U.S. v. Grober, No. 06-CR-880 (KSH).
| Decision Date | 22 December 2008 |
| Docket Number | No. 06-CR-880 (KSH). |
| Citation | 595 F.Supp.2d 382 |
| Parties | UNITED STATES of America, v. David GROBER, Defendant. |
| Court | U.S. District Court — District of New Jersey |
Brian Joseph Neary, Hackensack, NJ, Peter William Till, Law Offices of Peter W. Till, Springfield, NJ, for David Grober.
Joseph N. Minish, Marion Percell, Office of the US Attorney, Shana W. Chen, Office of the US Attorney, Newark, NJ, for United States of America.
Pronouncing sentence on David Grober has required this Court to look long and hard at the sentencing guidelines and the truly remarkable punishment the government seeks under them. The ultimate tension for a sentencing judge is between a mechanical application of the sentencing guidelines on the one hand, and a fair, reasonable sentence that does justice on the other. The crime of conviction in this case is David Grober's downloading of child pornography from the internet, having accessed images of child pornography through file-sharing and attachments to emails.1 The ultimate question in terms of punishing him is; When is enough enough?
In Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Supreme Court wrote: "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue."
In United States v. Faulks, 201 F.3d 208, 209 (3d Cir.2000), then Chief Judge Becker wrote about the act of sentencing as the district judge's "most important judicial responsibility, whose daunting character has not been eliminated by the Sentencing Reform Act and the Sentencing Guidelines...." In this post-Booker world, the Supreme Court wrote in Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007), that the district court's "reasoned sentencing judgment rest[s] upon an effort to filter the Guidelines' general advice through § 3553(a)'s list of factors...."
This is how the guidelines' "general advice" works in David Grober's case. Grober entered a plea of guilty without stipulations to all counts in a six-count superseding indictment. The sixth count is for possession of child pornography, and the other five counts charge individual incidents of "receipt" and "transportation" of child pornography over the internet. The possession count carries a sentence of up to 10 years, and each of the receipt and transportation counts carries a mandatory minimum of five years and a statutory maximum of 20 years. According to the sentencing computation in the Presentence Report ("PSR"), the base offense level for Grober's crimes, after grouping the counts2 for sentencing purposes, is 22, calling for a sentencing range of 41-51 months.
But specific offense characteristics laid out in § 2G2.2, the sentencing guideline applied by United States Probation in the Presentence Report ("PSR"), increased the offense level by 18 levels to level 40. Because Grober pleaded guilty after the government had taken substantial steps to prepare for trial, he was afforded a two-level adjustment for acceptance of responsibility. At level 38, then, Grober—a first-time offender who entered a plea and accepted responsibility for his crimes—faced a guidelines sentencing range of 235 to 293 months, most of which exceeds the statutory maximum of 240 months/20 years. It is this staggering sentence that the government is seeking.
The sentencing guidelines "should be the starting point and the initial benchmark" in all sentencing proceedings. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). But when the bottom of the guidelines for a defendant entering a plea is just months shy of the 20 year statutory maximum, one gets busy asking questions about how that happened. This Court has asked itself: Am I working with a rational sentencing structure, or administering the Code of Hammurabi? A Texas defense lawyer in a similar case posed the question starkly in a brief published on the internet: Have we gone mad?3
After taking testimony over days of hearings and reviewing numerous written submissions, the Court has concluded that U.S.S.G. § 2G2.2, fails to provide a just and reasoned sentencing range given the facts of this case and the background of the defendant. As a consequence the Court has significantly varied downward in sentencing David Grober. This opinion records and supplements the reasons placed on the record on his sentencing day.
For ease of reference, the opinion is divided into sections and headings as follows:
DOES § 2G2.2 PROVIDE A REASONABLE SENTENCE IN THIS DOWNLOADING CASE?
U.S.S.G. § 2G2.2 applies to offenses that involve possession and transportation of child pornography. It has a long title and covers a variety of offenses, all relating to pornographic material.
Under this guideline, the base offense level is 22 (§ 2G2.2 (a)(2)), calling for a sentencing range for a criminal category I offender of 41 to 51 months. Under § 2G2.2 (b), which lists specific offense characteristics, if the material involves prepubescent minors or minors under age 12, add 2; if the material portrays sadistic and masochistic conduct or other depictions of violence, add 4; if the defendant possesses a quantity of child pornography in excess of 600 images, add 5; if the defendant used a computer and an interactive computer service in acquiring the child pornography, add 2; and if the defendant distributed images of child pornography "for the receipt of a thing of value, namely additional images or videos of child pornography," add 5. The adjusted offense level becomes 40, calling for a sentencing range of 292 to 365 months. This is almost 25 to over 30 years.
At his plea hearing, David Grober admitted the following facts through negotiated questioning:
he sent someone an e-mail message on his computer that contained a video of child pornography on July 9, 2005, using his AOL account;
on his computer, using the same AOL account, on July 27, 2005, he received an e-mail message from someone else that contained an image of child pornography and minutes later he sent back an e-mail message that contained approximately 17 images of child pornography;
on his computer, using the same AOL account, on August 16, 2005, he received two separate e-mails from yet another sender that contained an image of child pornography;
during the month of December, 2005, he collected images and videos containing child pornography from the internet that he stored and possessed on computer hard drives and portable compact discs;
in the child pornography above there were numerous individuals who were clearly minors, some of whom were under the age of 12, and that on the
images and videos he received, exchanged, possessed and stored, these individuals were engaging in sexual conduct with other minors or adults and/or posing in a sexually explicit manner.
The government presented testimony of a forensic specialist, Special Agent Michell Chase ("SA Chase") of Immigration and Customs Enforcement ("ICE"), who analyzed the content of David Grober's seized computer hard drives and compact discs. She stated that Grober possessed a large collection of pornography, most of it adult porn and therefore legal.5 In the mix were more than 1500 images and over 200 videos of child pornography. SA Chase testified that she examined all the images and videos of child pornography, and classified them as to content. On two hard drives, she found 12 e-mails sent to and received by Grober that had...
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USA v. David Grober. USA.
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...efforts in determining the likelihood of recidivism and in crafting appropriate sentences. See, e.g., United States v. Grober, 595 F.Supp.2d 382, 409–12 (D.N.J.2008) (hearing testimony from mental health experts to aid in sentencing defendant convicted on guilty plea of possession, receipt ......
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