624 F.3d 592 (3rd Cir. 2010), 09-1318, United States v. Grober

Docket Nº:09-1318, 09-2120.
Citation:624 F.3d 592
Opinion Judge:BARRY, Circuit Judge.
Party Name:UNITED STATES of America, Appellant v. David GROBER. United States of America v. David Grober, Appellant.
Attorney:George S. Leone, Esq., Caroline A. Sadlowski, Esq. (Argued), Office of the United States Attorney, Newark, NJ, for Appellant/Cross-Appellee. Peter Goldberger, Esq. (Argued), Ardmore, PA, for Appellee/Cross-Appellant.
Judge Panel:Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges. HARDIMAN, Circuit Judge, dissenting in part.
Case Date:October 26, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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624 F.3d 592 (3rd Cir. 2010)

UNITED STATES of America, Appellant



United States of America


David Grober, Appellant.

Nos. 09-1318, 09-2120.

United States Court of Appeals, Third Circuit.

October 26, 2010

Argued: June 29, 2010.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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George S. Leone, Esq., Caroline A. Sadlowski, Esq. (Argued), Office of the United States Attorney, Newark, NJ, for Appellant/Cross-Appellee.

Peter Goldberger, Esq. (Argued), Ardmore, PA, for Appellee/Cross-Appellant.

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges.


BARRY, Circuit Judge.

It is an unassailable proposition that " [c]hild pornography harms and debases the most defenseless of our citizens." United States v. Williams, 553 U.S. 285, 307, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). We believe that, and the District Court believed that. Nonetheless, the Court was deeply concerned about the sentence the government said the Court should impose on defendant David Grober under the child pornography Guidelines. It recognized, on the one hand, the tension between a mechanical application of those Guidelines and the " outrageously high" sentence-indeed, the " truly remarkable punishment" -of 235-293 months of imprisonment they advised, and, on the other, a fair and reasonable sentence that does justice. Determined to take a long and hard look at the child pornography Guidelines in an effort to understand why Congress and the Sentencing Commission did what they did and whether it made sense both as an objective matter and as to the defendant, the Court embarked on a careful study of how the Guidelines range urged on it by the government came to be. It took evidence over twelve days, heard extensive oral argument and considered extensive written submissions, and rendered a lengthy oral opinion at sentencing and a forty-six page written opinion thereafter explaining in great detail how it arrived at what it believed to be the correct sentence for this defendant. All of this is to be much admired.

There is a flip side, however, when a district court devotes such an extraordinary amount of time and attention to an issue so clearly troubling it and so freely expresses its concerns on the record, reaching out for whatever might assist it in assuaging those concerns. The flip side is this: in the unusual case, such as this, in which a district court arguably does too much rather than too little, there is much more grist for the mill, as here the government points to everything the District Court did and did not do and everything it should and should not have done. After this microscopic examination-but without ever challenging the substantive reasonableness of the ultimate sentence imposed-the government has found what it describes as procedural error. We will affirm.

I. Background

In December 2005, acting on a tip from America Online regarding child pornography attached to emails involving David Grober's account, law enforcement officers of the State of New Jersey executed a search warrant at Grober's home and discovered what was eventually determined to be approximately 1500 images and 200 videos of child pornography among an even larger collection of adult pornography. In October 2006, a federal grand jury returned an indictment charging Grober with one count of receiving and distributing child pornography and one count of possessing child pornography. Grober was offered a plea to possession only, and he declined, as he had also done pre-indictment.

In September 2007, two weeks before the scheduled trial date and after plea

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negotiations had broken down, a superseding indictment was returned, charging Grober with two counts of transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1); three counts of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A); and one count of possessing material containing images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On October 4, 2007, Grober pled guilty to all six counts without a plea agreement, admitting that on July 9, 2005, he sent an email containing a video of child pornography (Count One); on July 27, 2005, he received an email containing an image of child pornography (Count Two), and sent back an email containing approximately seventeen images of child pornography (Count Three); on August 16, 2005, he received two separate emails, each containing an image of child pornography (Counts Four and Five); and in December 2005, he collected images and videos containing child pornography from the Internet and stored and possessed this material on computer hard drives and compact discs (Count Six).

