. As the Supreme Court recently clarified in Gall, "the Guidelines should be the starting point and the initial benchmark" in determining a sentence. Gall, 552 U.S. at ___, 128 S.Ct. at 596 ("a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range."). District courts must therefore "give respectful consideration to the Guidelines," but are permitted "`to tailor the sentence in light of other statutory concerns as well.'" Kimbrough, 552 U.S. at ___, 128 S.Ct. at 570 (quoting Booker, 543 U.S. at 245-246, 125 S.Ct. 738).

Accordingly, "the Guidelines are not the only consideration, the district judge should consider all of the § 3553(a) factors" to determine the appropriate sentence. Gall, ___ U.S. at ___, 128 S.Ct. at 596. The Sentencing Reform Act "contains an overarching provision instructing district courts to `impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing, including `to reflect the seriousness of the offense,' "to promote respect for the law," to provide just punishment for the offense,' to afford adequate deterrence to criminal conduct,' and `to protect the public from further crimes of the defendant.'" Kimbrough, 552 U.S. at ___, 128 S.Ct. at 570. Also, the statute "further provides that, in determining the appropriate sentence, the court should consider a number of factors, including `the nature and circumstances of the offense,' `the history and characteristics of the defendant,' `the sentencing range established' by the Guidelines, `any pertinent policy statement' issued by the Sentencing Commission pursuant to its statutory authority, and the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.'" Id.

The district court "may not presume that the Guidelines range is reasonable," but must "make an individualized assessment based on the facts presented." Gall, 552 U.S. at ___, 128 S.Ct. at 597. If the court decides that an outside-Guidelines sentence is warranted, the court must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. Id. The Supreme Court rejects, however, the notion that "`extraordinary' circumstances [are required] to justify a sentence outside the Guidelines range" and rejects "the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence." Id. at 595.

Congress established the Sentencing Commission "to formulate and constantly refine national sentencing standards," in 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. United States, 551 U.S. at ___, 127 S.Ct. at 2464. In that institutional role, the Sentencing Commission "has the capacity courts lack to `base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.'" Kimbrough, 552...

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