Under U.S.S.G. § 2G2.2(a)(2), Grober's base offense level (after grouping) was 22, which, with a criminal history category of I, resulted in a Guidelines range of 41-51 months imprisonment. With the enhancements to § 2G2.2 that appeared applicable, however, Grober's offense level increased to 40. The eighteen levels of enhancements were comprised of two levels for material involving prepubescent minors or minors under age twelve (§ 2G2.2(b)(2)); five levels for distributing material to receive a thing of value, but not for pecuniary gain (§ 2G2.2(b)(3)(B)); four levels for material portraying sadistic or masochistic conduct or other depictions of violence (§ 2G2.2(b)(4)); two levels for the use of a computer (§ 2G2.2(b)(6)); and five levels for possessing more than six hundred images of child pornography (§ 2G2.2(b)(7)(D)). After a two-level downward adjustment for acceptance of responsibility under § 3E1.1(a), Grober's offense level became 38 and his advisory Guidelines range became 235-293 months imprisonment, a range that it is undisputed was correctly calculated and that even our dissenting colleague does not argue was not " draconian." (Dissent at 619, 621).

The District Court, clearly troubled by the sentence of imprisonment that this Guidelines range produced, held hearings over twelve days between July and December 2008. Numerous witnesses testified-Special Agent Michell Chase, who examined Grober's child pornography collection; Professor Douglas Berman, a law professor proffered by the defense as an expert on the Guidelines over vigorous government objection; several mental health professionals; and the mother of two boys who had been sexually abused and featured in pornography found in Grober's collection. The Court also reviewed in open court a selection of fourteen images and ten videos provided by the government in support of the § 2G2.2 enhancements, as well as victim impact statements.

On December 8, 2008, the District Court held the final (thirteenth) day of hearings. Grober and his family and some friends addressed the Court and the Court heard extensive argument, after which it sentenced Grober to the mandatory minimum sentence of five years imprisonment, as well as three years of supervised release. The Court explained why it had done what it did and subsequently issued a lengthy opinion in support of the sentence, describing its efforts to " actively seek[ ] some rationale for the harsh sentence" recommended by the Guidelines and advocated by the government. United States v. Grober, 595 F.Supp.2d 382, 390 (D.N.J.2008). It noted that the government had declined

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to produce a witness, such as a representative from the Sentencing Commission, to discuss the basis for § 2G2.2, and that it found Professor Berman's testimony to be helpful. " It was through Professor Berman's testimony," the Court explained, " that [it] initially gained an understanding of the role Congress has played in the increased penalties for child exploitation offenses and how intertwined the guidelines for child exploitation offenses have become with various pieces of legislation." Id. at 391. The Court considered as well a paper written by an assistant federal public defender, Troy Stabenow, entitled Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, that criticized § 2G2.2.

The District Court also examined a handful of district court opinions that had expressed concern about the child pornography Guidelines and had found that those Guidelines were not based on empirical data. See United States v. Johnson, 588 F.Supp.2d 997 (S.D.Iowa 2008); United States v. Baird, 580 F.Supp.2d 889 (D.Neb.2008); United States v. Hanson, 561 F.Supp.2d 1004 (E.D.Wis.2008); United States v. Shipley, 560 F.Supp.2d 739 (S.D.Iowa 2008). The Court agreed with those courts that " § 2G2.2 leads to a sentence that is too severe in a downloading case." Grober, 595 F.Supp.2d at 394. It concluded:

To review, then, the Court has learned that actual working judges have decided to give these child pornography guidelines less weight in downloading cases; an experienced law professor with a widely used sentencing blog has been unable to probe the Commission's thinking why it sentences downloaders this way; and an influential article makes persuasive arguments against the rationality of § 2G2.2 in downloading cases. Also, reported cases demonstrate that bad people involved with child pornography can get long sentences without using § 2G2.2 as the basis.

Id. at 397.

The District Court discussed several additional reasons why it believed § 2G2.2 to be flawed. First, it found that most of the enhancements are essentially inherent in the crime and, thus, apply in nearly every case. Special Agent Chase testified that, of the 180 investigations she had conducted, every one involved 600 or more images, the use of a computer, and a prepubescent minor, and eighty percent had at least one image depicting sado-masochistic conduct. When the enhancements are added to the base offense level of 22-increased from 17 in 2004-the Guidelines, in the Court's view, produced " an...

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